
    Fourth Department,
    October, 1928.
    Carl Lyle Appleby, an Infant, by Charles R. Appleby, His Guardian ad Litem, Respondent, v. Buffalo, Rochester and Pittsburgh Railway Company, Appellant.
   Per Curiam.

To a person lawfully using the private crossing and lawfully upon defendant’s tracks at that point, defendant owed the duty of using reasonable care to avoid injury. The allegations of the complaint which defendant asks to have stricken out as redundant and irrelevant seem to us to be in the nature of evidential statements. We are, therefore, disposed to think that they were improperly in the complaint and that the motion to strike out should have been granted. In saying that, however, we are not to be taken as ruling on a question of evidence in advance of the trial. On the question of reasonable care, the fact that no warning was given on approaching the public crossing or at the whistling post might be circumstances to be considered in connection with all other evidence in the case. Conceivably, also, the same facts might be admissible in evidence as bearing upon plaintiff’s contributory negligence. Those are questions to be decided on the trial. The order is reversed, with ten dollars costs and disbursements, and the motion granted, with ten dollars costs. All concur. Present-— Hubbs, P. J., Clark, Crouch, Taylor and Sawyer, JJ. Order reversed, with ten dollars costs and disbursements, and motion granted, with ten dollars costs.  