GEORGIA SUPREME COURT.

erroneous, was harmless.

each case on its own facts; unhampered by pre- | & Eng. R. R. ('as. 652; Hanks v. Boston & A. sumptions of law either for or against the com- R. Co. 147 Mass. 495, 35 Am. & Eng. R. R. petency of the child. In the present case, how- Cas. 321; Morgan v. Pennsylvania R. Co. 7 ever, the charge of the court on this subject, if Fed. Rep. 78; Rome R. Co. v. Tolbert, 85 Ga. 447; Bulger v. Albany R. Co. 42 N. Y. 459; Chicago & A. R. Co. v. McLaughlin, 47 1. 265; Burke v. Broadway & S. Ave. R. Co. 49 Barb. 529; McKenna v. New York Cent. & H. R. R. Co. 8 Daly, 304; Hearn v. St. Charles Street R. Co. 34 La. Ann. 160.

3. Only express consent would serve to license a thoroughfare under stationary cars. Mere knowledge by a railroad company or its servants that numerous persons, including children, without any public or private right of way, passed daily and hourly through its yard, situate in or near a populous part of the

Though a standing railway train be an uncity, and crawled under stationary cars occupy- authorized obstruction of a public crossing, a ing its tracks, will not render it liable for an in-person attempting to pass between the cars by jury accruing to a child by a sudden and involuntary movement of a long line of such cars, resulting from the negligence of the company's servants in handling other cars several hundred yards distant from the scene of the accident, such other cars rolling against the standing cars and setting them in motion while the child was pass-posure to danger. ing under one of them.

4. The other grounds of the motion are

not cause for a new trial.

ERR

(July 13, 1891.)

RROR to the City Court of Atlanta City to review a judgment in favor of plaintiff in an action brought to recover damages for personal injuries alleged to have resulted from defendant's negligence. Reversed.

The facts are stated in the opinion.
Messrs. Calhoun, King & Spalding and
J. T. Pendleton, for plaintiff in error:

A railroad company owes no duty to persons who have no right to be upon its tracks, except not to intentionally injure them. This is true, although it may have permitted people to cross the tracks without objection, where there was no public crossing, thus giving an implied license to do so. The licensees who avail them selves of the license must take the risk of danger. Wharton, Neg. § 388 a.; 1 Thomp. Neg. 158: Sutton v. New York Cent. & H. R. Co. 66 N. Y. 243; Matze v. New York Cent. & H. R. R. Co. 1 Hun, 417; Illinois R. Co. v. Godfrey, 71 Ill. 500; Illinois Cent. R. Co. v. Hetherington, 83 Ill. 510; Johnson v. Boston & M. R. Co. 125 Mass. 75; Morrissey v. Eastern R. Co. 126 Mass. 377; Vanderbeck v. Hindry, 34 N. J. L. 467; Nicholson v. Erie R. Co. 41 N. Y. 525; Gaynor v. Old Colony & N. R. Co. 100 Mass. 214; Jeffersonville, M. & I. R. Co. v. Goldsmith, 47 Ind. 43; Galena & C. U. R. Co. v. Jacobs, 20 Ill. 478; Sweeney v. Old Colony & N. R. Co. 10 Allen, 372; Gillis v. Pennsylvania R. Co. 59 Pa. 129; Wright v. Boston & A. R. Co. 2 New Eng. Rep. 725, 142 Mass. 296, 28 Am.

West. Rep. 438, 45 Ohio St. 11; Palmer v. Chicago,
St. L. & P. R. Co. 11 West. Rep. 676, 112 Ind. 250; Da-
vis v. Chicago & N. W. R. Co. 58 Wis. 646; Troy v.
Cape Fear & Y. V. R. Co. 99 N. C. 298.

An invitation to the public to use a railroad crossing as a highway may be established by use with permission of the company, even if the crossing leads only to private premises. Hanks v. Boston & A. R. Co. 147 Mass. 495.

