The defendants' machinery was in perfect order and properly managed. They were conducting their lawful business in a lawful way, and in the usual and ordinary manner. During the plaintiff's presence they made no change in the operation of their works or in their method of doing business. No immediate or active intervention on their part caused the injury. It resulted from the joint operation of the plaintiff's conduct and the ordinary and usual condition of the premises. Under these circumstances, an adult in full possession of his faculties, or an infant capable of exercising the measure of care necessary to protect himself from the dangers of the situation, whether he was on the premises by permission or as a trespasser, could not

recover.

The plaintiff was an infant of 8 years. The particular circumstances of the accident-how or in what manner it happened that the plaintiff caught his hand in the gearing-are not disclosed by the case. It does not appear that any evidence was offered tending to show that he was incapable of knowing the danger from putting his hand in contact with the gearing, or of exercising a measure of care sufficient to avoid the danger. Such an incapacity cannot be presumed. Stone v. Railroad Co., 115 N. Y. 104, 109-111, 21 N. E. 712; Hayes v. Norcross, 162 Mass. 546, 548, 39 N. E. 282; Mulligan v. Curtis, 100 Mass. 512, 514; Cosgrove v. Ogden, 49 N. Y. 255, 258; Kunz v. City of Troy, 104 N. Y. 344, 351, 10 N. E. 442; Lovett v. Railroad Co., 9 Allen, 557, 563.

An infant is bound to use the reason he possesses, and to exercise the degree of care and caution of which he is capable. If the plaintiff could, by the due exercise of his intellectual and physical powers, have avoided the injury, he is no more entitled to recover than an adult would be under the same circumstances. The burden was upon him, and the case might be disposed of upon the ground that he adduced no evidence tending to show that he had not sufficient reason and discretion to appreciate the particular risk of injury that he incurred and to avoid it. But it may be that evidence tending to show the plaintiff's incapacity was adduced, and that the case is silent on the subject, because this particular question was not made by the defendants.

Assuming, then, that the plaintiff was incapable either of appreciating the danger or of exercising the care necessary to avoid it, is he, upon the facts stated, entitled to recover? He was a trespasser in a place dangerous to children of his age. In the conduct of their business and management of their machinery the defendants were without fault. The only negligence charged upon, or attributed to, them is that, inasmuch as they could not make the plaintiff understand a command to leave the premises, and ought to have known that they could not, they did not forcibly eject him. Actionable negligence is the neglect of

a legal duty. The defendants are not liable unless they owed to the plaintiff a legal duty which they neglected to perform. With purely moral obligations the law does not deal. For example, the priest and Levite who passed by on the other side were not, it is supposed, liable at law for the continued suffering of the man who fell among thieves, which they might, and morally ought to have, prevented or relieved. Suppose A., standing close by a railroad, sees a two year old babe on the track, and a car approaching. He can easily rescue the child, with entire safety to himself, and the instincts of humanity require him to do so. If he does not, he may, perhaps, justly be styled a ruthless savage and a moral monster; but he is not liable in damages for the child's injury, or indictable under the statute for its death. Pub. St. c. 278, § 8. "In dealing with cases which involve injuries to children, courts * have sometimes strangely confounded legal obligation with sentiments that are independent of law." Indianapolis v. Emmelman, 108 Ind. 530, 9 N. E. 155. "It is important to bear in mind, in actions for injuries to children, a very simple and fundamental fact, which in this class of cases is sometimes strangely lost sight of, viz. that no action arises without a breach of duty." 2 Thomp. Neg. 1183, note 3. "No action will lie against a spiteful man, who, seeing another running into danger, merely omits to warn him. To bring the case within the category of actionable negligence, some wrongful act must be shown, or a breach of some positive duty; otherwise, a man who allows strangers to roam over his property would be held answerable for not protecting them against any danger they might encounter while using the license." Gautret v. Egerton, L. R. 2 C. P. 371, 375.

