Granting the propriety of the submission to the jury of the question of the contributory negligence of the plaintiff, there seems to he no evidence of negligence on the part of the driver of the vehicle of the defendant. That the driver was the distance of one house from the spot where the child of between three and four years of age stood in the street, when he was called to stop, and that the street was lighted on that Hovember evening, seven thirty of the thirtieth, may hardly, without more, be said to be sufficient to go to the jury on the question of the driver’s negligence. The speed at which he was driving, or the weight of the vehicle was not shown, or that he heard or could have heard the call to stop; and the accident was not at a cross walk where he was bound to be vigilant. The dismissal for lack of evidence would, therefore, seem to have been proper.
Judgment reversed and new trial ordered, with costs to appellant to abide event.