
    Mary F. Crone, an Infant, Resp’t, v. The New York Central & Hudson River Railroad Co., App’lt.
    
      (Superior Court of Buffalo, General Term,
    
    
      Filed October 26, 1892.)
    
    Negligence—Contributory.
    The evidence in the case showed that plaintiff was prevented from crossing defendant’s tracks promptly hy a moving train on track 4; that immediately on its movement off the street she and her companions started to -cross to a place of safety, when they were struck on track 2 hy a hacking ■engine which they did not observe until too late to escape. Meld, that it could not be held as matter of law that plaintiff was guilty of contributory negligence in lingering or loitering at the place of the accident.
    Appeal from judgment in favor of plaintiff, entered on verdict, and from order denying motion for a new trial.
    
      Howard & Clark, for resp’t; James F. Gluck, for app’lt.
   White, J.

That the jury was justified in finding the defendant guilty of negligence in operating its engine which caused the injury complained of, cannot be seriously questioned. The appellant contends that the plaintiff was guilty of contributory negligence on the ground that she lingered or loitered at the point where the accident happened, when she ought to have passed on to a place of safety.

As an abstract proposition of law it is probably true that if a person approaches several railroad tracks, and takes an observation and sees that-the crossing of those tracks is safe, he ought not in the exercise of care to stop and linger upon the tracks, but it is his duty to advance and pass them as rapidly as is consistent with due care, and if he does stop and loiter until the time when it is-unsafe, instead of going to a place of safety, and by reason thereof injury results, he is guilty of contributory negligence. But I am unable to see what application can be made of such a principle to the case before us, because the plaintiff was prevented from crossing the several tracks promptly to a place of safety by a moving train of cars on one of the defendant’s tracks; nor is there any evidence that she lingered or loitered on the tracks. On the contrary, such evidence as there is tends to prove that immediately upon the movement off the street of the train on track No. 4, south of the flag shanty, the plaintiff and her companions started to cross to a place of safety, when they were struck on track No. 2 by an engine backing across the street, unobserved by them until they were on this track No. 2, when it was too late to escape.

Í think the case was properly submitted to the jury, and that the ruling of the trial judge on the question of contributory neg ligence by the plaintiff w<as right, and therefore the order an<£ judgment appealed from should be affirmed,1 with costs.

Titus, Ch. J., and Hatch, J., concur.  