
    Jennie Quinlan, as Administratrix, etc., of William J. Quinlan Deceased, Appellant, v. New York, New Haven and Hartford Railroad Company, Respondent.
    
      Negligence — proof that an intestate had previously passed over the road on which he was hilled — it is competent on the issue of contributory negligence — charge as to a jury speculating on the intestate having passed through a space of twelve inches in a telltale.
    
    Upon, the trial of an action to recover damages resulting from the death of the plaintiff’s intestate, a hrakeman employed by the defendant railroad company, who was supposed to have been killed by coming in contact with a low bridge, the telltale signal guarding which was alleged to have been in a defective ■ condition, evidence as to whether or not the intestate had passed backward and forward under the bridge is competent upon the issue of contributory negligence, even though it be assumed that the evidence would not be competent upon the question Whether the intestate assumed the risks of the employment, the defendant having neglected to plead that defense in its answer. (Per Woodward and Hirschberg, JJ.)
    Where it appears that after the accident one strand of the telltale signal was found to be missing, leaving a space of about twelve inches, the court, in the absence of evidence that the intestate actually passed through the space in the telltale, may properly refuse to permit the jury to speculate upon the question whether or not he did, in fact, do so. (Per Woodward and Hirschberg, JJ.)
    Appeal by the plaintiff, Jennie Quinlan, as administratrix, etc., of William J. Quinlan, deceased, from a judgment of the Supreme-Court in favor of the defendant, entered in the office of the clerk of the county of Dutchess on the 24th day of June, 1903, upon, the verdict of a jury, and also from an order entered in said clerk’s office on the 8th day of July, 1903, denying the plaintiff’s motion for a new trial made upon the minutes, t
    
      Robert H. Barnett, for the appellant.
    
      Walter O. Anthony, for the respondent.
   Woodward, J. :

Plaintiff’s intestate was a brakeman on one of the freight trains of the defendant, operating between Fishkill Landing and Boston, and is supposed to have been killed by coming in contact with a low bridge located in the vicinity of Wicopee Junction, N. Y. The negligence of the defendant alleged in' the complaint is that the defendant did not provide, at the time and place aforesaid, a reasonably safe place for decedent to work in the discharge of his duties while passing under the aforesaid bridge ; and in failing to provide, maintain and keep in proper condition, necessary, sufficient and suitable warning signals or telltales at the western approach to the aforesaid bridge,” etc. Although upon a careful reading of the evidence we have been unable to find any evidence from which the inference might properly be drawn that the plaintiff’s intestate exercised any degree of care on the occasion, the learned trial court permitted the case-to go to the jury upon the question of the location and sufficiency of the telltale signals^ designed to warn brakemen of the approach to low bridges, and that body has found that the evidence failed to show negligence on the part of the defend- • ant, or absence of contributory negligence on the part of plaintiff’s intestate. At least their verdict was one of no cause of action, and it must be assumed that they found the facts against the plaintiff’s theory. The plaintiff appeals from this judgment, and urges error on the part of the learned trial court in permitting a witness to answer the question: During that time, had he passed backward and forward under this bridge % ” The objection raised was that the question of plaintiff’s intestafe’s acceptance of the risks of the employment was not pleaded, and that evidence tending to show that the plaintiff’s intestate knew of the bridge was not within the issues. Assuming that this is the law ; that the defense is an affirmative one, to be pleaded and proven (See Dowd v. N. Y., O. & W Ry. Co., 170 N. Y. 459, 469), yet the answer to the question bore, upon the contributory negligence of the deceased; for if he knew that the bridge was there, as he must have known if he had repeatedly passed over the road a considerable length of time before the accident, he would be charged with a higher degree of care than would have been expected if this had been his first trip over the line. His contributory negligence was an issue in the casé, and the degree of care he was called upon to exercise depended, in some measure, upon his knowledge of the dangers to be encountered; and - this entirely independent of the acceptance of the risks of the occupation. But in submitting the question of the defendant’s negligence in reference to the telltale signals to the jury, the learned court obviously determined as a matter of law that there had. been no acceptance of the risks of the employment on the part of the plaintiff’s intestate, so that there could have been no prejudice in the admission of this evidence, even though it be conceded to have been erroneously in the case.

We are of opinion that the learned trial justice in refusing to permit the jury to speculate upon the possibility of the plaintiff’s intestate passing between the ropes of the telltale without being hit by them, was well within the law. The evidence most favorable to the plaintiff was that after the accident it was found that one strand of the telltale was missing, and -that this left a space of about twelve inches through which, it was contended, the plaintiff’s intestate might have, passed without receiving the warning for which- the same was designed; There was no evidence that this strand had been out long enough so that it was the duty of the defendant to know of the fact and correct the error; no evidence that the intestate did in fact pass through this opening. The case presented only the possibility that if the deceased had been standing in exactly the right spot, and under exactly the right conditions, he might have passed through without being touched, but it must be obvious ,that a. man of average size could not, under any ordinary circumstances, pass between dangling ropes twelve inches apart and not be touched by them, and the evidence did not warrant permitting a jury to speculate upon the possibilities. The exception to the refusal of the court to charge that the undisputed evidence shows that Quinlan, when last seen alive that morning, was on the tank of the engine,” is without merit. It is not the province of the court to charge facts, but to instruct the jury in the law. The court, in refusing to charge, said : “ I have already told them that, that one witness said so, and others saw him elsewhere. I will not assume to say where he was, because that must be for the jury.” This was obviously proper, and the exception to the charge presents no question entitling the plaintiff to a reversal of the judgment.

The judgment and order appealed from should be affirmed, with costs.

Hirschberg, J., concurred; Jenks, J., concurred in result; .Goodrich, P. J., and Hooker, J., dissented.

Judgment and order affirmed, with costs.  