p. 317Bertie Swift, through the alleged negligence of the defendant in operating its railroad. At the place of the accident a number of houses abutted on the defendant’s track, and the occupants of the houses were in the habit of fre-quently crossing the track for various purposes. The child, Bertie, was going from one of these houses across the track when she was struck by a pass-ing locomotive. Witnesses for the plaintiff testified that they saw her standing on the track when the locomotive was about 200 feet from her. The engineer testified that when at that distance from her he first saw her standing near the track, but that she did not get on the track until he was within 35- or 40 feet of her, when he first attempted to stop the train. She was about 15 years old. Judgment was given for plaintiff, and defendant appeals.
Argued before Barnard, P. J., and Pratt, J.MacFarland, Boardman c6 Platt, for appellant. James C. Foley, for re-spondent.
Whether the engineer, after the discovery of the peril, used reasonable diligence to avert it, was a question properly submitted to the-jury, and their verdict must be controlling. The custom of the occupants of the houses abutting upon the track to cross at will was known to defendant, and was an element in the case that should have suggested a high degree of care, which the jury may have thought was not exercised by defendant. The youth of the person on the track, if it could be discerned by the engineer, might well affect his duty. All these considerations were present to the jury, and we cannot say their verdict was erroneous. The charge of the court was as favorable to defendant as the facts warranted, and no reason is shown to interfere with the judgment, which must be affirmed, with costs.