While the evidence regarding the plaintiff’s carefulness in approaching and going upon the crossing where the train struck her is not very satisfactory, I am inclined to think it sufficient to make the question of her contributory riegligence one of fact.
The statement of her son that the plaintiff before the accident was in good health, and her eyesight fine, should be taken in connection with the fact that she was seventy-six or seventy-eight years old, and unable on the trial, as she testified, to remember anything of the accident.
By the testimony of others it appears that the train approached without ringing the bell or other signal; it was after dark, but there was no headlight; she looked twice in the direction from which the train came before going upon the track; once, when she was‘near the curb of the street across which the train came, and again between the curb and the track.
The inference is permissible that the train was not then in sight, either because it had not come in view around the curve or that she was .unable to see it because there was no headlight.
She then started diagonally across the street northerly and was struck at the northerly rail of the track upon which the train came. She was walking, but there is no evidence as to the speed of the train. Counsel for the defendant states in his brief that the presumption is that the defendant was obeying the city ordinance and not running faster than six miles an hour.
Whether the train was running fast or slow, there can be no doubt of the negligence of the defendant in approaching this crossing after dark without light or warning. These circumstances may also be taken into account in determining the question as to whether the plaintiff herself was careless. While of course a person in approaching a railroad crossing must look and listen before going upon the track, and do so intelligently and with reasonable care, yet I think the circumstances may be such that he may to some extent at least, rely upon the fact that otdinarily trains do not *832approach a crossing without warning and that engines are not usually run after dárk without a headlight. '
I think we must assume that the plaintiff is truthful in saying that she is unable to recollect anything of the accident. Her statement is not so inherently improbable that it can be disregarded upon a motion, for a nonsuit. Whether that inability arises from the accident or otherwise, I can see no difference in principle between such a case and a death case or one where a person by •reason of immature years,, .lack of intelligence or other infirmity, is unable to give an account of the' accident.
I think the case .should have been submitted to the jury.
Judgment affirmed, with costs. ■