DISSENTING 'OPINION OP
MR. JUSTICE W'OLE.The court below found that the child in this Case did not die of poisoning from chenopodium or any other drug. To overcome this finding of the court it should have appeared in the record that this child would not have died if no chenopodium had been administered. The court had a right to believe from the evideh.ee that the child was very ill and may have died from natural causes, inasmuch as, although a doctor was called in, the prescription was not administered until a month later when any disease of the child may have progressed mortally. The possibility that the child would have died without the drug or from natural causes is not rigorously excluded, as ought to be the case to justify a reversal. No one of the experts saw him before his death and the testimony of his parents that tends to show he was well is contradicted by the mother’s final determination to administer the drug, as well as by the fact that he was without appetite. I am not sufficiently convinced that the court below was mistaken in its special finding, although my principal grounds of dissent are based on other considerations. It may be added that, assuming, as apparently does the majority opinion, that a dose of three minims, given three times, would be harmless, then I am not without doubts whether it was clearly shown, given the special finding, whether a greater quantity was given.
*730I am strongly inclined to believe, however, from the evidence that even small doses of chenopodinm may be' dangerous if not promptly removed from the system. This Fas shown by the expert evidence. The mother gave clear evidence tending to show that after the administration of the drug the child neither vomited nor had a movement of the bowels. There was no evacuation. Hence it became evident, as declared by the expert for the defendant, that no sufficient dose of castor oil was given. If chenopodinm is a mortal drug, as • the expert declared, then a sufficient quantity of castor oil was not prescribed. Under these circumstances it seems to me that the defendant was not shown to be responsible for the death. At least it should have been demonstrated that the dose actually or supposedly given the child would have caused his death despite the administration of the due amount of castor oil.
This is a case which approaches closely to a homicide and where, as in cases of fraud and the like, the proof ought to have been clear and convincing. This position is strengthened by the judgment in favor of the defendant. If there was a lack of proof of culpability in any respect it makes no difference that in arriving at its general Conclusion the court made an erroneous finding. The burden remained on the complainant and appellant to show convincingly that the acquittal of the defendant was erroneous and to dispel the doubt that the death was due to the maladministration of the drug by the attendant doctor. Non constat that the child would not have died by any administration of the dangerous drug, given bis actual condition. As testified, the child ought to have been examined before any dose was given, and the mother, without any warning from the doctor, waited thirty days.
I have not attempted to make any careful examination of the authorities with regard to proximate cause and the like, but it seems to me that Schaffer v. Railroad, 105 U. S. *731249, is applicable. There the complainant was injured in a railroad accident and became thereby disordered in mind and body to such an extent that eight months thereafter he committed suicide. The defendant was excluded from liability. The Supreme Court said, quoting from the court below:
“It is admitted that the rule is difficult. But it is generally held, in order to warrant a finding that negligence or an act not amounting to wanton wrong is the proximate cause of an injury it must appear that the injury was the natural and probable consequence of the negligence or wrongful act and that it ought to have been foreseen in the light of the attending circumstances.”
Given the fact that chenopodium is only ordinarily administered with copious doses of castor oil and after a careful examination by the attending doctor of the condition of the patient, it was not within the prevision of the defendant that the drug would be given without an adequate purge by castor oil. The main point of my dissent is that the possibility that the child would be -alive today if castor oil in sufficient quantities had been given, has not been excluded.