There was evidence that the plaintiff was driving at a moderate trot, and that the defendant’s car was going about as fast as a man ordinarily walks; that the car was moved by gravity only, and could be stopped by the brake in going a distance of five feet, according to the evidence for the *547defendant, and of ten to fifteen feet, according to the evidence for the plaintiff; that the plaintiff’s horse and carriage had crossed the track in front of the approaching car so far that the hind wheel was struck by the car, in such a manner that the carriage was not prevented from going along twenty or twenty-five feet in the road before the plaintiff was thrown out. The jury may well have found that the speed of the car was not slackened. The brakeman upon the car testified that he saw the plaintiff’s horse as soon as it appeared upon the track, and that the car was then sixty feet from the crossing; that he turned the brake to slacken the speed of the car, and that the car at no time was within twenty-five feet of the plaintiff’s carriage. Several witnesses testified that they saw the car at the crossing, and before it reached it, but no one testified that there was any diminution in its speed; one said that he saw the brakeman, and did not notice that he did anything. The jury may well have found that the speed of the car was not checked, and that, if the brake had been applied when the plaintiff's horse first went upon the track in sight of any person upon the car, the collision would have been prevented; and that, whether the collision was without the knowledge of the brakeman, or whether he falsified in his testimony in regard to it, it was caused by his negligence.
The plaintiff, according to the evidence, was so injured that she had no recollection of anything connected with the accident, and could not give testimony as to her care at the time. It was in evidence that she was accustomed almost daily to drive over this crossing. Several witnesses who saw her before she reached the crossing testified to the manner in which she was driving. Four witnesses testified that they saw the plaintiff drive over the crossing. They described her manner of driving as fully as the parties asked them, to, and it was for the jury to say whether she was driving in an ordinary way and with ordinary care, unless some fact appeared which showed, as matter of law, that she was negligent. Unless there was some such fact, the question was plainly for the jury.
Three of these witnesses testified that, when the plaintiff drove over the crossing, the car was twenty-five or thirty feet from her, and their testimony alone would justify no inference but that she was in the exercise of ordinary care. It is true that the jury *548found that these witnesses were wrong as to the position of the car, but they were called by the defendant, and they did not testify to anything in the plaintiff inconsistent with ordinary care. The other witness, the only one of the four called by the plaintiff, also testified to a fact which the jury found to be true, and which the defendant claims was in law negligence, and took the question of due care from, the jury, that the car struck the hind wheel of the plaintiff’s carriage. However strong evidence of negligence in the plaintiff this may have been, it clearly was not conclusive. Even in the case of a steam railway, the fact of a collision at a crossing between the engine and a traveller has never been deemed conclusive evidence that the traveller was wanting in due care. See Tyler v. New York & New England Railroad, 137 Mass. 238. There was evidence that it was unusual for cars to pass at that hour, and that the plaintiff had no reason to expect one; there was evidence that the plaintiff was looking in the direction from which the car was coming. There was no evidence that the car could be seen by her until she herself came upon the track, while there was evidence that her horse could be seen from the car before she or her carriage reached the track; and if she had seen the car, and attempted, of choice, to pass before it, it would be a question for the jury whether the act was negligent. The car was moving slowly, and was easily controlled, in these respects resembling an ordinary carriage more than a locomotive engine. The plaintiff had a right to expect that it would do something towards avoiding a collision, and, while that would not justify the plaintiff in putting herself in a dangerous position, it might be an element in determining whether a certain position would be dangerous, just as the fact that a horse is under its driver’s control is an element in ■ determining whether it is dangerous to pass in front of it. A driver who at a crossing of streets sees that he apparently can go safely before a horse and carriage approaching on a cross street is not, as matter of law, obliged to stop and wait for the other to pass, unless he is certain that he has made no mistake in his estimate of speed and distance; he may have a right to pass in front, and to assume that, if necessary, the speed of the other will be checked. So, in this case, the fact that the speed of the car could be checked, if there should prove to be danger that it *549would run into the plaintiff’s carriage, was a fact proper to be considered by the jury in determining whether the plaintiff was negligent in making a slight miscalculation, which could be remedied by proper management of the car.
We think that the question whether the plaintiff was in the exercise of due care was for the jury, and that the rulings excepted to were correct. Exceptions overruled.