What duties do the owners owe to a trespasser upon their premises? They may eject him, using such force, and such only, as is necessary for the purpose. They are bound to abstain from any other or further intentional or negligent acts of personal violence,— bound to inflict upon him, by means of their own active intervention, no injury which by due care they can avoid. They are not bound to warn him against hidden or secret dangers arising from the condition of the premises (Redigan v. Railroad Co., 155 Mass. 44, 47, 48, 28 N. E. 1133, 14 L. R. A. 276), or to protect him against any injury that may arise from his own acts or those of other persons. In short, if they do nothing, let him entirely alone, in no manner interfere with him, he can have no cause of action against them for any injury that he may receive. On the contrary, he is liable to them for any damage that he, by his unlawful meddling, may cause them or their property. What greater or other legal obligation was cast on these defendants by the circumstance that the plaintiff was (as is assumed) an irresponsible infant? If landowners are not bound to warn an adult trespasser of hidden dangers,--dan

gers which he, by ordinary care, cannot discover, and therefore cannot avoid,-on what ground can it be claimed that they must warn an infant of open and visible dangers, which he is unable to appreciate? No legal distinction is perceived between the duties of the owners in one case and the other. The situation of the adult in front of secret dangers which by no degree of care he can discover, and that of the infant incapable of comprehending danger, is, in a legal aspect, exactly the same. There is no apparent reason for holding that any greater or other duty rests upon the owners in one case than in the other.

There is a wide difference,—a broad gulf,— both in reason and in law, between causing and preventing an injury; between doing, by negligence or otherwise, a wrong to one's neighbor, and preventing him from injuring himself; between protecting him against injury by another, and guarding him from injury that may accrue to him from the condition of the premises which he has unlawfully invaded. The duty to do no wrong is a legal duty. The duty to protect against wrong is, generally speaking, and excepting certain intimate relations in the nature of a trust, a moral obligation only, not recognized or enforced by law. Is a spectator liable if he sees an intelligent man or an unintelligent infant running into danger, and does not warn or forcibly restrain him? What difference does it make whether the danger is on another's land, or upon his own, in case the man or infant is not there by his express or implied invitation? If A. sees an 8 year old boy beginning to climb into his garden over a wall stuck with spikes, and does not warn him or drive him off, is he liable in damages if the boy meets with injury from the spikes? 1 Hurl. & N. 777. I see my neighbor's two year old babe in dangerous proximity to the machinery of his windmill in his yard, and easily might, but do not, rescue him. I am not liable in damages to the child for his injuries, nor, if the child is killed, punishable for manslaughter by the common law or under the statute (Pub. St. c. 278, § 8), because the child and I are strangers, and I am under no legal duty to protect him. Now, suppose I see the same child trespassing in my own yard, and meddling in like manner with dangerous machinery of my own windmill. What additional obligation is cast upon me by reason of the child's trespass? The mere fact that the child is unable to take care of himself does not impose on me the legal duty of protecting him in the one case more than in the other. Upon what principle of law can an infant, by coming unlawfully upon my premises, impose upon me the legal duty of a guardian? None has been suggested, and we know of none.

An infant, no matter of how tender years, is liable in law for his trespasses. 1 Chit. Pl. 76; 2 Kent, Comm. 241; Cooley, Torts, 103; Pol. Torts, 46; 2 Add. Torts, 1126, 1153; 10 Am. & Eng. Enc. Law, 668 et seq.; Humphrey

