delivered the opinion of the court.
The main question presented by the record and in argument is, whether the verdict and judgment are justified by the evidence. Does the evidence with all the inferences fairly and justifiably to he drawn from it show that appellant was guilty of the negligence averred in the declaration ?
There is some controversy in the evidence as to the point wdiere the accident happened. But the testimony on both sides of the case places it at a considerable distance north of Twenty-fourth street. The evidence shows it was a dark evening and that Wentworth avenue at this point was poorly lighted. The car itself was well lighted, and its electric headlight threw a light upon the street some distance ahead of the car.
We think from the testimony of appellee’s witnesses that the car was not going at a high, reckless or immoderate rate of speed and that it stopped after the accident occurred south of Twenty-third place. According to the testimony of the witnesses for appellant the car was running about ten miles an hour, which was about the usual and normal speed at that place.
The evidence on behalf of appellee is silent as to any negligence of the motorman in the management and operation of the car. Morland and Polcaster, who were called as witnesses on behalf of appellee and who claim to have been on the front platform of the car at the time of the accident, do not testify to any act of negligence on the part of the motorman.
The evidence affirmatively shows, without any conflict, that the car and its stopping appliances were in good repair and working order; and that the motorman promptly and effectively employed the stopping appliances as soon as he became aware of the presence of the children and their inten*12tion to cross the track, effecting what one of the witnesses called an “emergency stop.”
The motorman of the car, Sanford, testified that the street was clear of traffic and teams, and that just before he reached Twenty-third place two children appeared near the southbound track running as fast as they could, the boy a little in advance of the girl and a little closer to the car. The children were then about thirty feet from the car and in front of the Marie Chapel on the west side of the street at the third door from the corner of Twenty-third place. He at once reversed his machinery, rang the bell and sanded the track. The deceased did not appear to have seen the car. The little girl saw it and put out her hand, but she was running so fast she could not stop. The car struck them and they both fell on the fender. In this statement of the accident the motorman is substantially corroborated by the witness Meslein, who was on the front platform of the car, and by other witnesses.
Our conclusion from the evidence is that it does not show that appellant was guilty of the negligence averred in the declaration, and that the verdict and judgment are not justied by the evidence and cannot be sustained.
The judgment therefore is reversed with a finding of fact.
Reversed.
Mr. Presiding Justice Baker dissenting.