question, it was caused to revolve, making about 135 revolutions per minute; and attached to it was a fan or blower connected with the cupola, which furnished a draft, and caused the fire to burn more readily. The shaft, throughout its entire length, was uncovered, and in plain view from all parts of the scaffold room. On the 22d day of January, 1902, plaintiff's intestate, a common laborer, 65 years of age, was engaged in the scaffold room, assisting a Mr. Sisson, defendant's foreman, in charging the cupola. The deceased had never worked in that room before, but had been employed by the defendant in other capacities from the 15th day of December previous. The fire having been started at the bottom of the cupola, the deceased, under the foreman's direction, had shoveled the proper amount of coal and coke into the furnace, had set down his shovel near the pile of coke on the west side of the room, had gone to the easterly side, and was handing iron to Sisson, who in turn threw it into the cupola. The iron was wet or covered with snow, so that when it came in contact with the fire it caused steam to form, which escaped through the cupola door into the scaffold room. Sufficient iron having been thrown into the furnace, the foreman closed the door, stood close in front of it, and was peeking through a crack to see how the fire was burning. At that time, and when last seen by the foreman previous to the accident, the deceased was standing close behind him. Almost immediately thereafter the foreman heard a noise, and, upon looking around, saw the deceased upon the revolving shaft, which was at least seven feet from where the deceased was standing when the foreman last saw him. So far as appears, the deceased had no duty to perform which would lead him to go to the west side of the room, or in the vicinity of the revolving shaft. What led him to do so, or how he got there, is in no manner indicated by the evidence. The shaft was immediately stopped. The deceased was found upon it about midway between the coupling and the pulley-they being several feet apart-in a reclining position, his legs between the shaft and the wall of the building, his head toward the pulley, and the rest of his body extending toward the coupling. His clothing, with the exception of his shoes and stockings, was entirely stripped off, and wound tightly about the shaft, from the pulley to and covering the coupling and the setscrew above described. Fellow workmen removed the plaintiff's intestate from the shaft, and from the injuries sustained he died soon after.

In the complaint it is alleged that the deceased, "while in and about his work, was caught by said projecting setscrew in a portion of his clothing, and was whirled around by the rapid revolutions of said. shaft, and thereby injured and killed"; and it is alleged that the defendant was guilty of negligence, because it failed to guard such setscrew as required by the provisions of the labor law. The case was tried solely upon that theory.

The only questions submitted to the jury were, in effect: First. Was the deceased caught by coming in contact with the setscrew? Second. If so, was the defendant guilty of negligence in not guarding it, or permitting it to remain in the condition in which it was? Third. Did the deceased come in contact with the setscrew through his own

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negligence? Fourth. The amount of damage sustained because of his death?

The learned trial court charged the jury:

"It is necessary, in order to recover, that the plaintiff shall satisfy you that the deceased was killed by the negligence of the defendant in failing to guard this setscrew. Of course, if the deceased was not killed by the setscrew, but by being caught by some other portion of this shaft, then the statute that the defendant must properly guard setscrews would have no application in this case. Then the case would simply turn upon whether the defendant was negligent in any other way. But this is not pointed out. The only claim made here is that this accident occurred through an unguarded setscrew, so your attention must be confined entirely to that. Unless the plaintiff shows that the deceased was killed through being caught by this setscrew, and that it was negligence upon the part of the defendant to leave it unguarded, there can be no recovery by her, and your verdict must be for the defendant."

The jury, by its verdict, must necessarily have answered each of the questions submitted favorably to the plaintiff. The correctness of such findings is challenged by the appellant; and it is urged that there is absolutely no evidence which tends to support the proposition that the deceased was caught by the set screw, or that it had anything to do with throwing him upon the revolving shaft. We think the appellant's contention in that regard should prevail. As we have seen, no witness saw the deceased when he was caught by the shaft. When he was discovered, his body was not touching or near the setscrew or coupling. There is not a word of evidence which indicates that the clothing of the deceased first became fastened to the setscrew, or that it was fastened to it at all. There is nothing to show that it commenced to wind about the shaft at the point where the setscrew was, that the screw was imbedded in any part of the clothing, or that any part of any garment was wound about the head of the screw; and there was nothing about the position of the body which throws any light upon the question as to how or what part of the clothing first became caught upon the shaft. It is a matter of common knowledge that the revolving shaft, where perfectly smooth, might have caught the clothing of the deceased, and caused the injury complained of. How, then, can it be said, upon the evidence, that it was not caught at such place, but was caught by the screw? We think such conclusion must be the result of pure speculation. It should be remembered in this connection that the setscrew in question was guarded to some extent by the flange, although, perhaps, the jury would have been justified in finding that the defendant had not fully complied with the labor law in that regard. Is it not quite as likely that the clothing of the deceased was caught by the nuts or heads on the bolts which fastened the two flanges together, as by the setscrew? Yet that was not the question submitted to the jury. They were instructed by the learned trial court that, in order to enable the plaintiff to recover, they must find that the setscrew caused the accident, and they evidently so found. We think there is no evidence which tends to support that conclusion, and for that reason the order must be reversed.

