The defendant’s railroad crosses Austin Street in Charlestown at grade, and very near it — one witness said at a distance from its tracks of not more than sixteen or seventeen feet — the tracks of the Boston and Maine Railroad cross the same street. The plaintiff’s intestate was struck by a locomotive engine at the crossing, and died soon after from the injury so received. The jury might well have found from the evidence that he and the driver with whom he was riding were both in the exercise of due care.
There was evidence that one approaching the crossing as the plaintiff’s intestate was cannot see a train coming on the defendant’s railroad until he gets very near the tracks, because a roundhouse a,nd tank cut off the view. The testimony was that the driver of the ice cart had no warning of the approaching train ' until he was on the tracks of the Boston and Maine Railroad, and within a few feet of the defendant’s tracks. He was ordered by the gateman of the Boston and Maine Railroad not to back his team, probably because of danger from the approach of a train on that road. The gates of the defendant’s road were shut down before him, and the defendant’s train was approaching so that he could not go on, and the tracks of the Boston and Maine Railroad were behind him with the gates closed, so that he could not go back, and he was obliged to stay there, shut in on both sides, with his horses’ heads only a few feet from a track on which a train was rapidly approaching. It is a matter of common knowledge that many horses which are reasonably safe and proper to be used will not stand quietly and let a train approach so near them as did the train to these two horses attached to the ice cart. Unless his horses were unusually fearless, a driver situated as this driver was would have good reason to expect an accident. There was evidence that the train was running at the rate off twenty miles an hour. If the driver had been warned of the coming train before he reached the tracks of the Boston and Maine Railroad, or if the warning had been given long *496enough before the arrival of the train to enable him to cross over if he was near the railroad, the accident might not have happened.
The gates were made of narrow strips of board, and were not of sufficient strength to be of service in stopping horses if they pushed against them. Ordinarily, the principal purpose of gates is effectually to warn travellers not to cross, but there may be places in which the gate should be a strong barrier that will help to keep horses off the tracks. If, in the proper management of the defendant’s business at this crossing, persons driving in the exercise of due care are likely to find themselves shut in between the defendant’s tracks and the tracks of the Boston and Maine Railroad when trains are passing, it is a question for the jury whether the defendant should not, for the protection of travellers, have a different kind of gate to keep frightened horses from pushing upon the tracks. The rate of speed at which trains should be permitted to approach the crossing, the length of time before the passage of a train that warning should be given to travellers on the street in view of the close proximity of tracks of other railroads, the kind of warning that should be given, and the kind of gates or barriers that should be used, all enter into the determination of the question how the defendant’s business at this place should be managed to prevent accidents of this kind when travellers are in the exercise of proper care.
We are of opinion that it was a question of fact for the jury, whether, in some of these particulars, the defendant did not fail to exercise such care as ought to have been exercised for the protection of persons using the highway at this very dangerous place. Titcomb v. Fitchburg Railroad, 12 Allen, 254. Tyrrell v. Eastern Railroad, 111 Mass. 546.
Exceptions sustained.