delivered the opinion of the court, October 10th 1876.

The charge of the judge in this case is. so generally fair and accurate we feel some difficulty in coming to a conclusion which results in a reversal. But by inadvertence, or possibly a slight confusion, he seems to have fallen into an error, which excluded the defence from its only probable ground of success. We concur in the view of the judge, that the foot of the plaintiff must have been caught in the space left for the 'flange of the car-wheels, between the rail and the inner plank of the crossing; and therefore that the injury arose from no defect in the construction of the crossing. The plaintiff’s case evidently depended on the second branch of alleged negligence, to wit: in running the train at an immoderate rate of speed in disregard of the place and the circumstances of the occurrence. The judge rightly charged that negligence was a question for the jury, to be decided upon the circumstances in evidence. His error was a substantial denial of this principle in a subsequent part of the charge. The witnesses for the defendants testified that the speed of the train was not too rapid, but only at the rate of about five or six miles an hour; that the train was fully under control, the hands in their proper places; that the train could be stopped in a space less than its own length, and in fact was stopped before the engine, at the rear end of the train, had reached the crossing; that *140when the children were seen on the crossing the flagman on the front car hallooed to them, and they started to run off, the boy running straight across the track, and the girl obliquely; that, to every appearance, they knew their danger and were likely to avoid it, the boy escaping entirely, and the girl (the plaintiff) reaching the rail and apparently passing off. In a moment or two the flagman saw that the child was fast, and heard her hallooing, and gave the signal for stopping immediately to the engineer, who reversed his engine, and whistled down-brakes. At this time the front car ivas between one hundred and one hundred and twenty feet from the crossing. Mrs. Morgan, the mother of the child, hearing the cries of the child and of her neighbor, Mrs. Meinthal, ran a distance of sixty feet, and Mrs. Meinthal a distance of one hundred feet, to the child, and made three or four attempts to extricate the foot before the cars reached the crossing, and the mother then held her body out from the track while the wheel pushed the foot out, leaving the shoe in the crevice. The wheels were sliding under the influence of the brake, otherwise, if turning, all the evidence shows that the foot would have been cut off. These facts are also strong evidence of the slow speed of the train, Mrs. Meinthal having run nearly as far as the train had to go, when the signal for down-brakes was given. Under these circumstances,.the defendants contended that no duty lay upon those having charge of the train to come to a full stop until it was discovered that the little girl’s foot was caught, or for some reason she could not escape, as appearances had indicated she would; and then, that everything possible was done to avoid the injury. The weight of this argument was felt by the judge, who said: “To some extent, in defendant’s view of the facts, the reason for imposing upon those in charge of the train a different course of conduct than when an adult is on the track, seems to fail.” He had stated the duty as to an adult in these words: “ If the engineer saw the adult in time to stop his train, but the train being-in full view, and nothing to indicate to him a want of consciousness of its approach, he would not be bound to stop his train. Having the right to a clear track, he would be entitled to the presumption that the trespasser would remove from it in time to avoid the danger; or, if he thought the person did not notice the approaching train, it would be sufficient to whistle to attract his attention, without stopping.” But the judge, referring to the view above stated, added, “that, even if this be a correct view of the evidence as taken by the defendant, it does not follow necessarily that there was an absence of negligence on part of the defendant.” He then puts these questions: “Was not the failure of the child to get from danger owing to its want of care in avoiding the crevice between the plank and the rail ? Or was not its foot caught and held there, because of its physical incapacity to remove it?” Referring these questions to the jury, he then comes to the instruction, which it *141seems to us is faulty: “ If so (he says), if the child either had not the capacity to avoid the dangerous crevice, or if it had not the physical capacity to extricate it, after it was caught, then it comes back to the same question as in the case where the child had been run over without having attempted to escape.” That case was stated in this precedent instruction: “ Where a child is upon the track, they are bound to stop on seeing it, because they have no right to assume that the child knows its danger, or has the capacity to apprehend danger, or to flee from it as in cáse of an adult.” The case, as thus put by the judge, was therefore just as if those in charge of the train had not been misled by the attempt of the children to escape, and the actual escape of one of them. Its effect was wholly to exclude the defence, notwithstanding the jury was bound, under the evidence, to find that there was every reason to believe that the children would be off the crossing before the train would reach it, and that the girl’s escape was frustrated by a mere accident; and that everything possible had been done to avert the injury as soon as her true situation was discovered, and that in all else, speed, management and control of the train, there was no fault on the part of the company. The quotations given from the charge were taken from the case of Philadelphia & Reading Railroad Co. v. Spearen, 11 Wright 300. But that case states no inexorable rule, that a train must stop under all circumstances, when a child is seen upon the track; on the contrary, if its appearance there is so sudden and unexpected that the engineer is incapable of exercising the necessary measure of care to save it, the child is without remedy. In principle, this is not different from a case where a sudden change of circumstances causes an accident to a child, where immediately before there was no reason to believe an injury wofild ensue. The instruction of the learned judge cannot be sustained unless we hold that in no case and under no circumstances will a railroad company be excused in the rightful exercise of its right of passage on its own track, unless it stops its train whenever a child is seen upon the track. A principle so general would include even, the case of a child led by the hand by its adult nurse. The jury then would not determine the question of negligence, but the law would ’determine it for them. But clearly it is for the jury to say whether it is negligence not to stop, even in the case of a child; for the question depends on a proper view of all the facts. The case did not go to the jury on the question of reasonable speed, under the circumstances of time, place, person, &c., but under this instruction the jury was bound to find negligence in the company, because the train was not stopped before it reached the crossing.

Judgment reversed, and a venire facias de novo awarded.