delivered the opinion of the court.
The main grounds relied upon by appellant for a reversal of the judgment are that the verdict is not sustained by the evidence, and that the verdict is against the manifest weight of the evidence. These questions may be considered together.
There is a serious conflict in the evidence as to Avh'ether the accident occurred at the north crossing of Thirty-third street, or thirty or forty feet north of the crossing; as to the speed at which the south-bound car was running just before the accident, whether four or five miles an hour as claimed by the appellant or twelve miles an hour as claimed by the plaintiff’s witnesses; as to whether or not the gong of the south*386bound car was sounded or not, and whether the motorman used every effort to avoid striking the deceased after she appeared from behind the north-bound car.
Without stating the evidence of each witness, we think a preponderance of the evidence shows that the little girl attempted to cross Wentworth avenue thirty or forty feet north of the Thirty-third street crossing, and that the north-bound car while standing at the northeast corner of the streets and starting up after discharging its passenger attracted her attention and interfered with her vision so that she did not notice or see the car which struck her until she was on its track, and that she then sought to avoid it by running in a southwesterly direction; that the speed of the car as it approached Thirty-third street was too great for the car to be under full control by the motorman, as it should have been at that point under the existing circumstances. The evidence shows, we think, that the motorman, after the deceased appeared from the rear end of the other car, was unable, because of the speed at which his car was running and the condition of the rails, to stop the car before it struck the deceased, although he made every effort to do so, and that he was sounding his gong. The jury, we think, were warranted by a preponderance of the evidence in concluding that the accident happened because of the negligence of the defendant in running its car at too great a speed as it approached Thirty-third street just as a north-bound car was leaving that point; and that by reason of the speed of the car the motorman did not have it under full control, so as to be able to stop it in time to avoid striking persons who might step out from behind the north-bound car in an attempt to cross the street.
On the evidence, which is conflicting on practically all the material points in the case, the question of defendant’s negligence is a close one. The negligence of the defendant was in running its car, at that place and under the conditions existing, at an excessive rate of *387speed, and that was a question for the jury. What is ordinary care depends upon conditions which demand its use. Conduct which at some crossings and under certain circumstances would be ordinary care, would not be at others. C. C. R. R. Co. v. Loomis, 102 Ill. App. 326; C. C. R. R. Co. v. Roach, 76 Ill. App. 496 (affirmed in 180 Ill. 174); C. C. R. R. Co. v. Robinson, 127 Ill. 9; W. C. St. Ry. Co. v. Stoltenberg, 62 Ill. App. 420; C. C. R. R. Co. v. Tuohy, 196 Ill. 410.
Unless it appears to us that the verdict is manifestly and palpably against the weight of the evidence we cannot set it aside. Upon a careful examination of the evidence in this case, we are not convinced that the verdict is manifestly against the weight of the evidence. Chicago City Ry. Co. v. Sandusky, 198 Ill. 400; W. C. St. R. Co. v. Nilson, 70 Ill. App. 171.
Plaintiff’s witness Samuel Frazin testified that after the little girl was struck the motorman applied the brakes. Thereupon plaintiff’s counsel asked him: “Q. Just describe how he did that? A. He seemed to be excited.” Defendant’s counsel moved to strike out the answer, and the court overruled the motion. We think the answer was not responsive to the question, and should have been stricken from the record. But the jury could not have given much weight to the statement of the boy, and we" do not regard the action of the court as material error.
In our opinion the verdict and judgment is excessive. If we were permitted to consider any thing beyond the bare pecuniary loss to the next of kin we would not say that the verdict was excessive. But, ‘‘our statute confines the amount which may be recovered to the pecuniary injury sustained by the next of kin, and that injury is nothing more than a deprivation of a reasonable expectation of pecuniary advantage which would have resulted by a continuance of the life of the deceased.” Graham v. Consolidated Traction Co., 62 N. J. 91. We cannot by any reasonable calculation, even though a most liberal basis be *388adopted, conclude that the actual pecuniary loss to the parents or next of kin exceeded $3,500. If the plaintiff shall within ten days remit the judgment to $3,500 it will be affirmed for that amount. If the plaintiff does not so remit, the judgment will be reversed and the case remanded.
Affirmed on remittitur.
March 22, 1910, remittitur filed and judgment affirmed for $3,500.