v. Douglass, 10 Vt. 71; School Dist. v. Bragdon, 23 N. H. 516; Eaton v. Hill, 50 N. H. 235; Bullock v. Babcock, 3 Wend. 391; Williams v. Hays, 143 N. Y. 442, 446-451, 38 N. E. 449, 26 L. R. A. 153; Conklin v Thompson, 29 Barb. 218; Neal v. Gillett, 23 Conn. 437; Huchting v. Engel, 17 Wis. 230. If, then, the defendants' machinery was injured by the plaintiff's act in putting his hand in the gearing, he is liable to them for the damages in an action of trespass, and to nominal damages for the wrongful entry. It would be no answer to such an action that the defendants might, by force, have prevented the trespass. It is impossible to hold that, while the plaintiff is liable to the defendants in trespass, they are liable to him in case for neglecting to prevent the act which caused the injury both to him and them. Cases of enticement, allurement, or invitation of infants to their injury, or setting traps for them, and cases relating to the sufficiency of public ways, or to the exposure upon them of machinery attractive and dangerous to children, have no application here. Danger from machinery in motion, in the ordinary course of business, cannot be distinguished from that arising from a well, pit, open scuttle, or other stationary object. The movement of the works is a part of the regular and normal condition of the premises. Sullivan v. Railroad Co., 156 Mass. 378, 31 N. E. 128; Holbrook v. Aldrich, 168 Mass. 15, 46 N. E. 115, 36 L. R. A. 493; Rodgers v. Lees, 140 Pa. St. 475, 21 Atl. 399. The law no more compels the owners to shut down their gates and stop their business for the protection of a trespasser than it requires them to maintain a railing about an open scuttle or to fence in their machinery for the same purpose. Benson v. Traction Co., 77 Md. 535, 26 Atl. 973, 20 L. R. A. 714; Mergenthaler v. Kirby, 79 Md. 182, 28 Atl. 1065. There was no evidence tending to show that the defendants neglected to perform any legal duty to the plaintiff. McGuiness v. Butler, 159 Mass. 232, 236, 237, 34 N. E. 259; Grindley v. McKechnie, 163 Mass. 494, 40 N. E. 764; Holbrook v. Aldrich, 168 Mass. 15, 17, 46 N. E. 115, 36 L. R. A. 493, and cases cited. Verdict set aside. Judgment for the defendants.

PARSONS, J., did not sit. The others con

curred.

BREWSTER v. MACK et al. (Supreme Court of New Hampshire. Strafford. March 12, 1897.)

WILLS-BEQUEST TO A CLASS-VESTED REMAINDERS-EXECUTORS-MANAGEMENT

OF ESTATE-TRUSTEE-NECESSITY.

1. Testator, who had five children, two of whom had died, leaving minor children surviving, directed that after his widow's death his estate should be divided into five equal parts, each surviving child and the children of his deceased children each to take one-fifth part, but that the minor heirs of the deceased children should not

reduction of one would defeat the testator's expressed intention, by making unequal that which he said should be equal. We think it clear the testator intended the surviving children or child of his daughter Isabella should have one-fifth of the estate,-that he considered her children together as a class. Hence the surviving child became entitled upon the death of the testator, as the only representative of the class, to the whole of the fifth share which vested immediately upon the testator's death, despite the intervening life estate, and the fact that the enjoyment of the legacy was withheld until the child should arrive at the age of 21. Benton v. Benton, 66 N. H. 169, 20 Atl. 365; Parker v. Leach, 66 N. H. 416, 31 Atl. 19. This grandchild having died since the vesting of the legacy, the father, William Eddie, upon the facts stated, is now entitled to the whole share. Pub. St. c. 196, §§ 1, 2; Benton v. Benton, supra; Whitten v. Davis, 18 N. H. 88, 90.

There is no occasion for the appointment of a trustee to care for the shares of such of the grandchildren as are not yet 21. There is no reason why that duty may not properly be performed by the executor. Barker v. Hayes, 61 N. H. 643; Bell v. Sawyer, 59 N. H. 393; Madigan v. Burns, 58 N. H. 405; Ham v. Ham, Id. 70. That the executor should do so appears to have been intended and expected by the testator. Whether, in the due administration of his trust, the executor should join with the other legatees in a conveyance of a part of the estate; whether, to carry out the purposes of the will, the executor should now be licensed to sell the whole real estate; whether the real estate should be divided or sold by proceedings in partition, or the interests of the minors preserved undivided or in severalty after partition.-are questions upon which the facts before us are insufficiently stated to authorize any expression of opinion, and upon which the executor, as trustee, probably will not need instruction, while authority for such action as may be necessary can be obtained from the probate court. Pub. St. c. 194, § 15; Id. c. 198, § 10. Case discharged. All concurred.

