(after stating tiie facts). Three assignments of error only are pressed upon the attention of this court;

I. It is contended that the trial court erred in admitting in evidence an ordinance of the city of Elmira relating to the speed of trains. Upon this branch of the case tiie court charged as follows:

“The question for you lo determine is whether or not, under all the circumstances of the ease, in view of the situation, there being no street crossings, it was proper to run at such speed [20 miles an hour]. In these circumstances, *462the ordinances of the city of Elmira were admitted in evidence, not as precluding you from answering the question one way or the other, hut for what they may he worth. Should you find that the train was running at an immoderate rate of speed, still, if the accident would have occurred the same if the train had run at a moderate speed, then the question of speed is immaterial.”

No objection was taken to tbis part of the charge, and it is a correct statement of the law, if the ordinance applies to trains running where this one was. Beisegel v. Kailroad Co., 14 Abb. Prac. (N. S.) 29. Plaintiff in error, however, contends that the ordinance in question does not apply to such trains. By chapter 535 of the Laws of New York of 1884, the common council of the city of El-mira was authorized to regulate, restrain, or prevent the unnecessary obstruction of streets by locomotives and other cars, and to regulate the speed of locomotives and other cars in said city. In pursuance of such authority, the common council duly passed the ordinance which it is conceded was in force in the city of Elmira at the time of the accident. It reads as follows:

“No railroad company or any person shall direct, cause, or suffer any engine, railroad car, or train of cars to be driven, drawn, run' or propelled upon any railway in said city at a greater rate of speed than fifteen miles per. hour in any case, nor at a greater speed than four miles xser hour unless a competent flagman shall be stationed at every Intersection of such railway with any street in said city, at which such a flagman shall be required to be stationed by the said common council at such times as shall be so required, under a penalty of fifty dollars for each offence.”

Plaintiff in error insists that this ordinance should be so construed by the court as to restrain its operation within narrower limits than its words import, on the theory that the literal meaning of its language would extend to cases which the common council never designed to include in it, and that it should be confined to situations where the question of speed could be of importance to travelers upon such of the streets of the city of Elmira as are intersected by railways at grade crossings. The difficulty with this contention is that the language of the ordinance is in no sense doubtful, obscure, or ambiguous, and, so far from indicating an intent on the part of the common council to restrict its operation as counsel suggests, it quite plainly indicates the converse. It contains a provision requiring a very low rate of speed unless certain intersections with streets are protected in the manner indicated, and also, irrespective of the fact that such intersections may be thus fully protected, expressly prohibits a greater rate of speed than 15 miles an hour “upon any railway in said city in any case.” To alter this ordinance in the way contended for would be legislation, not construction. The case mainly relied on by plaintiff in error (Green v. Canal Co., 38 Hun, 55) is not in point. There the court found sufficient evidence that the Binghamton ordinance was not intended to apply to trains making connections within a railroad yard, in the fact that by its terms it was restricted to engines and cars “while passing through said city.”

2. It is further assigned as error that the court refused to grant defendant’s motion to direct a verdict for the defendant on the *463ground that plaintiff was guilty of contributory negligence. We are entirely satisfied that, upon the proofs, it was a question properly to be decided by the jury whether or not the deceased was acting with reasonable prudence under all the circumstances.

3. It is further assigned as error that the court refused to charge that :

“There is no evidence in this case that deceased looked to ascertain whether any train was coming towards him on the west-bound track, and that is so even in case the defendant was guilty of any negligence in the care or control of tlie train.”

One of the witnesses testified:

“A bout a minute and half before the accident, I saw him looking down the west-bound track towards the depot, — the direction from which t;lie train came. The passenger train that struck him was not in sight at that time. He was looking in the direction from which the train came that struck him.”

There was, in our opinion, no error in the refusal to charge as requested. The judgment of the circuit court is affirmed.