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ence where he has allowed them to go and , maturity, and knowledge. We are aware that be, and must exercise ordinary care to pro- in Flower v. Railroad Co., 69 Pa. 210 [S Am.

it has been held in some cases, as, for instance, tect them from the danger to which they Rep. 251], that if the deceased is a trespasser, will be subjected. Brown v. C. & 0. Ry. Co., his being of tender years makes no difference, 135 Ky. 798, 123 S. W. 298, 25 L. R. A. (N. because the company is under no duty to him S.) 717; Wells v. Kentucky Distilleries & which requires bis protection ; but, in our opinWarehouse Co., 144 Ky. 138, 138 S. W. 278; of contributory neglect, and one should exercise

age should be considered upon a question Bransom's Adm'r v. Labrot, 81 Ky. 638, 50 reasonable care to anticipate and prevent an inAm. Rep. 193; Lyttle, Adm'r, v. Harlan jury to a child of such tender years as to have Town Coal Co., 167 Ky. 345, 180 S. W. 519; nically a trespasser. His condition excuses his

little or no discretion, although he may be techMiller v. Chandler, 168 Ky. 606, 182 S. W. concurrent negligence. Humane considerations 833; Merschel v. L. & N. R. R. CO., 121 Ky. require such a rule. Thus one may incur lia620, 85 S. W. 710, 27 Ky. Law Rep. 465; City by leaving dangerous machinery where it is

bility for an injury to a child of tender years of Owensboro v. York's Adm'r, 117 Ky. 294, accessible to him, although there would be no 77 S. W. 1130, 25 Ky. Law Rep. 1139.

liability to an adult or a child of years of dis

So a These cases go farther, in respect to the cretion under the like circumstances. duty that owners of accessible, attractive, employés, in charge of its moving train, see

railroad company should be held liable if its and dangerous places and premises owe to that a child, say two years old, is walking children that they permit to go about them, around it, and fail to look to its protection, althan the duty and care railroad companies though it may technically be a trespasser, and

not, at the moment, in immediate danger. Their must exercise as we have stated it. But in neglect to do so would be willful. A child withview of the fact that railroad trains and out discretion. although a trespasser, occupies cars are necessarily in exposed and easily a legal attitude to the company similar to that

of an adult, who is not a trespasser, save a accessible places, we think the duty the com- greater degree of caution should be exercised as pany owes to children should be limited to to the former, by reason of his helplessness." cases in which children are knowingly per- Another is Louisville & Nashville R. R. mitted by the persons in charge to get on and Co. v. Popp, 96 Ky. 99, 27 S. W. 992, 16 Ky. go about them.

Law Rep. 369, where the facts were these: Another pertinent case on the care that An infant between 5 and 6 years old was inmust be exercised to protect children who jured when a passenger car standing on a play about railroad premises and trains is siding at a station was put in motion. It Kentucky Central R. R. Co. v. Gastineau's appears from the opinion that the injured Adm’r, 83 Ky. 119. In that case Robert M. boy, accompanied by three other boys, one of Gastineau, a boy between 14 and 15 years of whom was 9 years old, stopped on the platage, was run over and killed by a car of the form at he depot, from which place they railroad company which he was endeavoring were driven off by the baggagemaster. A to uncouple from the train while it was passenger and another employé of the comswitching in the company's yard. The jury pany also tried to make them go away by found by a special verdict that the deceased threats of one sort and another, but instead when killed was voluntarily assisting the of leaving the premises they went to the employés of the road, with their knowledge west end of the platform and into the standand consent, in switching the cars; that they ing car for the purpose of getting ice water. discovered his peril, but too late to prevent after getting the water they loitered about his death, and that he contributed to it by the car until an engine with four cars athis presence and efforts to uncouple the car. tached backed on the track in order to make It is further set out in the opinion that the

a coupling. When the injured boy saw the record did not show what employés of the road, who were present when the accident cars to be coupled coming, he became frightoccurred, knew of and consented to the de- ened and called to some person to help him (edent's assisting in the switching of the to the platform, and in an effort to escape train, although it did appear that none of endeavored to get on a bumper placed at the them had any express authority from the end of the siding to keep the cars from runcompany to authorize it.