NEWTON v. NEW YORK, N. H. & H. R. CO. (Supreme Court of Errors of Connecticut. Nov. 28, 1899.)

RAILROADS-REMOVING GRADE CROSSINGCLOSING STREET-DAMAGES.

1. Where a railroad company, to remove a grade crossing, closes a street on which a lot abutted, at a point not in front thereof, and without interfering with the easement of access immediately in front thereof, the owner cannot maintain a private action for damages, though access to it is rendered more inconvenient,-a more circuitous route being necessitated, since the injury sustained is one in common with the public.

2. A railroad company, in removing a grade crossing, closed a street on which a lot abutted,

in compliance with an order of the railroad commissioners, but did not proceed under its charter (4 Priv. Acts, p. 1021, § 7), empowering it to purchase, receive, and hold real estate necessary and convenient to accomplish the objects of its incorporation and to construct its road and making it liable to persons whose real estate is taken or injured. Held, that the owner could not, under the charter, recover resulting damages.

Appeal from superior court, New Haven county; Milton A. Shumway, Judge.

Action by Louisa A. Newton, executrix of the estate of Thomas E. Newton, deceased, against the New York, New Haven & Hartford Railroad Company to recover damages for injury to, and depreciation in the value of, land of the plaintiff's testator, caused by the elimination of a grade crossing, brought to the superior court in New Haven county, where a demurrer to the complaint was overruled, and the cause was afterwards tried to the jury. Verdict and judgment for the plaintiff for $2,200, and appeal by the defendant for alleged errors in the rulings and charge of the court. Error.

The plaintiff is the executrix of Thomas E. Newton, late of the town of Orange.

In her complaint she avers: That as such executrix she is the owner of a certain piece of land in the said town of Orange (being in the borough of West Haven), bounded east by Union street 207 feet, more or less. That said Union street was a highway running substantially north and south, about a mile in length, and was one of the principal thoroughfares in the said borough. That the defendant is a steam-railroad corporation, operating a line of steam railway through the state of Connecticut, and through the said town, across said Union street, at a place about 50 feet south of the plaintiff's said land. That: "(5) Some time during the year 1894 the defendant closed up said street near the said premises of said Thomas E. Newton, where its railroad crossed said Union street, and diverted the course of said Union street adjoining the premises of the said Thomas E. Newton to the west, alongside and substantially parallel with the defendant's tracks for a distance of about five hundred (500) feet, and then excavated under the railroad tracks of the defendant, and thereby changed the grade of said Union street, and ran said street under said tracks coincident with a certain street in said town of Orange known as 'Washington Avenue'; and after passing under said railroad tracks said street ran alongside and substantially parallel to the defendant's tracks on the south side thereof, for about five hundred (500) feet to the east, and to the original location of said Union street, on the south side of said track. (6) Prior to the time when said Union street was closed as aforesaid, the premises of the said Thomas E. Newton had been, and at that time were, and are, improved by two dwelling houses, barns, and other valuable buildings, which had a large rental value;

