
    Patrick J. McPhillips, Adm’r, Resp’t, v. The New York, New Haven & Hartford R. R. Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed April 6, 1891.)
    
    Negligence—Charge.
    Plaintiff’s intestate crossed defendant’s track and returned to warn back two boys who were following him. He then started to cross again, but his foot became entangled with the track and he was run over and killed. When he started to recross,the train was approaching rapidly in full view. The court was requested to charge that if he “ attempted to cross with the train approaching in plain sight and at or nearer than the fourth telegraph pole below the crossing, he was guilty of contributory negligence and cannot recover.” And answered: “ I leave that to the jury; it is a question of fact.” Held, error; that on a conceded or supposed state of facts the question of contributory negligence is one for the court, and it is error to submit it to the jury.
    Appeal from judgment on a verdict, and from order denying motion on the minutes for a new trial.
    Action by administrator to recover damages for the negligent killing of his intestate.
    
      Henry W. Taft, for app’lt; Christopher Fine, for resp’t.
   Per Curiam.

The omission of counsel to insert in the case a statement that it contains all the evidence precludes consideration bf the proposition so elaborately argued, that the verdict is against phe weight of evidence. Claftin v. Flack, 36 N. Y. State Rep., [728; Arnstein v. Haulenbeek, 11 N. Y. Suppl., 701; 34 N. Y. State Rep., 297.

Revertheless, the judgment must be reversed, for prejudicial Error in the charge to the jury.

| The action is to recover damages for the death of a lad, alleged to have been caused by defendant’s negligenee. The deceased paving crossed the railway, returned to warn back two boys who Ivere following him. He then started to cross again, but his foot became entangled on the track, and before he could extricate liirnielf he was run over and killed. Evidence was given tending to Ihow that when he attempted to recross the track a rapidly approaching train was in full view, past the fourth telegraph pole, End at a distance less than 300 feet away. Thus was presented Ihe question of the contributory "negligence of the defendant; and Iccordingly the court was requested to charge, that “ if the plaintiff’s intestate attempted to cross, with the train advancing in plain sight, and at or nearer than the fourth telegraph pole below the crossing, he was guilty of contributory negligence, and cannot recover.

“ The court: I leave that to the jury; it is a question of fact. The defendant's counsel thereupon excepted.’’ Here was manifest error. The question of contributory negligence, upon a conceded or supposed state of facts, is one of law for the court. Gonzales v. R. R. Co., 38 N. Y., 440; and it is error to submit it to the jury. Glacius v. Black, 67 N. Y., 568. It was the duty of the court to instruct the jury as to the law upon a predicament of fact presented by the evidence.

The question involved was the vital one in the case; and we cannot say but that, had the court given the correct instruction touching it, the jury would have found that the negligence of the decedent was the cause of his death. Indeed, upon review of this very case on appeal from a judgment for plaintiff at a former trial, we held that the attempt of the plaintiff to cross the track under the circumstances indicated above “was negligence on his part, whether he could or could not have crossed in safety had he not been delayed by catching his foot or stumbling, and that a motion to dismiss the complaint on the ground of his contributory negligence should have been granted.’’ 12 Daly, 366. And such is the law as propounded by the court of appeals. Ernst v. R. R. Co., 35 N. Y., 9; Tolman v. R. R. Co., 98 id., 203-4; McClain v. R. R. Co., 116 id., 465; 27 N. Y. State Rep., 549 ; Woodard v. R. R. Co., 106 N. Y., 369; 11 N. Y. State Rep., 169; Donnelly v. R. R. Co., 109 N. Y., 16 ; 14 N. Y. State Rep., 29.

Other errors are apparent on the record; but the fatal effect of the one considered dispenses with the discussion of them.

Judgment reversed and new trial ordered, costs to abide the event.

Allen, Bischoff and Pryor, JJ., concur.  