
    Carmine De Cicco, as Administrator of the Estate of Emma De Cicco, Deceased, Appellant, v. The New York Central Railroad Company, Respondent. Carmine De Cicco, as Administrator of the Estate of Rosina De Cicco, Deceased, Appellant, v. The New York Central Railroad Company, Respondent.
    
      Negligence — railroads — automobile stalled on tracks at crossing struck by train — actions for death of children passengers in automobile.
    
    
      De Cicco v. New York Central R. R. Co. (2 cases), 207 App. Div. 875, affirmed.
    (Argued February 26, 1926;
    decided March 30, 1926.)
    ■ Appeal, in each of the above-entitled actions, from a judgment of the Appellate Division of the Supreme Court in the third judicial department, entered November 21, 1923, affirming a judgment in favor of defendant entered upon a verdict. The actions were to recover for the death of plaintiff’s intestates alleged to have been occasioned through the negligence of defendant. The two intestates, aged eight and eleven years, respectively, were passengers in an automobile which had become stalled upon the tracks of the West Shore railroad at the Flatbush avenue crossing in the city of Kingston and was struck by a train approaching from the north. There was evidence from which the jury could have found that the gates were closed when the automobile approached the tracks and that the same were raised by the person in charge of the automobile in order to permit it to pass onto the tracks. There was also evidence from which the jury could have found that the children had opportunity to leave the automobile after it became stalled, thus presenting the question whether they used the amount of care children of their age should have used in remaining in'the automobile.
    
      John G. Van Etten for appellants.
    
      Amos Van Etten for respondent.
   Judgment in each case affirmed, with costs; no opinion.

Concur: His cock, Ch. J., Pound, McLaughlin, Crane, Andrews and Lehman, JJ. Absent: Cardozo, J.  