dissenting.
This action is brought to recover for the killing of a boy not quite IB years of age. The majority opinion holds *197“that there are two controlling questions upon which the decision of the case must depend.” The first is whether 'the deceased was guilty of contributory negligence, and the second apparently is the “last clear chance” doctrine. The conclusion is drawn that “the evidence shows that they (referring to Andy Johnson, a man about 50 years old, and the deceased) recklessly drove upon the track without any precaution, because, under the circumstances and conditions shown- to exist at the time, if they had looked and listened they must have observed the approaching train. They were therefore guilty of contributory negligence which was the direct cause of the accident.”
I cannot take the view that, as a matter of law, the deceased was shown to be guilty of contributory negligence. The train was running at a speed of 45 to 50 miles an hour. Defendants admit in their brief: “The wagon was struck by a north-bound passenger train running at a speed of about 55 miles an hour.” It is said in the opinion “that there was no building or other obstruction which would interfere with a free view of the track upon which the train was approaching for a distance of over a quarter of a mile from the crossing where the accident occurred, except two trees, which could not wholly obstruct the view of an oncoming train, and which were about 40 rods from the crossing.” The trainmen, therefore, could have seen that distance. At the rate the train was. moving, the team must have been approaching the track at a right angle when it was a quarter of a mile away. If the train were running at a speed of 45 miles an hour, it would only take about one-third of a minute to run a quarter of a mile.
The deceased was large for his years, but his judgment, care and discretion should be measured by the -fact that he was in the sixth grade at school, which is the ordinary grade foe a boy of his age. There is no presumption that a child 14 years of age has such discretion, care and prudence as an adult. Ittner Brick Co. v. *198Killian, 67 Neb. 589. And the question whether a child has been guilty of contributory negligence is ordinarily one to be determined by the jury. Breedlove v. Gates, 91 Neb. 765. There is no rule of law which will impute to a child of 13 the negligence of an elderly man, who the jury had the right to infer continued to drive the team. We think it cannot be said that this boy was engaged in a joint enterprise with Johnson, who was driving the team when last seen, and who was employed by the father of the child. We have held that, if ordinary care requires the giving of signals by a railroad engineer on approaching a private crossing, it is negligence not to give them. Chicago, B. & Q. R. Co. v. Metcalf, 44 Neb. 848.
The train was late, and was running at an unusual rate of speed. The fireman testifies that he stopped ringing the bell when he left the mill crossing, and was engaged in putting in a fire until after the accident occurred, so it is clear no bell was ringing for 1,620 feet before the accident. He also said he based his answer that he rang the bell upon the fact that on approaching crossings that was his habit. He ceased to look out when he stopped ringing. The last whistle was blown at the depot, which was about 2,300 or 2,400 feet to the south of the crossing, the wind blowing from the north. The engineer testified that from the time he left the mill crossing until he reached the private crossing he would not be able to see persons driving along the lane on the left-hand side, and could not see anything on that side until it came almost directly in front of the locomotive. It is apparent, therefore, that all vigilance ceased at the mill crossing.
In this state of facts I think the views expressed by the supreme court of Iowa in the case of Johnston v. Delano, an action brought by the father of deceased to recover for the same death, reported in 154 N. W. (Ia.) 1013, are correct. There is a difference in the applicable law of the two states in this: That in Iowa *199there is a presumed incapacity for contributory negligence in a child under the age of 14, while in this state the rule is as before stated. This, however, does not affect the conclusion. In my view, the case involves disputed questions of fact which required submission to the jury.
Morrissey, C. J., concurs in this dissent;