
    Catharine P. Daniels, Admr’x., etc., Resp’t, v. The Staten Island Rapid Transit R. R. Co., App’lt.
    
      (Supreme Court, General Term,Second Department,
    
    
      Filed December 9, 1889.)
    Negligence—Railroads.
    In an action against a railroad for the death of plaintiff’s intestate the evidence whether the engine had a headlight was conflicting, and the court charged that if the jury was satisfied that deceased did not discover the train because there was no headlight and plaintiff was free from negligence the defendant was liable. Held, that this eliminated all other questions of negligence from the consideration of the jury and their verdict for the plaintiff would not be disturbed.
    Appeal from judgment in favor of plaintiff, entered on verdict of a jury.
    Action for the negligent killing of plaintiff’s intestate by defendant. Deceased who was deaf was attempting to cross the track on a dark night. He waited for a train to pass and upon then attempting to proceed was struck by a train which should have passed five minutes before. There were no gates at the crossing and but one flagman, who was on the other side. The evidence as to whether the train which struck the deceased had a headlight was conflicting.
    
      Tracy, MacFarland, Boardman & Platt, for app’lt; Sidney F. Bawson, for resp’t.
   Dykman, J.

This is an appeal from a judgment and order denying a motion for a new trial in an action for the recovery of damages for causing the death of the intestate husband of the plaintiff.

The testimony presented the usual questions which arise in this class of cases and the principal accusation against the defendant was the absence of lights sufficient to enable the deceased man to discover the approach of the train that caused his death.

The evidence made a case for the consideration of the jury, and the charge of the trial judge laid a burden upon the plaintiff, of which the defendant can make no complaint. The attention of the jury was very pointedly directed to the question of lights in the following language: “Was it because there was no head light that he did not discover the train and thus avoid the accident? If you are satisfied of that, then the defendant was negligent, and if the plaintiff was free from negligence the defendant was liable.” tinder that charge it may well be assumed that all other questions of negligence on the part of the defendant were eliminated from the consideration of the jury, and the defendant was found guilty of negligence respecting the head light of the locomotive engine, and that the intestate of the plaintiff was found free from negligence in all respects.

Such a finding leaves but small scope for the action of an appellate court. The testimony respecting the lights was quite conflicting, the accident occurred at a highway crossing, and trains from opposite directions were run over the crossing very nearly at the same time.

We do not, therefore, feel at liberty to interfere with the verdict of the jury, and the judgment and order appealed from should be affirmed, with costs.

Barnard, P. J., and Pratt, J., concur.  