
    Samuel Tucker, Adm’r, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.
    
      (Superior Court of Buffalo,
    
    
      General Term,
    
    
      Filed November 8, 1890.)
    
    1. Negligence—Submission oe question to jury.
    Plaintiff’s intestate, a boy twelve years old, arrived'at defendant’s crossing with his brother, and the latter passed over the track in safety, while the deceased rested a bundle on the bumper of a car standing partly across the walk, and after turning around and looking, passed on and was struck by the tender of an engine backing on the next track. The wind was blowing hard, and it was snowing, and a string of cars had been run across the crossing, and a cut made to allow passage. The evidence as to whether signals were given, and the flagman at his post, was conflicting. Held, that the court properly refused a request to direct a verdict for defendant, and submitted the case to the jury. °
    3. Same—Evidence.
    It is not objectionable to show the physical condition of defendant’s flagman, if it in any way interfered with the proper discharge of his duty, as bearing on flefendant’s negligence. In any other view such evidence is immaterial, and its admission not prejudicial to defendant.
    3. Same—Charge.
    The court was requested to charge that there was no evidence that the deceased looked for an approaching train, and replied that he did not know, and would leave it to the jury. Held, no error.
    Appeal from judgment in favor of plaintiff, entered on verdict
    
      Andrews & Hill, for resp’t; McMillan, Qluclc & Pooley, for app’lt.
   Titus, J.

This action was commenced to recover damages for killing the plaintiff’s intestate, a boy twelve years of age, by the defendant, while crossing Smith street, in this city, on the 27th day of December, 1888. It appears from the evidence that on the last named day the plaintiff’s intestate and his brother were passing southerly down Smith street carrying loads upon their shoulders ; that when the deceased arrived at the crossing his brother passed on across the tracks and he set down his bag on the bumper of a car standing near and partly across the cross walk, looked around, and then placed it on the other shoulder and passed on, and when he arrived at the next track of defendant’s road he was struck by the tender of an engine backing down from Bast Buffalo. It also appears that it was snowing, and the wind was blowing from the southwest at the rate of from forty to forty-five miles an hour; that the crossing was one much used by the people on foot and with vehicles; that the defendant maintained a flagman at the crossing and a flag shanty a few feet south of the tracks; that at the time of the accident the defendant’s employes had run a string of freight cars on the switch track crossing Smith street, and had cut an opening through, leaving the ends of the cars close up to the sidewalk, and on the west side the end of the car projecting over the sidewalk. The other facts in the case are controverted. The'plaintiff gave considerable evidence tending to show that no bell was rung or whistle blown; that the engine was going at a rate of speed variously stated by different witnesses, from ten to twenty miles an hour; that the flagman was in his shanty and not at his post to warn people of approaching trains.

The defendant’s evidence tends to dispute some or all of these propositions. It is claimed by the defendant that the flagman was at his post at the crossing; that the bell was rung and the whistle sounded. It is not disputed that the whistle sounded sharp, short toots at some time While crossing Smith street, the plaintiff claiming it was after the boy was struck, or so near before it that it was impossible for him to get out of the way, while some of the witnesses for the defendant say that the bell was rung all of the time, and the whistle sounded before the engine crossed Smith street. In this condition of the case, with the facts touching the principal questions controverted, the defendant’s counsel asked the court to take the case from the jury and direct a verdict for the defendant.

I think the court very properly denied the request and submitted the fact to the jury under j>roper instructions. It is so well settled by such a multitude of cases in the highest court of our

state that disputed questions of fact must be left to the decision of the jury, that but a single reference is deemed necessary. Chief Judge Folger, in writing the opinion of the court of appeals in Parsons v. N. Y. C. & H. R. R. R. Co., reported in 113 N. Y., 364; 22 N. Y. State Rep., 697, states the law as maintained by the court, as follows: “ The question is whether the injured party, under all of the circumstances of the case, exercised that degree of care and caution which prudent persons of ordinary intelligence usually exercise under like circumstances. This rule must in all cases, except those marked by gross and inexcusable negligence, render the question involved one of fact for the jury.”

The only theory on which the court would have been justified in directing a verdict is either that there was no evidence from which a different conclusion could be lawfully reached, or that the boy was guilty of “ gross and inexcusable negligence.” I do not think the facts of this case warrant any such conclusion, and the fact that the deceased was a boy of but twelve years of age had an important bearing upon the question of his contributory negligence, and the court properly submitted the question to the jury. Stone v. Dry Dock R. R. Co., 115 N. Y., 104; 23 N. Y. State Rep., 551.

The exceptions taken to the admission of evidence do not seem to be meritorious. A witness was permitted to state under defendant’s objection that “he (the flagman) walks lame.” It does not seem to have much bearing upon the question of the defendant’s negligence one way or the other. It was probably called out for the purpose of corroborating the plaintiff’s theory that the flagman was in his shanty and not on duty. It does not seem to me to be objectionable to show the physical condition of the defendant’s flagman, if it in any way interfered with the proper discharge of his duty, as bearing upon the negligence of the defendant. In any other view it is wholly immaterial, and it is not apparent how the defendant was prejudiced by it.

The defendant complains because the court did not charge in the language requested, “ that there is no evidence in the case that the plaintiff’s intestate looked; no direct evidence in the case that the boy looked for the approaching train after he crossed the switch track.”

The court, in reply to the request, said: •* I do not know. I will leave that to the jury to say,” neither charging that there was or was not such evidence. Whether the court will, at the request of a party, read the evidence of a witness upon a given point, is one in the discretion of the trial court, and if the court declines to do so, and submits the question to the jury, no error is committed. But the court could not have safely charged as requested by the defendant’s counsel, as there was evidence from which the jury might find that the boy looked.

The witness Miller, at folios 103 and 104, says: “I saw a boy resting upon the drawhead with a bag. His eyes and all his movements were towards Bast Buffalo.” This is the direction from which the engine was coming. Then again: “ He looked towards Bast Buffalo. If he had his eyes open-1 could not swear to it, but his face was towards Bast Buffalo.” Again, at folio 112, the same witness says: “ He stood looking around, facing-tow ards Bast Buffalo.”

N o other question is raised and we do not think any error was committed. The charge presumably stated the rights of the parties correctly, and not unfavorably to the defendant, as no complaint is made, and as the smallness of the verdict would seem to indicate.

The judgment, therefore, should be affirmed, with costs.

Hatch, J., concurs; Beckwith, Ch. J., did not sit.  