Mary L. Haycroft, Respondent, v. The Lake Shore and Michigan Southern Railway Company, Appellant

Mary L. Haycroft, Respondent, v. The Lake Shore and Michigan Southern Railway Company, Appellant. (Argued February 8, 1876; decided February 15, 1876.) This was an action to recover damages for injuries sustained by plaintiff in consequence of being struck by an engine of defendant at a street-crossing. (Reported below, 2 Hun, 489.). Plaintiff, a girl sixteen years old, was passing along a street in the city of Buffalo, going south, across defendant’s tracks (five in number). She had crossed two of these tracks. She looked both ways, and saw a train approaching from the east, on the fifth track. She stopped for this train to pass, standing between the second and third tracks, within about a foot of the third. She had been standing thus a short time, and, about as the train she was watching passed, she was struck and injured by the tender of a locomotive backing up from the west, on the third track, which gave no warning, by ringing a bell or sounding a whistle, of its approach. The plaintiff was nonsuited at the Circuit, on the ground of contributory negligence. Held, error; that the question was one of fact for the jury. A. P. Laning for the appellant. C. D. Murray for the respondent. [MAJORITY — Miller, J.,] Miller, J., reads for affirmance of order and for judgment absolute against defendant on stipulation. All concur; Andrews, J., not sitting. Order affirmed and judgment accordingly