¶1 dissenting. I am unable to concur fully in the opinion of the court. I agree with the conclusion that the decision of the trial justice should not be sustained; but my reason for coming to that conclusion is different from the reason given in the majority opinion.
¶2 The rescript of the trial justice seems to me to indicate quite clearly that he bases his decision for the plaintiff largely on inferences which he draws from several things which he states as facts and which he says connect the de *354 fendant with the assault on the plaintiff. One of these is that the defendant flourished the slingshot about “just prior to the injury received by the plaintiff.” I can find no evidence that he did that immediately before the injury occured, which, as the plaintiff testified, was about fifteen minutes after the defendant came out with the slingshot.
¶3 The trial justice states also that just before the defendant arrived on the scene Ruth Montgomery had applied an epithet to the plaintiff and from this and the fact that she also went into the house to get some water to throw on the boys, he draws the conclusion that it is quite apparent “that what had begun in play had developed into something like a quarrel between the two girls and the three boys.”
¶4 But the only testimony as to the epithet is that of the plaintiff, who said that it was applied early in the affair before the throwing of sticks began; and there is no evidence that the defendant knew anything about it. The two girls and the three boys mentioned were small children and I find no sufficient evidence to support the conclusion that there was a quarrel which would make anybody on one side wish to hurt anybody on the other.
¶5 For the reasons stated, I am of the opinion that the inference which the trial justice seems to draw, that the defendant intended to hit the plaintiff with a missile from the slingshot, and on which he seems to a great extent to rest his decision, is clearly not supported by the preponderance of the evidence. Whether, in the absence of this inference, he would have rendered a decision for the plaintiff is doubtful.
¶6 I therefore am of the opinion that the decision should be set aside; but I cannot agree with the majority of the court that there was no evidence in support of a decision for the plaintiff. Hence, it is my conclusion that a new trial of the case should be ordered.