dissenting separately.
It seems that, even though the evidence does conflict, there is sufficient under the rule to sustain the verdict. A few points wifi be noted.
Motorman Craig who'drove the car .testified on the part of defendant: “I set the brakes and the car stopped almost immediately. * * * I consider I had my car under perfect control, and had the slack up out of my chain because I was expecting to make a stop, and the car was. drifting slowly out so-that I made an easy stop.” He said he thought the boy “belonged to the lady.” He also said: “If I was looking out of the south window of my vestibule from where I stand in the vestibule I would never see a child as small as that, so that if he was within three feet of the corner of the car I could not see him until I knew he was there and looking extraordinary for him. * * * In order to stop a car like that moving, say at four miles an hour, I think a man would make a good stop if he made it between eight or twelve feet.” Craig’s testimony was discredited by three, or four witnesses.
William Schafer testified on the part of plaintiff. He said the lady was at no time between the boy and the approaching car. “Q. Did the boy get on the track? * * * A. Yes, sir. Q. And was he on the track when he was struck? A. Yes, sir; on the first rail; that is the south rail.” He .said the boy was struck by “the curve of this flange” on the front of the car at a point over the south rail. I made an attempt *350to get the boy after the car had struck him, but failed, and the next attempt I made, I caught the boy, but his foot was caught under the wheel. Q. And what did he do? A. Well, I could not pull the boy loose, and I was afraid of pulling his foot off, and so I hollered to the motorman * * * to give • me slack, so that I could get the boy’s foot loose.” He testified that he stepped on the track about two feet in front' of the car, and that it ran about ten or twelve feet before it stopped after it struck plaintiff. “Now, what did you do as soon as you got to the boy while he was lying there on the track? A. I picked him up. * * '* I held the boy and hollered at the motorman, and waved’ and tried to attract his attention to get slack, or reverse the car. * # * Q. How far did it move while you had hold of the boy? A. About four feet.” On the cross-examination he testified that he saw nothing to indicate that the boy accompanied the woman. That the fender did not drop is not denied.
R. Gr. Jeffers, called by plaintiff, testified: “Q. Well, where was he (plaintiff) with reference to the south rail? A. Well, he was just by the corner when the car got him. * * * Q. Well, how far did the car go after it struck him? A. About ten feet.” He told about the car wheel pushing the boy’s foot along the rail. “Q. Do you know when somebody hollered whether the motorman knew what had happened or not? A. Well, I think, yes, sir; he must have, because he went after that brake wheel pretty hard. * * * I seen him go through the motions of turning that wheel. * * * Q. Well, did you see him go around more than once? A. Yes, sir, he went around more than once I think.” This evidence of Craig’s unusual exertion at the wheel at a place where a slight turn, perhaps a quarter turn or less, would have stopped the car if he had it under control doubtless' convinced the jury that he was grossly negligent.
It is obvious that Jeffers’ testimony discredits Craig’s version of “perfect control” of the car and of *351having “the slack up” in his chain and of making “an easy stop.” It may well be that, when Craig finally “set the brakes, the car stopped almost immediately.” Evidently the wheels -slid when the brake was applied because, as Schafer testified, “the wheel never ran over the foot; it just shoved the foot along the rail.” If Craig, when he last saw plaintiff “out of the right-hand front vestibule window, and not out of the side window,” as he testified, had used reasonable diligence in setting the brakes, it is not likely the boy would have been seriously injured. It ,is apparent from his own testimony that he saw the boy at the same time and place that Schafer and Jeffers saw him, namely, almost or quite on the south rail just before the car struck him. It was for the jury to determine whether the motorman was using “all reasonable diligence in watching for all * * * persons on foot, and especially children, either on the track, or moving toward it,” as the ordinance provides.
R. C. Liston was called by plaintiff, and testified that he was about fifty feet away, and saw the hoy struck by the front of the car “probably" about two or three inches to the right of the track,” and that the part of the car that struck him was about on a level with the hoy’s shoulders. Prom the marks on the rail he believed the boy’s foot was dragged about a foot and a half.
Two former motormen testified in substance that without leaning forward an object on the ground can he seen by a motorman within two feet of the front of the car from the place where he stands in the vestibule. They also testified that the car in question when running four or five miles an hour could be stopped within four or five feet if, as Craig testified, the slack was taken up. Defendant’s superintendent of transportation made a test of the car in question when it was running “as close as possible to four miles per hour.” He testified: “I had the slack taken up in my chain. # # * I made four tests with car No, 243, *352I stopped it from nine to ten and one-half feet.” The distance on the outside of the car from the front center of the vestibule to the center of the front axle is eleven feet and ten inches. The front of the platform curves from the center to the corners so that the part that is directly over the track is a little over ten feet from the center of the front axle.
Nearly all of the testimony quoted in the majority opinion is that of Mr. Jeffers. Though called by plaintiff his testimony plainly shows that he was a hostile witness. His cross-examination by defendant as reproduced in the majority opinion appears in a series of leading questions and willing answers. This is mentioned merely because the case seems to be reversed on the ground that the testimony conflicts and that there is not sufficient evidence to support the verdict.
The court instructed the jury on the question of comparative negligence, thus invoking a rule in defendant’s interest that is not applicable in a case involving a child under six years of age. 29 Cyc. 560. The jury being "so instructed; it will he assumed that, if it found that plaintiff by any negligence of his own contributed to the happening of the accident, the rule was applied by the jury to the facts. Rev. St. 1913, sec. 7892.
Craig says that he saw the hoy before the car struck him. The boy was struck by the car platform at a. point almost immediately over the south rail. Prom that part of the platform to the center of the front wheel is a little more than ten feet. In view of the testimony of the former motormen that the car, under the circumstances attendant on this case, could have been stopped in from four to six feet, it seems difficult to escape the conclusion that, if the motorman had used reasonable diligence and care, he could have stopped the car before the wheel reached plaintiff. It would seem that there is sufficient evidence to support the verdict.
Morrissey, C. J., and Aldrich, J., concur in this dissent.