It cannot be said, as a matter of law, that the plaintiffs were negligent at any time prior to the moment when they first saw the train. No train was then due according to the schedule time, but the train was late. The plaintiff Robbins knew that for ten years there had been a flagman at the crossing, and that the flagman’s wife was accustomed to use the flag. She was there on the spot, and was seen by the plaintiffs, and she had no flag and made ho signal for them to stop. From this and the other testimony the jury might have found due care up -to that moment. Johanson v. Boston & Maine Railroad, 153 Mass. 57. Merrigan v. Boston & Albany Railroad, 154 Mass. 189. They were then within from thirty to fifty feet of the track, the train was coming, and the question was what to do. The plaintiff Robbins testified that he thought he had better get across; that he did not dare to stay where he was; that there was a banking .down each side of the road; and that it was a pretty close place. So he-whipped the horse, and they actually got across the track without being hit by the train. Then the horse broke. Instead of going on, perhaps he might have got out and held the horse, or perhaps he might have tried to turn round if there was room. The decision had to be made instantly, and it depended somewhat on the position of the ground and what it was possible to do. It seems to us that it cannot be said, as a matter of law, that the plaintiffs had failed to show that Robbins was in the exercise of due care. The plaintiffs were entitled to go to the jury upon this question.
It was conceded that there was evidence for the jury on the point of the defendant’s negligence.
Exceptions sustained.