Neither is there any evidence which tends to prove that plaintiff's intestate was free from contributory negligence. No one attempts to

say that the deceased used proper care, or any care, as he went from the point where he was standing in front of the cupola door to the revolving shaft, a distance of seven or eight feet, even if we may assume that it was not negligent for him to go there when he had no business connected with his employment which at the time called him to that part of the room. No one attempts to say what the deceased did when he reached the shaft, or why he went where it was. Did he attempt to sit on the revolving shaft or handle it? Did he carelessly walk too close to it, or did he fall against it? An answer to either question must be the result of guesswork and speculation.

In O'Reilly v. Brooklyn Heights R. Co., 82 App. Div. 492, 81 N. Y. Supp. 572, recently decided by the Appellate Division, Second Department, it was said by Mr. Justice Jenks:

"It is not enough that the facts proven permit an inference, but it is held that the inference sought must be the only one which can fairly and reasonably be drawn from these facts. Ruppert v. Brooklyn Heights R. Co., 154 N. Y. 90 [47 N. E. 971]. And naturally so, else the jury would be free for guesswork.

The rule thus stated aptly illustrates respondent's contention in the case at bar. The jury was permitted to guess that the plaintiff's intestate used reasonable care and prudence in going in proximity to the revolving shaft, and that he was caught without any fault or negligence on his part, without any evidence to support that proposition. Whether or not he was free from negligence, the evidence fails to disclose, and for that reason the order appealed from should be reversed.

Order reversed and motion for new trial granted, with costs to appellant to abide event, upon questions of law only; the facts having been examined, and no error found therein. All concur.

STRICKLAND v. NEW YORK CENT. & H. R. R. CO.

(Supreme Court, Appellate Division, Fourth Department. November 17, 1903.) 1. RAILROADS-STREET CROSSINGS-FLAGMAN-DUTIES.

Where a railroad company maintains a flagman at a street crossing. where it is not compelled to have one, the flagman's duty is limited to warning persons crossing the tracks on that particular street, and his failure to warn a person crossing outside the limits of the street is not negligence.

2. SAME-INJURY TO PEDESTRIAN-EVIDENCE.

In an action against a railroad for injuries alleged to have been caused by the negligence of a flagman stationed at a street crossing where the company was not compelled to maintain one, evidence considered, and held insufficient to show that plaintiff was injured while upon the street at the crossing of which the flagman was stationed.

Appeal from Trial Term, Erie County.

Action by Eleanor Strickland, by guardian ad litem, against the New York Central & Hudson River Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

1. See Railroads, vol. 41, Cent. Dig. § 976.

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Argued before MCLENNAN, P. J., and SPRING, WILLIAMS, HISCOCK, and STOVER, JJ.

Pooley & Spratt, for appellant.

Eugene W. Harrington and E. M. Bartlett, for respondent.

WILLIAMS, J. The judgment and order should be reversed, and a new trial granted, with costs to appellant to abide event.

