As the plaintiff's intestate was but nine years old, it cannot be said as a matter of law that she was guilty of contributory negligence, even if she saw the train when she started to run over the crossing. Warren v. Railway,70 N.H. 352; Bisaillon v. Blood, 64 N.H. 565; Napurana v. Young, (N. J.) 65 Atl. Rep. 1052; McLarty v. Railway, 127 Ga. 161.
It will not be necessary to consider whether she was rightfully or wrongfully on the crossing, for if she was wrongfully there that would not prevent the plaintiff from recovering, if "at the time of the accident she was in the exercise of ordinary care, and they knew of her presence in a dangerous situation, or failed to exercise due care to discover her presence in such a situation when circumstances existed which would put a person of average prudence upon inquiry" (Brown v. Railroad, 73 N.H. 568,573); and it could be found from the fact that small children were in the habit of playing on the crossing that such circumstances existed. Mitchell v. Railroad, 68 N.H. 96. So the question whether there was any evidence from which it could be found the defendants were negligent resolves itself into the question whether or not it can be said as a matter of law that the ordinary man is accustomed to run a train at a speed of fifty miles an hour, over a grade crossing on which he knows small children may be playing, without doing anything to determine whether there are any children on it until he is so close to it that he can do nothing to prevent an accident; for it could be found that that was what the defendants did, on the view which they concede may be taken of the evidence. According to that view, the train was moving seven times as fast as the little girl, so she came into the engineer's field of vision when the engine was more than 300 feet from
the crossing, namely, seven times forty-five feet, the distance from the southwest corner of the factory to the point where she was killed. If he had seen her at that time and put on the brakes, or if he had put them on when the engine was fifty or even a hundred feet nearer the crossing, it could be found that the accident would not have happened. Consequently it could be found that the defendants were negligent, and that their negligence was the cause of the accident.
Exception overruled.
All concurred.