#### Moses Swift, Resp’t, *v.*The Staten Island Rapid Transit Railroad Co., App’lt.

*(Supreme Court, General Term, Second Department,*

*Filed May 13, 1889.)*

1. Negligence—Crossing railroad—Reasonable care.

Tlie action was for loss of services based upon injuries inflicted upon ■plaintiff’s child, fifteen years of age, while attempting to cross defendants’ track, through the negligence of defendants in operating their railroad. *Meld,*that whether the engineer, after the discovery of the peril, used reasonable diligence to avert it was a question properly submitted to the; jury, and their verdict must be controlling.

2. Same—Youth on person crossing.

*Meld,*that the youth of the person on the track, if it could be discerned by the engineer, might well affect his duty.

This action was tried in Brooklyn before Mr. Justice Dykman and a jury. After the testimony on both sides was closed, the usual motion to dismiss was made and denied. The court sent the case to the jury upon a single question of fact, and the jury found in favor of the plaintiff. The appellant insists that the complaint should have been dismissed. The appellant appeals from the judgment and from the order denying its motion fora new trial, upon the grounds stated in section 999 of the Code.

The plaintiff sues for loss of service. The plaintiff’s child, a young woman fifteen years of age, was severely injured by one of the defendants’ locomotives near the New Brighton station, on the 4th of July, 1887, at about half-past nine o’clock in the forenoon. It was a bright, clear day. The line of vision is unobstructed between the place where the girl was struck and a point on the defendant’s east bound track, distant 835 feet westerly therefrom. The girl was struck by an east bound train at a point about midway between Jersey street and the west end of the New Brighton station platform. The distance between the centre line of Jersey street and the east end of said platform is about 375 feet, and the point where the girl was struck is about 187i- feet from each of these places.

The complaint alleged that the girl was lawfully and rightfully crossing the railroad tracks, and that while she was waiting for a train of cars to pass by, which was leaving the New Brighton station going westward, the defendant carelessly and negligently caused one of the locomotives moving eastward to approach the place where the girl was standing at a great and reckless rate of speed, and so carelessly and negligently managed the same as to strike and injure the girl. The complaint also alleged that the girl was free from negligence.

The answer denied that the defendant was negligent, *360and alleged that the accident was caused by the girl’s negligence.

• *McFarland, Boardman & Platt,*for app’lt; *James C. Foley,*for resp’t.

Pratt, J.

J.—Whether the engineer, after the discovery of the peril, used reasonable diligence to avert it, was a question properly submitted to the jury, and their verdict must be controlling. The custom of the occupants of the houses abutting upon the track to cross at will was known to defendants, and was an element in the case that should have suggested a high degree of care which the jury may have thought was not exercised by defendants.

The youth of the person on the track, if it could be discerned by the engineer, might well affect his duty. All these considerations were presented to the jury, and we cannot say their verdict was erroneous.

The charge of the court was- as favorable to defendants as the facts warranted, and no reason is shown to interfere with the judgment, which must be affirmed, with costs.

Barnard, P. J., concurs; Dykman, J., not sitting.