
    John Kissenger, Respondent, v. The New York and Harlem Railroad Company, Appellant.
    It is not error for a trial court to refuse to charge the jury upon an irrelevant point.
    The refusal of the court to repeat a charge is not error.
    Plaintiff was injured while crossing defendant’s track, by an engine which was being backed down on the track. In an action to recover for the injury, it appeared that there were some empty cars standing on another track between the track upon which was the engine and plaintiff as he approached the track. Defendant’s counsel asked the court to charge, that there was no negligence on the part of the defendant in using that particular engine; also, that leaving the empty cars standing on the track was not negligence; the court refused so to charge. Meld, no error.
    (Argued April 28, 1874;
    decided May 26, 1874.)
    Although it is not negligence for a railroad company to omit to keep a flagman at a crossing, yet, if one is employed, bis neglect to perform the usual and ordinary functions of the place may be sufficient to charge the company. If one approaching a crossing where there is a flagman does not hear the bell of an approaching engine, and the flagman neglects to give any warning and an injury happens, solely produced by such neglect, it is sufficient to make the company liable.
    Appeal from a judgment of the General Term of the Superior Court of the city of New York, affirming a judgment in favor of plaintiff, entered on a verdict.
    This action was brought to recover damages for injuries to plaintiff’s property and himself, alleged to have been occasioned by defendant’s negligence.
    Plaintiff, a carman, on the 2d November, 1871, was engaged with his horse and truck in carting a load of furniture, in the city of New York; in attempting to cross Fourth avenue, on which the defendant’s tracks are laid, his truck was struck by an engine of the defendant’s which was backing down the track, with such force that the truck was demolished, the horse killed and the plaintiff injured. There are several tracks of the defendant’s railroad on the Fourth avenue, above and below Fifty-first street. At the time of the collision there were a number of boxed freight cars standing on the track on the east side of the avenue, both above and below Fifty-first street. There was a break in the line opposite Fifty-first street, so that a passage was left open across the Fourth avenue sufficiently wide for a team to pass. The engine that collided with the plaintiff’s truck was one used for switching in and out trains from the depot, and was backed down on the third track from the east line of the Fourth avenue, on the plaintiff’s truck. The freight cars standing at rest on the easterly track were so situated as to more or less obstruct the view beyond them up and down the avenue, of a person approaching the railroad from the east, on foot or in a wagon, and would measurably prevent him from seeing the engine on the third track. Plaintiff’s evidence tended to show that the bell upon the engine was not rung; plaintiff testified that he did not hear it; also that a flagman, employed and placed by the defendant at the crossing, neglected to attend to his duties or to give any warning. The evidence of defendant conflicted with this.
    The court charged the jury, among other things, that if they believed that the railroad company did employ a flagman at that place; that the flagman was there at the time the engine started to come down the track; and that seeing the approach of the plaintiff’s truck, he went out and made a demonstration by waving his flag to the plaintiff to stop, then the railroad corporation did all that the law requires them to do under the circumstances in this case: and if the plaintiff, in opposition to all that, still persisted in crossing the track, and was injured by it, then it must be attributed to his own contributive negligence. Also, that it was unnecessary, in this case, that they should believe that the bell was rung, if they believed that the flag was used, because that is the best precautionary instrument used at those places for the purpose of preventing an accident of this character.
    The counsel for the defendant, at the conclusion of the charge, requested the court to charge the jury as follows:
    “ 1. There is no evidence of negligence on the part of the defendant in using an engine of the character and construction of the one known as No. 7.
    
    “ 2. There is no evidence of negligence on the part of the defendant in the fact that the freight cars were placed as shown by the evidence; the same not having been shown not to be proper and necessary.
    
      “ 3. The plaintiff cannot recover unless the jury find, in addition to the fact that the flagman did not warn him, the further fact that the engine bell was not rung.
    
      
      “ 4. If the flagman warned the plaintiff, and the hell was rung, there is no negligence in the case on the part of the defendant.”
    The court refused so to charge, and counsel for the defendant thereupon duly excepted.
    
