dissenting. — In my judgment the foregoing opinion of the majority of the court cannot be read with attention without producing a settled conviction in the mind of thfe reader that there was evidence tending to show negligence on the part of the intestate’s co-employes which did authorize the jury, in the exercise of their discretion, without bias, passion or prejudice, to find for plaintiff upon the issue involving defendant’s negligence. Indeed, I think it is both directly and inferentialy admitted'in the majority opinion that evidence of negligence of defendant was before the jury. It is directly admitted that there was some evidence tending to show that the cars moved, after the outcries of the intestate were heard by the by-standers, a distance indicating that they were not stopped with such promptness as proper care required, if the brakeman heard *633the outcries as soon as the by-standers. And it is also conceded that intestate’s outcries were heard by the by-standers before any attempt to stop the cars was made. Surely, whether the fact that others heard the cries was, .under all the circumstances, evidence sufficient to authorize the conclusion that the cries were heard, or ought to have been heard, by those in charge of the train, were questions for the jury. The fact that others heard the cries is a circumstance tending to prove that the brakeman did or could have heard them. The weight of this circumstance should be determined by the jury, and not by this court. The opinion of the majority contains other statements, which, to my mind, show conclusively that there was not such an absence of evidence upon the issue of defendant’s negligence as authorizes this court to reverse the judgment.
The argument of the majority opinion upon the question of the insufficiency of the evidence to show defendant’s negligence is astute, critical and of great ability. It seems to me that when there is such absence of evidence as authorizes a court to set aside a verdict, we ought to see it- without having our judicial vision strengthened by keen and critical argumentation. The necessity for such an argument shows conclusively that there is evidence which the argument exhausts itself in attempting to deny. That plain and clear absence of proof which requires us to reverse a judgment for want of evidence to support the verdict cannot exist, when it is necessary, in order to establish it, to resort to fine and acute argument. The argument might, with propriety, be addressed to the jury, but ought not to be the lever used to overthrow its verdict. In my opinion the judgment of the circuit court ought to be affirmed.
I am authorized to announce that Mr. Justice Rotiirook concurs in this dissent.