*45Dissenting Opinion.
Bonnee, Associate Justice.I feel constrained to dissent from the decision of the majority of the court in this case.
It is shown that the mother of the child voluntarily resided at the place at which the accident happened, and that it was within a few feet of the track of the road; that she knew of the approaching train, and recollected at the time that the child might be injured. Under these circumstances, great care was due on the part of the mother. But without expressing any opinion whether the contributory negligence of the mother should be imputed to a child of such tender years as the plaintiff, I however think that the judgment should be reversed on other grounds.
There is a great preponderance of evidence against the verdict. It cannot be questioned but that the plaintiff ivas wrongfully on the track, a fact which the employees on the train were not bound to anticipate would happen, further than to use ordinary care to discover possible danger. The train was running at a reasonable rate of speed. The only eye-witnesses to the fact, the engineer and fireman, swore positively that they Avere at their post of duty and on the lookout, and that as soon as they saw the danger they used extraordinary efforts to avert it and save the child, even at the risk of their own lives. That nothing Avas left undone which they could have done. The circumstantial evidence does not necessarily conflict with their positive testimony, Avhich, under the circumstances, should be entitled to very great weight. The evidence shows that the child’s tracks were obliterated at the place where the engine came in contact with her. In cases Avhere there is a great preponderance of evidence against the verdict, I do not understand the true rule to be that the verdict should be upheld because, perchance, there might be some evidence upon which the jury might have found; but that the testimony to support the verdict should be so reasonably certain and sufficient as to shoiv that the jury did not err.
I do not think that the verdict and judgment in this case were warranted by the testimony. I am further of opinion, that, under the circumstances, the verdict was excessive.