I concur in the dissenting opinion to the extent that it holds that this court cannot say as a matter of law that the child in whose behalf this action was brought, was guilty of contributory negligence. I think there was evidence showing some care on the part of such child, and whether it used that degree of care and caution to be expected from one of its age, capacity and experience, surrounded and circumstanced as it was at the time of its injury, was, in reason, and, in law, as evidenced by the authorities cited in the dissenting opinion, a question of fact for the jury and not one of law for the court.
Note.—Reported in 96 N. E. 973; 98 N. E. 1091. See, also, under (1) 3 Cyc. 348; (2) 29 Cyc. 526, 601; (3) 36 Cyc. 1533, 1537; (4) *60129 Cyc. 537; (5) 29 Cyc. 535; (6) 29 Cyc. 541, 36 Cyc. 1563; (7) 36 Cyc. 1563; (8) 36 Cyc. 1605; (9) 29 Cyc. 530; (11) 29 Cyc. 560; (12) 29 Cyc. 531; (14, 22) 36 C. 1517, 1565; (15, 19) 36 Cyc. 1567; (16) 29 Cyc. 531; (17) 29 Cyc. 532; (20) 36 Cyc. 1527; (23) 36 Cyc. 1602; (24) 36 Cyc. 1638; (25) 36 Cyc. 1633; (28) 36 Cyc. 1631; (29 ) 36 Cyc. 1568. As to the last moment to which presumption, that person in dangerous condition will seek place of safety, may be indulged, see 69 L. R. A. 554. As to the applicability of the doctrine of last clear chance where danger is not actually discovered, see 55 L. R. A. 418; 36 L. R. A. (N. S.) 957. As to whether wantonness or wilfulness, precluding defense of contributory negligence, may be predicated on the omission of a duty before the discovery of a person in a position of peril on a railroad or street railway track, see 21 L. R. A. (N. S.) 427.