I am of opinion that the learned trial justice properly disposed of the defendant’s motion for a nonsuit. The evidence was insufficient to authorize the submission to the jury of the question of the defendant’s negligence or the absence of contributory negligence on the part of the plaintiff’s intestate.
Before considering the evidence of the defendant’s negligence we should determine whether any offered by the plaintiff on that question was erroneously excluded, and if so, should give to it the effect it should have had if it had been admitted. The place where the deceased attempted to cross the tracks of the defendant’s road was not a regular crossing, and the plaintiff’s counsel sought to show that people living on the westerly side of the tracks and having occasion to cross at Elm street had been accustomed, when a freight train was obstructing Elm street, to cross the tracks at the end of the train. I think such evidence was proper as bearing on the question of the degree of care which should be exercised by the defendant knowing and acquiescing in such custom. The questions in the foregoing statement of facts were evidently asked with a purpose of showing such custom. They were proper in form, and I think the witness should have been permitted to answer them, except the one ‘c For some years before the accident were the public in coming down, that is, coming east on Elm street, accustomed to going around the end of a freight train that blocked the crossing % ” which may be objectionable. We should, therefore, regard the custom sought to be shown as proven.
*56A ground of negligence alleged in the complaint, and of which evidence was given on the trial, was that the defendant’s freight train,, at the time of the accident, had obstructed Elm street for a longer period than five consecutive minutes, in violation of section 421 of the Penal Code. Whether the violation of this section was an act of negligence, causing in part the injury to the plaintiff’s intestate, need not be considered for the reason that the evidence is insufficient to warrant a finding that there was an obstruction for more than five minutes. Two witnesses testified as to the time the freight train wras blocking Elm street. One of them says that when she went to the front door the freight train was standing on the west track, and that she is quite sure it was standing there when the plaintiff’s daughter was run over, which, in her judgment, was five minutes or more; but, upon her cross-examination, she says that she did not see the plaintiff’s daughter that day when she attempted to cross the track; did not see her until after the accident, and did not look at her watch or clock to tell how long the train had been there. It was the merest guess; an opinion without any basis. The other witness, who is the only person who witnessed the accident, on liis direct examination says: “ It stood there blocking Elm street all- the time that I was there at theodepot; my best recollection of it is, a little over five minutes; I couldn’t tell just exactly.” On his cross-examination he says : “ It was there when the passenger train whistled; stood still over the crossing; that was the first time it stood still, when the whistle bio wed on the passenger train ; then it stood still from the time the passenger train whistled until the passenger train came in ; I don’t know whether that was five minutes, I didn’t take my watch.” This witness had testified that the whistle of the passenger train blew at the whistling post half a mile distant, and the train, when it reached him, was running at the rate of ten miles an hour, so that if the freight train stopped at the' Elm street crossing when the whistle blew, it could not have been there more than three minutes at the time of the accident. The attention of the witness evidently having been called to this fact, lie said: “ I don’t think at that rate of speed it would take that train five minutes to come from the whistling post down there, that passenger train. That t/rai/n could not have been standing there on that crossing five minutes before that train came in.”
*57There was a failure of proof by the plaintiff that the passenger train was not giving proper precautionary signals of its approach. There was but one witness on this question. To him the following question was put: “You may state whether the passenger engine bell was ringing at that time.” He answered, “Ho, sir, I did not hear it.” On his cross-examination he said, “ I didn’t hear any bell; I wasn’t listening ; I wasn’t anticipating anything ; I wasn’t listening for a bell.” This mere negative evidence is without any value.
The remaining fact is the speed of the train which, although the accuracy of the inexperienced witness may be doubted, we must assume to have been ten miles an hour. Our attention has been called to a class of cases holding that the running of a train at a high rate of speed through a crowded or thickly populated locality in a city or village is evidence of negligence to be submitted to a jury. But this case is not within that rule. Here the train was running at the low rate of ten miles an hour, and in the absence of evidence that timely warning of its approach was not given, the jury would not have been authorized in finding that that rate of speed, under the circumstances, was negligence.
I am also of the opinion that the complaint was property dismissed for want of evidence that the plaintiff’s intestate was free from contributory negligence. She was beyond question sui juris, and although she might not be held to the same degree of care as an adult, yet she was bound to exercise such care and caution as might be reasonably expected of a person of lier years, intelligence and experience, and the burden was upon the plaintiff to show the exercise of such care. (Reynolds v. N. Y. C. & H. R. R. R. Co., 58 N. Y. 250 ; Tucker v. N. Y. C. & H. R. R. R. Co., 124 id. 308 ; Thompson v. B. R. Co., 145 id. 196.)
The evidence fails to'show the exercise of any care by the deceased for her protection, and is convincing of her negligence. She was a bright, intelligent girl over twelve years of age; had for seven or eight years been accustomed to crossing the tracks of the defendant’s road in going to and returning from school and had frequently crossed in doing errands for her grandmother. The freight train on the siding obstructing Elm street was not unusual, and the passenger train was one that had for several years been coming in *58there at that time. With these facts and with the situation generally she must have been familiar. She was on her return to school, which opened about one-fifteen p. m., and finding Elm street blocked she ran northerly along the westerly side of defendant’s freight train standing on the siding, then turned and running crossed the track in front of the engine of that train, with her head down, over the intervening space of four feet and upon the passenger track, in the middle of which she was struck by the locomotive of the passenger train. It was a bright, clear day, and it is undisputed that on the easterly rail of the siding she could have seen the approaching passenger train at a distance of half a mile. There is not the slightest evidence of the exercise of any degree of care. If she looked at all for the approaching train, which is quite doubtful, it was not until she was in the center of the passenger track when the train was upon her and it was too late. In her commendable desire to arrive at school in time she became unmindful of the danger which she should have apprehended and suffered the lamentable consequences of her thoughtlessness.
The judgment should be affirmed, with costs.
All concurred, Parker, P. J., and Kellogg, J., in the result.
Judgment affirmed, with costs.