Dissenting Opinion.
The. opinion of the Court was delivered by
Lew, J.I respectfully dissent from the opinion of the majority of the Court in this case. My reasons for this dissent are briefly these:
I do not consider there was any contributory negligence on the part of the child or its parents.
I think there was negligence on the part of the Railroad Company. The car was stopped by the driver at or near the crossing of the street. The Company had, it is true, imposed upon the driver the duty of *164preventing boys and others, from swinging on the rear of the car. To accomplish this, the driver had stopped his car and gone to the rear of his car. In the meantime, the small child, about two years old, who had strayed from its parents’ house near the point where the stoppage occurred, and being unseen by the driver, he looking towards the rear and not in front of him, put the car in motion, which ran over and killed the child.
Proper precaution on the part of the Company might have avoided this lamentable calamity. '
It is the duty of such companies to adopt proper precautionary measures to prevent such occurrences. If, either through indifference or actuated by a parsimonious spirit, the Company failed in this instance to provide these precautionary measures, it was guilty of negligence, and should be mulcted in damages. The prpper post of the driver was in front of his car; there lie could see all obstacles, in front; could control the movements of the car, and be in a position to check it and protect street passengers from danger.
The Company failed to do its duty in regard to the matters mentioned, and I think, in view of such negligence, became liable for damages in this case.
Wayfarers on the public streets have rights which street railroad companies are bound to respect. It is, in my opinion, their duty to adopt prudent means, even if they involve an expenditure of money, whereby with care and proper vigilance and diligence, accidents may be generally prevented. .
Rehearing refused.