So it was held that increased vigilance was required of railroad employés to prevent injury to members of a family who were in the habit of crossing the track from their dwelling to a well between which the railroad had been built. Isabel v. Hannibal & St. J. R. Co. 60 Mo. 475.

climbing over the platform and bumpers, if injured thereby in consequence of a sudden movement of the train, cannot recover unless the engineer, conductor or some other person having control of the train's movements knew of his attempt to cross or had notice of his ex

Andrews v. Central R. & Bkg. Co. 10 L. R. A. 58, 86 Ga. 192.

There can be no license to crawl under cars. Griswold v. Chicago & N. W. R. Co. 64 Wis. 652, 23 Am. & Eng. R. R. Cas. 468.

The plaintiff must exercise ordinary care or be responsible for ordinary care, whether she knew what ordinary care was or not.

White v. Central R. & Bkg. Co. 83 Ga. 595. She lacked one month of being nine years old; she was a smart, sprightly girl and had lived for years within one hundred yards of of this place, and knew as well as anyone the danger of going under cars.

Moore v. Pennsylvania R. Co. 99 Pa. 301, 4 Am. & Eng. R. R. Cas. 572; Cauley v. Pittsburg, C. & St. L. R. Co. 95 Pa. 398, 2 Am. & Eng. R. R. Cas. 4, 8.

A person who tries to use a track while the railroad is using it is a trespasser.

Central R. Co. v. Thompson, 76 Ga. 772; Wilds v. Brunswick & W. R. Co. 82 Ga. 669. A serious trespass which exposes the trespasser to danger will bar a recovery.

Central R. Co. v. Brinson, 70 Ga. 207; Centrai R. Co. v. Thompson, 76 Ga. 772; Western & A. R. Co. v. Meigs, 74 Ga. 857; Baston v. Georgia R. Co. 60 Ga. 339.

Due care is the rule, and not ordinary care. Western & A. R. Co. v. Young, 81 Ga. 397, 415, 83 Ga. 512, 518.

Messrs. Hoke Smith and Burton Smith for defendant in error.

Simmons, J., delivered the opinion of the court:

Maud Rylee, by her next friend, brought

signal the approach of a train to a path across the track which the public has been permitted to use, the failure of such signals may constitute negligence. Houston & T. C. R. Co. v. Boozer, 70 Tex. 530.

A railroad company was also held liable for negligently backing a gravel train over a school girl six years old at a crossing which school children were in the habit of using, although not a public highway. Bellefontaine & I. R. Co. v. Snyder, 18 Ohio St. 399.

By a similar application of the principle as to license it is held that boys are not trespassers in riding on a freight train if they have been habitually allowed to do so. Ecliff v. Wabash, St. L. & P. R.

Although there may be no statutory duty to Co. 7 West. Rep. 462, 64 Mich. 196. B. A. R.

1. Counsel for the plaintiff insisted that the deed was admissible because the exception in the warranty showed that at the time the Railroad Company bought the land people were using the place as a pass-way, and thus brought home knowledge to the Company of this fact. The deed was clearly inadmissible and irrelevant. While the warranty in the deed was a limited one, it was not the purpose of the grantors in making the limitation to assert or to give notice to the grantee that the public had acquired the right to pass over the land. The grantors only intended to limit their liability in case it should subsequently appear that the public asserted a right to use the land as a passway. The limitation in the warranty does not give notice, nor was it intended to give notice, to the grantee that the public had acquired or were exercising the right of passage over the land. The other evidence tending to show how the premises were used before they became the railroad yard of the Company was also irrelevant and inadmissible. The Company could not be bound by the use made of the premises by the permission or acquiescence of its former owner. The Company purchased it for the purpose of laying tracks and running cars thereon, and for the purpose of keeping other cars standing on it when not in use,-a purpose totally inconsistent with the former use by the public. The purpose for which the Company purchased the land, to wit, to lay tracks, and keep standing cars thereon, destroyed the former use by the public. It was, in effect, a notice to the public that the land could not be used longer as a pass-way. It seems, therefore, it would be absurd to hold that the Company was bound to recognize the former use made of this land by the public.