ning off the track. There was no direct evi

And the court, after setting forth the duty and care rail- dence that those in charge of the backing road companies owe to adult trespassers, train, or any other employé, actually saw the said:

injured boy on the platform in time to avoid **The question then recurs, Did his age alter injuring bim. And the court said: this rule? Undoubtedly children tender “There is another aspect in which the conyears should not be treated strictly as trespass. duct of appellant's employés shows negligence of ers, when guided by childish instincts, they a reprehensible character. It was known to stray upon the track or into the yard of a rail- them that children of all ages were in the habit road. Thus the rule that a traveler about to of resorting to the depot premises, yet not only cross a railroad track must be vigilant and look were the two cars coupled to the backing train both ways does not apply to an infant of ten- without any servant being in a position to war der years.

He knows nothing of care, diligence, appeller of his danger, but one of the cars, if or danger. The rule as to negligence upon his not both, was left open, so as to invite and part, and by an adult, is properly quite differ- tempt children to enter, as appellee and his ent. The latter must give that are to his own companions did do; and if the two men who protection which is ordinarily exercised by one gave them water were not actually employés, the of ordinary discretion; while less is required of fact is thus made apparent that the cars were an infant, the degree depending upon his age, I left so open and exposed that any one, child o:

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adult, might enter at will, no employé being the company know of this custom and make no present to prevent or warn them of the coupling objcction to it, the company is bound to carry process that would and did shortly take place. the burden which such a knowledge and tacit

* In our opinion, if appellant elected to permission imposes, and this burden would rekeep uninclosed its passenger depot and adja- quire the company to comply with the demands cent premises, so that childred miglit go there, of ordinary care for the prevention of injury and tempted by curiosity or thirst wander upon to the children." its railway tracks and into its cars, it was the duty of its employés to know appellee's position It is insisted, however, by counsel for the and danger, and to be in a position at the prop- company, that the facts of this case do not er time to protect him from injury by its mov- bring it within the scope of the rule laid ing trains and cars, especially as it was improper to couple cars on" that track and at that down in the cases referred to, but that it is place."

and should be controlled by the doctrine anMany other courts have laid down the nounced in L. & N. R. R. Co. v. Webb, 99 same principles that are well stated by the Ky. 332, 35 S. W. 1117, 18 Ky. Law Rep. Georgia Supreme Court in Ashworth

258; Monehan v. South Covington & CincinSouthern Ry. Co., 116 Ga. 635, 43 S. E. 36, nati St. Ry. Co., 117 Ky. 771, 78 S. W. 1106, 59 L. R. A. 592, a case more nearly like this 25 Ky. Law Rep. 1920; Swartwood's Gdn. v. one on the facts than any that has come

L. & N. R. R. Co., 129 Ky. 247, 111 S. W. 305, under our notice. In that case it appears 33 Ky. Law Rep. 785, 19 L. R. A. (N. S.) 1112, from the petition, which the court held stat- 130 Am. St. Rep. 465; and other like cases. ed a cause of action, that for 2 or 3 years

In the Webb Case, Webb, a boy 11 years prior to the day of the injury to Ashworth old, while attempting to get off of a moving it was the custom of children living in a freight train, slipped, and, one of his legs little town through which the train ran to getting under the wheels, it was cut off. It board the engine and cars, and this custom appears from the opinion that Webb and of the children, of riding upon and jumping other boys about his age had occasionally asoff the cars and engine, was known to the sisted in unloading freight at the depot of defendant company through the knowledge the company previous to the day on which of its servants and employés who operated the accident occurred, and that the conductor the train. The children who were accus- encouraged the boys to assist in unloading tomed to board the engine and cars ranged the freight by promising them that they in age from 6 to 15 years. Ashworth, who might ride on the train from the station to was 8 years old, in common with a number the water tank. Webb had ridden twice on of other children, climbed upon and into the the train to the tank before he was injured, cars, and Ashworih got on the running board but on the day he received the injuries he of the engine, and after it had started they was not at the depot when the train arrived, attempted to jump off, at which time Ash- but the other boys were and assisted in unworth fell under the wheels, and both of his loading the freight, although Webb did not, legs were cut off. The court upon these facts nor did the conductor say anything to him said:

about it, or promise him a ride, or invite "If a railroad company expressly invites, or

or request him to ride. Webb reached the tacitly permits, persons to be upon its prem- depot while the boys were unloading and just ises, or in and about its machinery, the company before the train started. owes to such persons the duty, not only not to arrived at the tank and had stopped, Webb

