
    No. 6
    Nos. 18563-18571
    Pennsylvania Railroad Company, a corp., and Ralph Cook, Jr. v. George H. Lindahl, Administrator of the estate of Erick P. Lindahl, deceased.
    Error to the Court of Appeals of Hamilton county.
    829. NEGLIGENCE—-Railroad Co. and driver of auto sued jointly for death of his guest in collision—Jury question arises when testimony tends to show that driver attempted to cross tracks after seeing approaching train.
   ALLEN, J.

1. In the trial of a joint action for personal injury against a railroad company and the driver of an automobile, arising out of a collision between the automobile and a freight train operated by the railroad company upon its right of way in a public highway, in which the plaintiff is the administrator of an invited guest who sat in the automobile at the time of the accident, when there is no evidence fixing the time, if at all, the invited guest_ saw the train moving toward the crossing, it is _ not error for the court to refuse to charge the jury that “the question of notice or warning becomes immaterial if the driver of the automobile actually saw the train moving toward the crossing, for notice or warning is intended to bring to a person’s attention that which he does not or cannot observe.”

2. In such a case where the testimony tends to ’show that the driver of the automobile actually saw the moving train in time to have avoided the accident, but does not show that the invited guest saw the moving train in time to have avoided the accident, it is not error for the court to submit to the jury the ques-tio of negligence on the part of the driver of the automobile.

Judgments affirmed.

Marshall, C. J., Robinson, Jones, Matthias, Day and Conn, JJ., concur.  