In determining whether the plaintiff's evidence should have been submitted to the jury, it is to be treated in the most favorable aspect to his case of which it is reasonably susceptible. So tested, the admission in the answer that the plaintiff's decedent died on the day he is said to have received his injuries, coupled with the testimony as to their nature and extent, would have warranted the inference that death resulted from the injuries, while the boy's age — six years — left it exclusively for the jury to say whether contributory negligence was attributable to him.Lynch v. Shearer,
Whether or not the defendant's conduct was negligent rested upon these facts: His automobile, "going fast," was driven without warning signal of any kind and with no slackening of its speed, toward the place where seven or eight young boys were playing on the edge of the traveled road, shouting, in motion, and noisily absorbed in and intent upon their game, and came into fatal collision with the plaintiff's decedent, who was one of the boys so engaged. We cannot say that in the situation so presented, and with the question *Page 208 of contributory negligence wholly eliminated by the age of the boy, the jury might not have found for the plaintiff.
There is error and a new trial is ordered.