(after stating the facts as above). [1] The absence of briefs makes it exceedingly difficult to deal with the questions argued. The testimony to which objection is made by the plaintiff in error found at folios 135 to 141 inclusive and folios 348 to 359 would seem to be immaterial but in view of what took place at the trial it is clear that its admission was not prejudicial to the plaintiff. It is as follows:

“Q. Is the oldest boy, the 19-year old one here? A. Yes, sir. Q. What is he doing? A. He is working in some factory. Q. What is the age of the next child? A. 17 years. Q. Is it a boy? A. A daughter 15 years old. Q. Is she working? A. She just commenced. Q. Then the rest of the children are not working, are they? A. Pour are going to school.”

The testimony at folio 348 is as follows:

“Q. Have you ever been back to Pennsylvania since you came to New York the first time? A. I was there on a visit. * * * Q. When was it you went back to Pennsylvania on this visit? A. I visited my brother and sisters. Q. When did you go back to Pennsylvania then? A. It was ovdr a year ago. * * * In thd next March it will be two years. * * * It was the first of March. I stayed there three days, and then I come' back.”

If there was anything in this testimony which injuriously affected the plaintiff’s case, we are unable to perceive it. That it was irrelevant and immaterial may well be admitted, but we do not see how it was in the least degree prejudicial.

[2] The summing up by the defendant’s counsel is printed in full in the record. Why this was done does not appear. No reversible error *301can be predicated of what counsel said to the jury as no exception was taken relating exclusively to the language of this address. The question of residence was withdrawn from the jury by the counsel for the defendant. Upon the entire evidence we are satisfied that the questions of' negligence were for the jury to pass upon and that a result has been reached which is justified by the proof.

The judgment is affirmed with costs.

On Petition for Rehearing.

[3] The only ground stated in the petition for a rehearing about which we need to say anything is the complaint that we did not expressly rule upon the petitioner’s exception to Judge Veeder’s refusal to charge a request. It was to the effect that the jury might assume that the testimony of Lutcavage and Rowan, who were present in court, would have been unfavorable to the defendant because it did not put them on the stand. Rowan was assistant foreman. Lutcavage was a laborer under decedent’s orders. Anything either of them knew would have been in the nature of things cumulative. Judge Veeder told the jury that counsel for the plaintiff and defendant had fully discussed the question as to the defendant’s failure to put these men on the stand from their respective points of view and the jury might draw such inferences as they saw fit. This was as favorable an answer as the plaintiff was entitled to under the circumstances.

The petition is denied.