(dissenting):
This was an action to recover damages for an injury caused to the plaintiff in May, 1896, at the Ontario street crossing in Lockport, N. Y., by being struck by a passenger train of the defendant. The plaintiff, a child of seven years and three months of age, on the morning of May 1, 1896, was walking on a sidewalk on Ontario street on her way to school. The defendant’s road passes through the city of Lockport and has two tracks. At the time that the *192plaintiff attempted to cross the track, the crossing on the east side of the street, the track nearest to her, was occupied by a passing freight train going west. The distance across the tracks measured along the sidewalk is fifty feet. A passenger train was passing at the rate of from fifteen to twenty-five miles per hour. An ordinance of the city of Lockport then in force limited the speed of trains through the city to eight miles per hour. The plaintiff was sworn as a witness and said : “ I was once hurt at the railroad there [the crossing], I remember it was a year ago last summer. I was going to school in the morning. I was hurt on Ontario street. I was going to the Sisters’ school down on Ontario street. On that morning I was going down the street on the north side of the track. When I got to the track I saw the freight train. It was half gone by. After it went by I started to go by, and then I started to run, and I was looking down towards the city. Before I started to cross the tracks I stopped to let the freight train go by. The freight train went up towards Niagara street out of the city. I last saw the engine way up by Niagara street crossing. When the last car passed I went across the track. Q. Well, did you go clear across ? A. No. Q. Tell us what happened then ? [Witness shakes her head.] A. I did not see the passenger train. I did not know there was any train coming on the other track. I cannot tell how I got hurt. I know a passenger train when I see it. There are windows in a passenger car and there are no windows in a freight car. When I went to cross the track I did not get clear across. I cannot tell what prevented me, what stopped me from going across. I cannot tell how I got hurt. Q. Where were you hurt ? A. Right there. [Witness indicating her hip.] Q. Any other place ? A. [Witness indicating her left cheek and under the left eye and head.] I do not know what hurt me on the hip. Mrs. Bronson picked me up. I was down on the ground. I do not remember where I was. I had been going to school three months, and had passed over every day before that and have seen trains go by. Q. What did you look down the track for before you went across ? You said you looked down the track. A. I thought if there were any more cars coming they would come from that way. Q. And then after you looked down, did you see any more cars coming % A. No, sir. Q. Then you went across ? A. Yes, sir. Q. Did you know there *193was any passenger car or train coming from the other way %■ A. No, sir.”
A Mrs. Hannah Bronson, who picked the little girl up, testified :• “ I observed this accident. I saw the child standing waiting for- the-freight train to pass, and as soon as it had passed she started to run across the tracks, and just about as she got to the second crossing, I think she noticed her danger, and she turned to run eastward down the track to get out of her danger, and the passenger train was so near to her that it knocked her over. When I first saw her she was standing waiting for the freight train to pass. The freight train was quite a long one, if I remember right. When the rear* end passed the crossing the rear end was quite a little distance west between Niagara street and Ontario street. * * * She went on the track, the freight train passed on. She was hurrying; she started on a run.”
At the close of the plaintiff’s evidence the court held that there was evidence in the case sufficient to go to the jury on the question of the defendant’s negligence, and that conclusion is supported by the evidence, but the plaintiff was nonsuited because it appeared to the court that she was guilty of contributory negligence. The plaintiff’s counsel excepted to the ruling, and that brings up the question as to whether there was any question to go to the jury arising from the evidence, and in determining that question we must take the most favorable view for the plaintiff of the evidence. I have given the extracts from the testimony of two witnesses to show that the little girl was confused, as a child at that age might well be, as to the approaching passenger train which was coming from the same direction in which the freight train was going. She supposed that if any other train was coming it would be from the same direction that the freight train had come from. It did not seem to have occurred to her to look the other way. There was a clear question in the case as to whether the child was sui juris ; whether she was capable of contributory negligence ; her attorney had the right to go to the jury upon that question. When a court assumes to non-suit a plaintiff, the plaintiff is deprived of a jury trial of the issues that the evidence present. The defendant, was plainly negligent. *194Had the passenger train been going but eight miles an hour, the child would have passed the crossing in safety and got beyond danger before the passenger train reached the crossing. It would have been better had the plaintiff’s attorney called the attention of the court specifically to the question as to whether the child was sui juris and asked to have gone to the jury upon that question, but that omission did not deprive the plaintiff of the rights which she has from her exception to the nonsuit. The question, also, as to whether the parents of the child exercised proper care in permitting her to go to school alone, was in the case. The parents of the child testified in regard to her attending school alone, and as to the care they exercised. The trial court treated this child as an adult substantially, and applied the same rule to her as to contributory negligence that, should govern the case of a person of full understanding. The child did not have the benefit of the question before a jury as to whether she was sui juris.
It is our duty to grant a new trial that that vital issue to the plaintiff may be determined by a jury.
The judgment should be reversed and a new trial granted, with costs to abide the event.
Judgment affirmed, with costs.
Sic.