Robison

Appellant, a Minnesota corporation, operates a railroad which crosses at grade a public highway (Permanent Highway No. 32, also known as Española Road) in Spokane County, Washington. At that crossing, on July 18, 1941, an automobile driven by Wayne Robison, hereafter called decedent, collided with the locomotive of a passenger train operated by appellant, and decedent was killed. As administratrix of decedent’s estate, appellee, a citizen of Washington, brought an action against appellant for damages in the sum of $59,636, alleging that the collision was caused by appellant’s negligence. Answering, appellant denied that allegation and alleged that the collision was caused by decedent’s negligence. There was a jury trial. At the close of all the evidence, appellant moved the court for a directed verdict. The motion was denied. There was a verdict for appellee for $5,000. Appellant moved for judgment notwithstanding the verdict. The motion was denied, 1 and judgment was entered for appellee. From that judgment this appeal is prosecuted.

There is evidence that the engineer driving the locomotive with which decedent’s automobile collided failed “to ring the. bell or sound the whistle…

(dissenting).

The question of decedent’s want of ordinary care was submitted to the jury under proper instructions and was resolved against appellant. Thus the sole inquiry is whether his contributory negligence was established as a matter of law. For the *355 reasons clearly and fairly stated by the trial judge in his published opinion I think the question was for the jury. The judgment should be affirmed.