delivered a separate concurring opinion.
I concur in the result in which my brethren have arrived in this case, but not on the ground stated in the opinion delivered.
I. It stands admitted in the pleadings that the furnace was tipped over by the plaintiff, though the answer charges that it was done in connection with other wicked boys at play with him. The physical facts shown would indicate that it was tipped over, and the jury would be entitled to make the inference that the plaintiff got burned in consequence of its being tipped over. The material inquiry, then, was, how came it to' be tipped over, and whether it could be tipped over so easily that the servants of the defendant, in the exercise of ordinary prudence, ought to have foreseen that it might be tipped over if left in its exposed condition on *7the sidewalk. The weight and structure of the furnace were, consequently, very material subjects of inquiry, and whether it could have been very easily tipped over, was the point to which the whole inquiry tended.
II. I understand Mrs. Bunge’s testimony to have been to the effect that, very soon after the accident, she visited the scene of it, found the furnace standing on the sidewalk, and near the middle of the sidewalk, which, in the absence of anything to the contrary, we must bake, from common knowledge, to have been, substantially, a level plane. The fire was 'still burning in it, and coals lay on the sidewalk, which had been thrown out of it. She took hold of the handle of it while it was in this position, to see if it would tip easily, and found that “it would tip very easy — -just by putting her hand on it, and without pulling.” This, however improbable, and however strongly contradicted by the defendant’s witnesses, was, in my opinion, competent evidence and material to the subject of inquiry.
III. If, then, the defendant left exposed upon the sidewalk a furnace having a fire of burning coals in it that would tip over easily — by the mere act of putting one’s hand on it, and if it was, as the answer admits, tipped over by the plaintiff, a boy less than five years old, although assisted by other boys, whereby the plaintiff was burned, I am clear that the plaintiff has a case for damages to go to the jury; and, therefore, I do not agree with that part of the opinion of the court which is to the effect that the case ought not to have been submitted to the jury. The fact that the negligence of other boys may have contributed, with that of the plaintiff, to produce the accident, as the answer charges, would not prevent the plaintiff from recovering ; it being a rule of law that if the concurrent or successive negligence of two persons combined, results in injuring a third, -he may recover damages of either or both. Burrows v. March Gas & Coke Co., 2 L. R. 5 Exch. 67; s. c., L. R. 7 Exch. 96; 2 Thomp. Neg. 1070; Eaton *8Railroad, 11 Allen, 500; Illidge v. Goodwin, 5 Car. & P. 190; Lynch v. Nurdin, 1 Q. B. 29; Lockhart v. Lichtenthaler, 46 Pa. St. 151; McCahill v. Kip, 2 E. D. Smith, 413; Peck v. Neil, 3 McLean, 26; Smith v. Dobson, 3 Scott’s N. R. 336; Congreve v. Morgan, 18 N. Y. 84; Irvin v. Fowler, 5 Robt. 482; Ricker v. Freeman, 50 N. H. 420; Wheeler v. Worcester, 10 Allen, 591; Chapman v. Railroad, 19 N. Y. 341; Colgrove v. Railroad, 20 N. Y. 492; Barrett v. Railroad, 45 N. Y. 628; McMahon v. Davidson, 12 Minn. 357; Griggs v. Fleckenstein, 14 Minn. 81, 93; Philadelphia v. Weller, 4 Brews. 24; Carpenter v. Railroad, 11. Abb. Pr. [N. S.] 416. The fact that the plaintiff may have' assisted the other wicked boys, as charged in the answer, in turning over the furnace does not negative his right of recovery ; because a boy less than five years of age is conclusively presumed not to be capable of negligence. Railroad v. Huffman, 28 Ind. 287; Railroad v. Bowen, 40 Ind. 545; s. c., 49 Ind. 154; McGerry v. Loomis, 63 N. Y. 104; Railroad v. Caldwell, 74 Pa. St. 421; Chicago v. Starr, 42 Ill. 174; Weeks v. Railroad, 52 Cal. 602; Railroad v. Vining, 27 Ind. 513. This being so, as the answer charges that the furnace was tipped ovei by the plaintiff and the other wicked boys, I am not clear that if the plaintiff had not replied, he would have been entitled to judgment on the pleadings. At all events, I do not see that the case ought to be withdrawn from the jury merely because it did not appear in evidence how or by whom the furnace came to be tipped over. There are many cases -where the jury must be left to say, from what is shown or admitted, in connection with the physical surroundings,-how the accident probably happened, as where the injury resulted in death, and no witness was present (Buesching v. St. Louis Gaslight Co., 73 Mo. 219), or where, as here, the person receiving the injury is not capable of testifying as to how it happened. I do not think that to submit such a *9case to the jury is to leave them to speculate upon a matter as to which there is no evidence.
IY. I think that the case was put to the jury upon carefully guarded and unexceptional instructions.
V. But I think that the court erred in refusing to allow a witness to testify for the defendant whether, in his judgment, it would have been possible for a boy ten years of age to upset the furnace in the position where the witness saw it that day. In many analogous cases, in actions for damages and in criminal proceedings, . opinion evidence of this kind has been held admissible. Thus, it has been held admissible to ask non-expert witnesses whether on a certain day, the weather was cold enough to freeze vegetables (Curtis v. Railroad, 18 Wis. 312); whether certain holes and gutters in the highway were of recent date (Bates v. Sharon, 45 Vt. 474); whether there was time enough for A to go out of the way before B. rushed upon him (Stewart v. State, 19 Ohio St. 305); whether effluvia proceeding from a certain source would render a dwelling uncomfortable (Kearney v. Farrell, 28 Conn. 319); whether a roadway was wide enough to permit two wagons to pass each other (Fulsome v. Concord, 46 Vt. 135). On the principle of these cases, I think that a witness might be permitted to state whether a boy ten years of age could topple over an object which the witness had examined ; and as this evidence was very material to the subject matter of the inquiry, I think it was error to exclude it.
YI. The damages were clearly excessive ; but I am not prepared to say that we should be justified in so fax opposing our own opinions to that of the jury as to require a remittitur as the condition of affirming the judgment on this ground.