delivered the opinion of the court.
It is contended by attorneys for appellee that notwith standing the age of the injured boy, then less than six years old, he is yet barred from recovery on the ground of his contributory negligence. That question is no longer however an open one in this state. The recent decision in Chicago City Ry. Co. v. Tuohy, 196 Ill. 410, 422, expressly holds that “ where the testimony shows that a child is only six years old or less, he is incapable of such conduct as will constitute contributory negligence, so far as the exercise of due care for his own safety is concerned.”
Ttie material question is whether the evidence supports the charge of negligence causing the injury on the part of appellants. It is strongly urged that the verdict and judgment are against the weight of . the evidence. The alleged negligence of appellants as claimed by appellee consisted, it is said, in not lowering the gates at the crossing when the boy approached the tracks from the east; that the tower man was grossly negligent in not giving the boy some warning, by not ringing the bell, and that the engineer made no attempt to prevent the injury until he whistled and set his brake at the moment when it became apparent the boy was likely to come in contact with the engine. The testimony introduced in an effort to show that the gates were not lowered as the train approached is not of the most convincing nature, especially that of the witness who, after stating that the gates were up, after-wards, apparently in a moment of forgetfulness, spoke of the boy as “ crossing under the gates.” There is no doubt that the preponderance of the testimony sustains appellants’ contention that the gates were down. There is like conflict as to whether the tower bell wa^ rung, giving warning of the approaching train. There is an overwhelming amount of positive testimony tending to show that the engine bell was ringing automatically, and had been so ringing continuously all the way from Englewood, which is not seriously contradicted. The fact that a witness does not notice or hear a bell is not of equal weight with positive testimony that it was ringing. W. C. St. Ry. Co. v. Mueller, 165 Ill. 500.
Appellee’s attorneys, however, do not apparently rely upon the evidence relating to the gates and bells to sustain the charge of negligence against appellants but contend that the verdict and judgment should be sustained upon the testimony of the engineer of appellant in charge of the train by which the boy was injured. This witness stated that when about half a block away from the crossing, he saw the boy coming across the tracks from the east on a slow run; that he immediately whistled and called out to the boy, who paid no attention, but ran against the pilot beam and fell back about twenty feet. The witness states that he immediately applied the brakes and stopped the train. The contention is that it was negligence in the engineer to sound the whistle before applying the brakes; that the train was running at the rate of twenty-two feet a second, and that if the brakes had been applied first the train might have “been running slower when the boy ran against the pilot beam of the engine, or the boy might have gotten safely across in front of the train. It is apparent from- the testimony of the engineer that he states he acted promptly, doing at once the things which he deemed suited to the emergency. If the boy had heeded the sharp warning of the whistles and was able to stop in time, it would have been apparent the alarm had served its purpose; whereas, had the brake been first applied, and the alarm given afterward the boy might have been struck on the track and run over instead of being struck before he got on the track. In C., B. & Q. R. R. Co. v. Johnson, 103 Ill. 512, it is said that to sustain a charge of negligence, the party should have notice of the conditions “at least long enough before the injury inflicted to have enabled him to have formed an intelligent opinion as to how the injury might be avoided and apply the means.” The testimony' of the witness tends to show prompt action on his part, and even if he had made an error in judgment in doing one thing before another, such error would not necessarily and as a matter of law constitute negligence. The engineer was bound to use reasonable care to avoid the injury when he saw, or by exercise of ordinary- prudence might have seen, the danger. See Chicago West Div. Ry. Co. v. Ryan, 131 Ill. 474.
As the case may be retried we refrain from further discussion of the merits. We are of opinion that the judgment is not justified by the evidence and it will therefore be reversed and the cause remanded.
Reversed and remanded.