(dissenting):
I am unable to agree with the conclusions reached by a majority of my associates in this case for the following reasons :
First. The trial justice by his charge and refusals to charge permitted the jury to find a verdict for plaintiff, -although the latter at the time of the accident was several feet out of the path actually used by travelers and down the embankment towards defendant’s works. A recovery has been allowed upon the theory of negligence. There was ' nothing defective about defendant’s exhaust pipe. It can only be said that it was bound to use reasonable precaution not to injure those who might properly and lawfully come within reach of the escaping steam. Assuming that the railroad company had established a license in behalf of those who desired to *604travel through its grounds, I do not think that the evidence discloses that by this license people had been accustomed to go where some of the evidence showed this boy was when injured — several feet down the bank. I do not think the evidence discloses such a prior usage of the embankment where plaintiff might have been under the evidence, as called upon the defendant to reasonably anticipate that he might he there, and, therefore, to guard against injuring him by the steam in question.
Second. I think the medical evidence which defendant’s counsel moved to strike out at folios 121, etc., where the doctor testified that certain results “ may ” follow in the future, was incompetent. I do not think that the doctor’s answer came within those rules of reasonable certainty which are applicable to that class of. evidence. The question was put to him in proper enough form, and, therefore, .no foundation laid for an objection to it. The error only appeared when the doctor gave his evidence, and the only way to get rid of it was by a motion to strike out, which the defendant’s counsel promptly made.
Judgment and order affirmed, with costs.