dissenting •. I am unable to concur in the decision of this case, as announced in the foregoing opinion. While I concur in all that is said in the opinion relating to the law applicable to the case, I am of the opinion that the facts, which seem to me to be clearly established by the evidence in the record, are not such as to make out a case of criminal negligence against the defendant.
Certainly, it is not shown that the defendant was driving his car at such a rate of speed as to amount to reckless and wanton conduct on his part or such conduct as would make out a case of assault, on the prosecuting witnesses, with his automobile, under such circumstances as to show an abandoned and malignant heart. Under all the evidence in the case, except that of the policeman, the defendant was driving not to exceed 15 miles an hour. That the testimony of the policeman is worthless on the subject of the speed is apparent for his testimony shows that his estimate of the speed was purely a conclusion, and, in my opinion, it further shows that the premises on which he based his conclusion were without any foundation whatever.
In what, then, did the criminal conduct of the defendant consist? The evidence shows that he had a very mistaken idea of what the whistle crossing-signals meant. But this is quite immaterial, for the testimony of the defendant and the witness who was sitting beside him in the automobile were both to the effect that neither of them heard the policeman’s whistle at "all. In my opinion, the most that can be said of the defendant’s conduct, from the evidence in the record, is that he was careless and negligent in overrunning the crossing, after the whistle had been blown. That he must have been close to the crossing when the whistle was blown is apparent from the testimony of the disinterested witness, Hopf, who was following the defendant in the Buick car, approximately a block behind him. This witness gave it, as his. recollection, that even when he reached Bandolph street, the east and west traffic, which apparently had been standing in Bandolph street, waiting to proceed into Michigan avenue, when the signal was given, had not as yet proceeded into Michigan avenue.
As far as the failure of the defendant to see the Carrolls in time to avoid striking them is concerned, it is apparent that the Carrolls had an even better opportunity to see the defendant’s car than the defendant had to see them and yet they both testified that they looked north and south before proceeding onto the roadway, and did not see defendant’s car until immediately before they were struck.
I appreciate the fact that traffic conditions in such a great city as Chicago have come to be such that the operation of an automobile in the congested districts is exceedingly dangerous to pedestrians having occasion to cross the roadways, unless such operation is conducted with due care and unless the laws of the road and the rules of traffic are carefully observed, but, in my opinion, that does not mean that where a driver is careless, or negligent, and overruns a crossing signal, failing to stop where he should, and strikes a pedestrian, it follows that he has been guilty of such gross and wanton negligence as to amount to a criminal act, which would warrant finding him guilty, of assault with a deadly weapon, under circumstances showing an abandoned and malignant heart. Cases are cited by counsel for the State where such convictions have been had, and, in my opinion, properly so, for the evidence in those cases established that the defendants there being prosecuted had been guilty of such a degree of reckless conduct as to fulfill those conditions which the statute calls for, in order that the offense of assault may be made out. In my opinion that was not the case here.