(dissenting). I do not agree that the charge of the circuit judge was open to the criticism expressed upon it by my brethren. It is not claimed he did not lay down the law correctly. It is claimed that he did not call the attention of the jury to the age of deceased as one of the elements in computing care or negligence. There are, no doubt, cases where peculiar knowledge is an element to be considered aside from ordinary sense and ordinary experience, and where the lack *128of such knowledge is more likely to exist in minors or youths than in persons of experience. But the particular risk in this case was one which would be as palpable to a boy of 15 as to a man. A much younger boy would comprehend the danger of slowly crossing a railroad when a train is approaching, or likely to approach. And as the jury, who are to judge of negligence by their own good sense, knew the age of the boy, as well as all the surroundings, I do not think, in the absence of any request on the subject, that the court could be hold in error for not refining on the subject further. The plaintiff was not a child or a minor, but a person suing, as all ordinary litigants sue, by an attorney of his choice, presumed to look after his interests. There was no more reason in this than there would be in any other case for the court to suppose a plain question of human experience would not be dealt with by the jury in accordance with it, or to assume that plaintiffs counsel could not look after his affairs. No complaint or exception was taken at the time, and no indication given that further instructions wore desired. I do not think that the statute which allows exceptions to the charge to be made after verdict should be so liberally construed as to make a perfectly correct charge erroneous because not further qualified on a matter which the jury must necessarily take into the account if proper to do so. I think there is no error in the record.
Morse, J., did not sit.