      Elliott F. Shepard for the appellant.
    Plaintiff was guilty of contributory negligence. (Hegan v. Eighth Ave. R. R. Co., 15 N. Y., 382.) Defandant was free from negligence, and plaintiff should have been nonsuited. (Wilbrand v. Eighth Ave. R. R. Co., 3 Bosw., 315; Stevens v. O. and S. R. R. Co., 18 N. Y., 422.) The court erred in refusing to charge that the fact that the freight cars were placed, as the evidence showed, was not evidence of negligence on the part of defendant. (Whitaker v. Eighth Ave. R. R. Co., 51 N. Y., 299; Wilds v. H. R. R. R. Co., 24 id., 442; 29 id., 315.) The General Term erred in holding that it was defendant’s duty to maintain a flagman at this crossing. (Beisiegel v. N. Y. C. R. R. Co., 40 N. Y., 14.) There was sufficient evidence to submit to the jury to charge the defendant or exonerate the plaintiff. (Seibert v. Erie R. Co., 49 Barb., 583.)
    
      M. L. Townsend for the respondent.
    The cause having been tried by a jury, the Court of Appeals has no power to set aside the verdict and grant a new trial upon questions of fact. (Parker v. Jervis, 3 Keyes, 271; Sandford v. Eighth Ave. R. R. Co., 23 N. Y., 343.)
   Church, Ch. J.

The evidence was conflicting both as to the negligence of the plaintiff and the defendant, and this court has no power to review it, as seems to have been supposed by the defendant’s counsel. The injury occurred while plaintiff was crossing Fourth avenue at Fifty-first street, from the west, by an engine of defendant which was being backed down. The negligence of the defendant was predicated upon the omission to ring the bell, and the neglect of the flagman employed at that crossing to attend to his duties, or give any warning of the approaching engine. It is more than probable that the bell was in fact rung, although the plaintiff testified that he listened and did not hear it. The main contest related to the conduct of the flagman. The plaintiff stated that he did not see the flagman. Other witnesses saw him, but stated that he was standing by the side of a stationary freight car with his flag under his arm, in conversation with another person. On the other hand the flagman himself, and several other witnesses, testified that he warned the plaintiff to stop, that the plaintiff did stop, but immediately started up his horse and went on to the crossing in spite of the warning. In addition to this there was evidence that the plaintiff and his brother, who was with him, were going at a rapid rate with their heads down, and giving no attention to surrounding objects. They testified, however, and were to some extent corroborated, that they were proceeding on a walk with a load of furniture, and upon approaching the avenue that they stopped and looked both ways, and saw no engine,-and that empty box-cars were standing on the track between them and the track upon which the engine was backing down, that they listened and heard no bell or whistle, and saw no flagman. The court upon this evidence was justified in submitting the question to the jury, and the motion to nonsuit was properly refused. The charge of the court was very fair and no exception was taken to any part of it.

There were four requests to charge which were refused. The first, that there was no negligence in using that particular engine, was an abstract proposition of no moment. No evidence of claim had been made that the engine was not in all respects proper, and it is not error to refuse to charge upon an irrelevant point. The second point, that it was not negligence in the defendant that the box-cars were standing on the track, is of a similar character. No such allegation was made upon the trial. The standing cars were need upon the question of the plaintiff’s negligence as to whether his view was obstructed, and not as the foundation of negligence on the part of the defendant.

The refusal to charge the third request was not error. Although it is not negligent for a railroad company to omit to keep a flagman, yet if one is employed at a particular crossing, his neglect to perform the usual and ordinary functions of the place may be sufficient to charge the company. The request, therefore, that the jury must find both a neglect of the flagman and an omission to ring the bell, was not tenable. If the plaintiff did not hear the bell and there was a neglect to give any warning by the flagman, and such neglect solely produced the injury, it was sufficient. As to the fourth request, that if the flagman warned the plaintiff and the bell was rung there was no negligence, the court had charged, distinctly, more favorably to the defendant than the request required. The court had charged that if they should believe the bell was not rung, yet if the flagman gave the warning, the company did all that the law required and were absolved from responsibility. It was unnecessary to again repeat it, and we cannot see that it was possible that the jury could have been misled. There was no error in law committed and the ease appears to have been fairly submitted to the jury and we cannot review their verdict upon the facts. The amount of the verdict, if any should have been given, was reasonable, which is not always the case in actions against railroad companies. But little, if anything, more than the value of the property destroyed was recovered, although it is undisputed that the plaintiff received some personal injuries.

The judgment must be affirmed.

All concur.

Judgment affirmed.  