*347The opinion of the court was delivered, November 14th 1870, by

— We think it would have been manifest error had the learned judge affirmed the defendants’ 6th point. To have done so, would have been to impute negligence to the plaintiff’s son, in not regarding a warning of danger from a cause entirely different from that by which he lost his life. The Painters warned the boys, the deceased and others, off the gangway, because it was a passage for laborers and workmen to pass through with iron, trucks, wheelbarrows, &e.; it was on account of this kind of use of the passage-way that they considered it dangerous. Jacob Painter says he “ did not expect danger from whence it came, but from wheelbarrows,” &e.; “never thought of danger from cars.” The cars were overhead, and there was no possible danger from them where the boy was killed, unless they were pitched off the tramway and fell on somebody below. This was not anticipated by the Painters or anybody else. There could be no danger from this source unless from inevitable accident, recklessness or carelessness. That there was negligence on part of the defendants below in not sufficiently securing their tramway so as to stop the headway of their cars, was scarcely denied, and that this was the occasion of the cars going overboard and killing the boy, is undeniable. But because he was under the tramway in the passage below, it is thought he was guilty of contributory negligence. He could not be guilty of negligence as to the defendants, without there was some reason to expect danger, and a duty of care on his part in relation to it. There was ordinarily none. He had a right, therefore, to suppose everything secure and safely managed on the tramway, and because it was not, he was killed. Precisely the same argument could have been used if the boy had been killed in that place.by the negligent use of fire-arms discharged a hundred yards off. If he had a moment’s leisure to amuse himself in the interim of his labor, and did so where he had no reason to expect danger, the fact that he did so was of itself no evidence of negligence on his part. We think that the plea of contributory negligence was not made out by the testimony referred to in the point, and the court did right in refusing it.

Judgment affirmed.