her action against the defendant for damages. | was a common wagon-way until about 1870. So far as specifically enumerated, the facts From 1855 to 1860 there was no obstruction in the declaration (excluding certain mere across the old Monroe track. "We passed on conclusions therein stated, and which, in just as though it continued a street. We connection with the specific facts alleged, walked on it, and drove on it, and rode on made the declaration good against a demur- it." The defendant moved to rule this out, rer) were substantially proved, and were as because it did not show a permissive use by follows: The defendant Company had a yard the defendant to pass over its tracks, but rein which it left stationary cars. Two streets ferred to a use at a time prior to the occupancy ended at this yard, but there was a pass-way of the place by tracks, and before its ownerfrom one of these streets to the shops of ship by the defendant. This objection was another railroad company; and this pass-way overruled, and the defendant assigns error was used by men, women, and children at thereon. all hours of the day, and was so used with the knowledge of the defendant. The places at which the people were accustomed to pass were, at the time of the injury, occupied by stationary cars, and "the line of cars stretched as far as the eye could see. The plaintiff was under nine years of age, and was going to the shops of another railroad to carry a meal to one of the employés. When she reached the place where people usually crossed she found it occupied by these stationary cars. There was no way for her to cross except by passing under the cars. Children in the neighborhood were in the habit of passing beneath the cars while standing at the place. In attempting to pass under one of the stationary cars she was in jured. Th injury was occasioned by the employés of the defendant “kicking" other cars from a quarter of a mile above where the child was, and out of sight, and these cars ran down and "kicked" the stationary cars, so as to cause them to move, and the one under which the child was ran over her leg. The plaintiff further proved that people were in the habit of crossing at this place before the Railroad Company established its yard. The plaintiff also introduced the deed by which the defendant Company obtained title to this property, dated in 1869, in which it was recited that the Company then claimed and had possession of the premises therein described, which were also claimed by the vendors, who had brought ejectment against the Company, which, to settle the action, and to obtain an undisputed warranty title to the premises in fee simple, had, by way of compromise, and without surrendering its former claim or conceding the invalidity thereof, agreed to pay the vendors $2,000, for which consideration the vendors warranted the title to the premises against the claims of all persons whatsoever; but this warranty was not to extend to any right the Western & Atlantic Railroad and certain other named persons might have to remove the buildings, tracks, or other structures erected by them on the premises, "nor to any right of way the public may have acquired in streets, ways, or roads over, across, or upon said premises. The defendant objected to the admission of this deed in evidence, "because it showed no use by the public of a pass-way across its tracks, and because, if it did, it showed a right to use by the public, whereas this suit is to recover on the ground of permissive use by the defendant." The objection was overruled, and the defendant excepted. A witness for the plaintiff testified that he had lived on Mechanic Street since 1863; that it

2. The judge charged the jury that "the law declares that an infant under the age of ten years prima facie does not have sufficient capacity and discretion and knowledge of right and wrong to make her responsible for her conduct and acts, unless it is clearly shown that she had such capacity and discretion. The presumption is that she did not have sufficient capacity to be sensible of danger, and to have the power to avoid it, and this presumption continues until overcome by proof showing the contrary." This charge was excepted to by the defendant, and assigned as error in its motion for a new trial. Where a child under fourteen years of age is injured, and brings his action for the injury, and there is a demurrer to the declaration on the ground that the allegations therein

show that the child did not observe due care, or could have avoided the injury by the ob servance of such care, the court may overrule the demurrer on the ground that prima facie the child did not have sufficient knowledge or capacity to know what was due care, or sufficient capacity to have avoided the injury by its observance, and may invoke the analogy of the criminal law, and hold that the presumption is that the child did not know or did not have sufficient capacity, as was held in the case of Rhodes v. Georgia & R. Bkg. Co., 84 Ga. 320. But where there is no demurrer, and the case is submitted to the jury, there is no presumption one way or the other, and the jury must find from the evidence whether the child had sufficient capacity at the time of the accident to know the danger, and to observe due care for its own protection. If it has such capacity, and voluntarily goes into danger or to a dangerous place, it cannot recover; otherwise it can. Western & A. R. Co. v. Young, 81 Ga. 397, 83 Ga. 512.