The action is to recover damages for injuries to the plaintiff, alleged to have been caused by the negligence of the defendant. The accident occurred April 30, 1902, at 6 o'clock in the afternoon, at or near the junction of Church and Genesee streets in the city of Buffalo, N. Y. The tracks of the defendant in this locality lie along the center of Church street-double tracks. These tracks were used for the Belt Line trains as well as others. The plaintiff at the time of the accident was eight years of age. She had been across the tracks from her home to the place where her father worked, to see him, and was on her way back home, when she was struck by a Belt Line train while attempting to cross the tracks. The only ground of negligence submitted to the jury was neglect of duty on the part of the flagman located at the Genesee street crossing of the defendant's tracks. The speed of the train and the failure to give signals were eliminated from the case. The court, in the charge, said:

"The defendant was not compelled to have a flagman at this crossing, but, when it does put a flagman upon a crossing of this kind, then the law imposes upon the defendant the duty of seeing that this flagman uses reasonable care and diligence with reference to his duty at this particular place. It is an active duty. He must be vigilant, so that he may prevent, if possible, injuries to persons who are pedestrians crossing the track. If the defendant stations a flagman, it becomes charged with the duty of warning pedestrians who are crossing or using the street. The particular negligence or omission of duty upon the part of the defendant is that this man was not there in the discharge of his duty as flagman at the time this injury occurred to this little girl. That is the neglect of duty upon the part of the defendant to which your attention is invited in this case."

The duty of the flagman was to look after the Genesee street crossing, and to warn persons crossing the railroad tracks along that street. He had no duty to perform as to Church street, along which the tracks laid, except so far as such street and tracks were within the limits of Genesee street. Under the charge, therefore, the plaintiff's right to recover was dependent upon the accident having occurred while the girl was attempting to cross the tracks along that street. While she had the legal right to cross Church street and the tracks at any point she saw fit, still the defendant owed her no duty, so far as the flagman was concerned, if she attempted to cross outside the limits of Genesee street. The verdict of the jury can therefore be upheld only upon a finding that the accident occurred while the girl was crossing the tracks along Genesee street. Such a finding was contrary to the evidence in the case, if not wholly without evidence to support it. The father testifies, it is true, that, the last he saw of the girl, she was standing near the cross-walk on Genesee street. He turned away then, and did not see what occurred afterwards, up to the time of the accident. All the other witnesses in the case on

both sides testify that the girl had left the cross-walk and was going across the pavement, directly towards her home, and was outside of Genesee street, when she was struck. The father says he stood north of Genesee street, in front of the place where he worked, and saw the girl go across Genesee street, straight towards home, and stop just north of the tracks while the Michigan Central train was going past towards the west, on the north track. The map shows this place where it is claimed the girl stood was in a direct line, substantially, between the place where the father stood and her home. When the Michigan Central train passed, the girl started to cross the tracks; and, having approached and crossed the north track, and crossed the space between the two tracks, she was struck as she stepped upon the south track. When she approached the tracks and crossed over, she evidently went directly towards home; and, if she did, the map shows she must have been some distance outside the boundaries of Genesee street. If she continued along the crosswalk on Genesee street, she would have been going in a direction away from, and not towards, her home. There is no evidence in the case tending to show that she continued in Genesee street until she was struck. The only inference permissible, upon plaintiff's theory, is that she started directly towards home, while the evidence in the case very strongly tends to show that the place where she stood while the Michigan Central train was passing was a considerable distance south of Genesee street, directly opposite her home. Under these circumstances, it cannot be said that the neglect of any duty by the defendant as to a flagman was the cause of the plaintiff's injuries, unless it be claimed that the duty of the flagman to warn foot passengers extended to persons crossing Church street outside the limits of Genesee street, and we cannot assent to such a proposition. We conclude, therefore, that the finding by the jury that the plaintiff's injuries were caused by the negligence of the defendant was unsupported by the evidence in the case, under the charge of the court. The verdict of the jury must have been based upon a finding that the girl was free from contributory negligence. The case was submitted to the jury upon the theory that she was of such age and intelligence that her own performance of duty, and not that of her parents, was to be considered as bearing upon the question of contributory negligence. This being so, the evidence fails to show that the care and caution required by law were exercised by the girl. It was daylight. There was no obstruction to her view, except the passing Michigan Central train. When the rear of that train passed by, she had a continually enlarging view of the Belt Line train approaching her. There is no proof whatever that she looked towards the east after the first train passed by before she attempted to cross. There was some evidence that she looked only to the west. Certainly, if she did look to the east after the Michigan Central train passed, she must have seen the Belt Line train coming. It was so close to her before she came to the south track that she had hardly stepped upon that track at all when she was struck. It was right upon her. If she did not see it, she was negligent. If she did see it, and attempted to pass over in front of it, she was equally negligent.

84 N.Y.S.-42