dissenting:
The only negligence on which the defendants are held liable is that of the flagman. The whole evidence however, shows that he was endeavoring to do his duty, and there is no evidence at all to show that his judgment was so bad or exercised so perfunctorily as to amount to negligence. No specific act of negligence is charged, and the jury were permitted to find it from the mere happening of the accident and their inference therefrom that the flagman might have done something' more than he did to prevent it. What that something was nowhere appears in the evidence. The witnesses say that when the flagman called the child back from her place of danger she came back and “stood alongside of him.” He was in a place of safety and had a right to assumq that she was. Just why she was not, whether both he and she made a mistake in the few inches of her position that brought her within reach of the overhang of the engine, or whether she moved slightly after coming to his side, nowhere appears, but no negligence can be imputed to *477him unless he was bound to devote such attention to the child as to insure her against injury. There is no such legal requirement. His principal duty was to watch the train and the crossing which it was approaching. In the entire absence of any specific act, either by commission or omission, the jury should not have been allowed to find negligence on the general idea that there was something, not testified to, which he might have done to prevent the injury, or practically that the defendants were insurers against accident.
Gbeen, J., joins in this dissent.