| cars, he must prove to the satisfaction of the jury an express license from the Company. It would be unreasonable to hold the Company bound by an implied license or permission when the Act is of such a negligent character. It would be unreasonable to hold the Company bound by an implied license when it is occupying the track with its own cars. It would be unreasonable to hold that it had agreed that others might have a joint occupancy of the tracks at the time the Company was using them for its own purposes. The joint use by the Company and by the public of the tracks at the same time would be so inconsistent and so dangerous that the law will not imply a license from the Company to the public for such joint use. The placing of stationary cars in its yard on the tracks where people are accustomed to pass is notice to the public not to attempt to pass while the cars remain, and if a person undertakes to pass under the cars he does so at his peril. It is different where the public pass over a track which is occupied by a It depends altogether upon the capacity of railroad company with its cars only a few the child at the time of the injury. The times a day, and then when the track is not better rule would be for the jury to deal being used by the company. In a case of with each case upon its own facts, unham- that kind, where the railroad company perpered by presumptions of law either for or mits people to pass over its track when not against the competency of the child. In the in use by the company, the permission may present case, however, the charge of the amount to an implied license; but where the court on this subject, if erroneous, was harm-company is in continuous occupation of its less. tracks, either in running its cars or in keep3. It was argued by counsel for the defend-ing stationary cars thereon, a license will ant in error that the fact that the people were not be implied. allowed to use this place as a pass-way to go under these cars when they were stationed upon the track was a license by the Company for them to do so, and the Company was therefore bound, before it moved the stationary cars, to give the public notice; and, not having done so in this instance, it was guilty of such negligence as would authorize the plaintiff to recover. It is such gross negligence and want of care and so reckless an act for persons to attempt to pass under cars which are left standing upon the track and are liable to be moved at any moment, that we do not think a license can be implied from the fact that the Company had knowledge that people were in the habit of passing under the cars there. Where, under such circumstances, a person attempts to pass under the cars and is injured, before he can recover upon the theory that he had a license to pass under the

The facts of this case show that the cars constantly occupied these tracks; that this stationary train was more than a quarter of a mile long; and that at the upper end of the train the servants of the Company, negligently perhaps, kicked another train of cars against the stationary train and set it in motion, and thus injured the plaintiff. We do not think the mere knowledge by the Company or its servants that numerous persons passed daily and hourly through its yard, situated in a populous part of the city, and that they crawled under these stationary cars, will render the Company liable for an injury occurring to this child, under the facts above stated.

4. The other grounds of the motion are not cause for a new trial. Judgment reversed.

See notes to Sheanon v. Pacific Mut. L. Ins. Co. hard (Ill.),10 L. R. A. 383.

EXCEPTIONS by defendant to rulings of though it appears incidentally that he was at

the Burlington City Court, made during the time acting in disobedience of some statthe trial of an action brought to recover upon ute, unless his illegal act was the efficient or two policies of accident insurance which re- proximate cause of the injury complained of, a sulted in a judgment in favor of plaintiff. Re-recovery may be sustained nevertheless. versed.

The insurance for which the plaintiff paid did not cover injuries resulting wholly or part- It was not because he was walking on Sunly, directly or indirectly, from any violation of day that he was hurt. Had he received his law on the part of the insured, whether such injury while fighting, or committing a breach violation of law be regarded as a cause or a of the peace, or a burglary, it would be differcondition. Plaintiff's injury manifestly re-ent, and within the line of cases where this sulted from his gross violation of sections 4315 defense has been permitted, as in and 4316 of the Revised Laws with reference to the observance of Sunday.

In using the term "violation of law" the Day v. Highland St. R. Co. 135 Mass. 113, Company could not have contemplated any and cases there cited; Cratty v. Bangor, 57 Me. violation not in itself importing personal peril 423. See also Baldwin v. Barney, 12 R. I. 392;-involving the doing of something which huPlatz v. Cohoes, 89 N. Y. 223; Johnson v. man experience has shown to be fraught with Irasburgh, 47 Vt. 28: Travelers Ins. Co. v. peril to the person. Seaver, 86 U. S. 19 Wall. 531, 22 L. ed. 155, should be decisive of this case.