(dissenting). The infant plaintiff, when a boy of nine and one-half years, was herding the town cattle adjacent to the line of defendant’s railway. He fell asleep on the track and was run over by a locomotive, causing the loss of his arm and a leg. The jury gave *132plaintiff a verdict for $8,000. The court gave judgment for defendant notwithstanding the verdict, and the plaintiff appeals.
The question presented is one of negligence and contributory negligence. When the plaintiff rested and defendant rested, the defendant moved the court to direct a verdict in its favor because the record failed to show any negligence on the part of the defendant and because the undisputed testimony showed that the boy was guilty of contributory negligence as a matter of law. The motion was denied and exception taken.
The law of the case is given by statute: Section 5948: “Every one is responsible not only for the result of his wilful acts, but also for an injury occasioned to another by his want of ordinary care or skill in the management of his property or person, except so far as the latter wilfully or by want of ordinary care brought the injury upon himself. . .
The accident occurred in July, 1912, and about five years afterwards, this’ action was commenced. The train which run over the boy consisted of four cars, two of which were passenger cars. The engineer testified he saw nothing on the railroad track until about a half a mile from the Milage. Then he noticed a dog on the track at a distance of about two br three hundred feet. When at a distance of 30 or 35 feet the dog left the track. Then the engineer saw a boy lying there. He was lying bdtween the rails, flat down. The engineer blew the whistle, shut off the steam, set the brakes, and, as he testifies, the boy did not move. He made an emergency stop, put on the brakes with all force, and when the train stopped the boy was lying behind the front tracks of the head car.
The boy testified that he lay on the track, facing east; that his black shepherd dog, a small pup about seven months old, lay behind him and about a foot from him. He did not hear the train till it was within 5 or 6 feet, and then, without seeing the train, he tried to roll off the track and had just got his right leg and arm on the track when he was caught. The train cut off the leg below the knee and the arm above the elbow. He testifies he was not asleep, — and there is no claim that be was deaf. His story is not credible. If not asleep, he would have heard the train in time to get off the track. But whether asleep or awake, it appears the boy was guilty of contributory negligence of the grossest kind. The engineer was not guilty of any negligence. He did *133not suspect, and he had no occasion to suspect, that a boy lay on the track; and when he saw the boy he did all that was possible to stop the train. Then he took him from under the train; took him back to New Leipzig. The testimony shows conclusively and beyond all doubt the plaintiff has no cause of action. Order should be affirmed.