and there were several building lots upon said Union street frontage which were of great value. (7) By reason of the said acts of the defendant, the access to and egress from the said property was seriously interfered with. Said street is no longer a public thoroughfare, or of such convenience to the said property as it was theretofore. The said property was rendered permanently inaccessible, and of less value for rental purposes, and was greatly depreciated and damaged, because of the said acts of the defendant. (8) The said property of the said Thomas E. Newton was rendered permanently of much less value than before said acts of the defendant, and was damaged thereby to the extent of three thousand dollars." There were various motions, and rulings thereon, a demurrer, which was overruled, and an answer, as follows: "(1) As to paragraphs 1, 2, and 6, the defendant has no knowledge, or information sufficient to form a belief. (2) The allegation of paragraph 3 that Union street was one of the principal thoroughfares in said borough of West Haven, and in said town of Orange, is denied. As to whether said Union street was a highway, the defendant has no sufficient knowledge or information to form a belief. (3) Paragraph 4 is admitted, as to the existence of the defendant corporation, and operation of its lines of tracks, and defendant avers that said line of railway is its four-tracked main trunk line between New Haven and New York; but, as to the existence of any highway known as 'Union Street' at the place where the tracks of the defendant are located, the defendant has no knowledge, or information sufficient to form a belief, except that it is denied that, at the time when said railroad was laid out and constructed, any highway or other way whatever existed at said place, and it is denied that the defendant's line of railway crosses, or is run across, any such highway or way. (4) Paragraph 5 is denied, except that at or near the place mentioned in paragraph 4, where Union street, so called, is alleged to cross the tracks of the defendant at grade, viz. fifty feet or more southerly of the premises of said Newton, and southerly of the new street hereinafter referred to, running from Union street to Washington avenue, north of defendant's tracks, the defendant, acting under and in pursuance of an order of the board of railroad commissioners of the state of Connecticut dated the 1st day of February, 1894, made under and by virtue of chapter 220 of the Public Acts of 1889, closed said Union street, so called, to the public, at a point about feet from the defendant's line of railway, and prevented access to and travel over its tracks within the lines of Union street, so called, thereby abolishing a dangerous grade crossing at said place. And, except, further, that on or about said day the defendant constructed and opened upon its

feet from defend

own land, and about ant's line of tracks, and wholly at its own expense, at grade, a street forty feet in width, running westerly from Union street, so called, in a straight line to Washington avenue, one of the main throughfares of said borough, upon which the station of the defendant is situated,-said new street being practically an extension easterly of York street, and being about feet northerly of defendant's line of railway, said street being immediately southerly of and adjoining the premises of said Newton,-without changing the grade of any portion of Union street, or closing or obstructing the same at any point where the land of said Newton abuts upon said Union street, or upon said new street opened by the defendant. And except, further, that under and in pursuance of said order the defendant changed the grade of Washington avenue by lowering the same so that it passes under the tracks of the defendant at a distance of five hundred feet from said Union street, and that the defendant further opened and constructed a new street southerly of its tracks, and about therefrom, running from Washington avenue to said Union street, so as to connect Wood street with said Washington avenue; said street being practically an extension westerly of Wood street. (5) Paragraph 7 is denied, and it is further averred that access to or egress from said property was in no way, or to any degree, interfered with as alleged, and that said property was in no degree rendered inaccessible. (6) Paragraph 8 is denied." The plaintiff denied all the new matter in the answer. There was a trial to the jury, and the plaintiff had a verdict for substantial damages. The defendant appeals.

Henry Stoddard, George D. Watrous, and Harry G. Day, for appellant. William H. Williams and Seymour C. Loomis, for appellee.

ANDREWS, C. J. (after stating the facts). The plaintiff alleges in her complaint that, as executrix of Thomas E. Newton, she is the owner of a tract of land in the town of Orange which abuts on its easterly side on a certain highway known as "Union Street." It appears in the case that the defendant is a railroad corporation operating a four-track railroad through the said town of Orange, and across the said Union street at grade. Acting in pursuance of an order of the railroad commissioners made for the purpose of removing the said grade crossing, and another like crossing in an adjacent street, the defendant closed a portion of the said street at a part of it where the land of the plaintiff did not abut, and changed the line of the street so as to enable travelers to pass around the closed portion. The situation can be readily seen by the subjoined diagram, copied from the brief of the plaintiff's counsel: