
    ANN CRAWFORD, Respondent v. THE DELAWARE, LACKAWANNA & WESTERN R. R. CO., Appellant.
    . Negligence—Flagman, presence or absence at crossing, as bearing on.
    
    It is error to charge the jury that it is for them to determine whether there is negligence in not having a flagman at a crossing at the particular time, and under the particular circumstances when, and under which the accident complained of occurred.
    
    In this case the court reversed judgment entered on verdict for plaintiff, on the above ground.
    Before Sedgwick, Cli. J., Freedman and Trttax, JJ.
    
      Decided June 23, 1887.
    Appeal by defendant from a judgment entered upon a verdict rendered by the jury in favor of the plaintiff, on a second trial'of the action.
    On the first trial a verdict was rendered for defendant under the direction of the court. Upon plaintiff’s appeal from the judgment entered on that verdict, the judgment was reversed and a new trial ordered. (For the report of the case see 54 Super. Ct. 262.) The plaintiff was injured, as appears by the report, by the vehicle in which he was riding being collided with by a train of defendant’s, at a crossing. On this second trial it was conceded that there was no flagman at the crossing. Defendant’s counsel requested the court to charge that defendants were not guilty of negligence in not keeping a flagman there. This the court refused; but charged: “They were not guilty of negligence in not keejDÍng a flagman there at all times and under all conceivable circumstances. The jury must determine whether at this particular time, or under these particular circumstances they were negligent in not having a flagman there.” Defendant’s counsel excepted to the refusal to charge as requested, and to the charge as given.
    The plaintiff had a verdict from the judgment entered, on which defendant appealed.
    
      Hamilton Odell, attorney and of counsel for appellant, argued:
    This charge was at right angles with the settled law of the state. Biesiegel v. N. Y. Central Co., 40 N. Y. 0 ; Grippen v. N. Y. Central Co., 40 Ib. 34; McGrath v. N. Y. Central Co., 63 Ib. 522; Houghkirk v. D. & H. Canal Co., 92 Ib. 226.
    
      Holmes & Adams, attorneys, and Artemas H. Holmes of counsel for respondent, on the question decided on the opinion, argued:
    The submission to the jury of the question whether, under all the circumstances of this case the defendant was negligent, was proper. Biesiegel v. N. Y. Central Co., 40 N. Y. 13; Webber v. Same, 58 Ib. 458 ; Barry v. Same, 92 Ib. 295; Finkerstein v. Same, 2 N. Y. State Rep. 680; Dyer v. Erie R. R. Co., 71 N. Y. 228; Crawford v. D. L. & W. R. R. Co., 54 Super. Ct. 262.
    
      
       Compare same case 54 Super. Ct., 262.
    
   By the Court.—Sedgwick, Ch. J.

I am of opinion there was error in charging that the jury was to say if, under the circumstances of the case, the defendant was negligent in omitting to place a flagman at. the crossing, and that for this reason the judgment and order should be reversed, and a new trial ordered with costs to abide the event.

Freedman and Truax, JJ., concurred.  