After the train injure them when their presenco becomes known, but also to anticipate their presence at the and the other boys who had ridden to the time when or the place where such invitation tank got off and went back towards the rear of or permission would probably bring about their the train, and after it was started Webb and presence, and to take such measures as ordinary prudence would require to prevent injury to the other boys took hold of the ladders on them if they are in fact present. A railroad the side of the cars, and in a little while company is the owner of its right of way, its jumped from them to the ground while the track, and its machinery, and is entitled to exclude therefrom others who have no interest or train was moving; when Webb jumped his right therein. A railroad company which con- feet struck a pile of coal near the track and tinuously permits persons to be upon its right his foot went under the wheels. There was of way or in or about its machinery, at given times and places is put on notice by this con- no evidence that the conductor or any of the duct on its part that such persons may be pres- other employés of the company saw Webb ent at such times and places; and by this or the other boys when they took hold of the conduct it imposes upon itself the duty, not only to prevent injury to such persons, but to an- ladders, or when they were swinging from ticipate their presence and take the precau- them. tions of an ordinarily prudent person to prevent In discussing the case the court said, in injury to them.

Railroad companies may not be bound to anticipate that children part, that the company could not be made will be allured by passing trains, and attempt liable, unless its servants voluntarily and to board and ride upon them. But when the knowingly exposed Webb to the dangers right of way of a railroad company extends through a place used by a number of children, which resulted in his injury, or, knowing of ages varying from six to fifteen years, as a that he was in danger, negligently failed to playground, and when these children are ac

use such means as were in their power to customed continuously, every time the train enters the playground when they are upon it, relieve him from the danger; further saying: to swarm upon the train and ride to the limits "In this view of the case, in order to renof the playground, and when the employés of der the appellant liable, it was necessary to


prove that the conductor of the train persuaded , attempt to get on the train after it left the or invited the infant appellee to get on the tank.

In other words, the decision of this train and ride to the water tank; that the accident that happened there in which he was in

case was put upon the ground that Webb was jured was one that was likely or might reason a trespasser at the time he got hurt, not ably have been expected to happen to him in technically but actually, and hence the comthe ordinary or natural course of events; that the agents or servants of the appellant' negli- pany did not owe him any duty except to gently failed to exercise care for his protection exercise ordinary care to prevent injury' to commensurate with the danger to wbich they him after his peril was discovered. had voluntarily exposed him.

The bill

In the Monehan Case, Monehan who was 6 of exceptions contains no evidence introduced by either party that showed that the conductor or 7 years old, in company with another either invited or induced the infant appellee to boy of the same age, got on the steps of the ride to the water tank on the day he was injur- rear platform of a street car while it was ed, or that the conductor was aware that be in- standing at a street intersection without intended to board the train, or when he did so.

* And the evidence fails to show that the vitation or consent then or before, and on conductor, or any of the trainmen, saw the ap- the opposite side of the car from where the pellee after reaching the tank until after his passengers were taken on and let off. When foot was mashed.”

the car started he was jolted off and received In holding that it was inadmissible to the injuries for which he sued. There was show what the conductor did and said to the no evidence that the conductor saw the boy boys on days before the accident about let.

on the steps, but it was contended that by the ting them ride to the tank if they would help exercise of ordinary care he could have seen unload the freight, the court said:

him, and whether the company was under a *This testimony ought to have been rejected. The case was between the infant appellee and duty to exercise ordinary care to discover his the appellant, and the subject of the investiga- presence was the real question in the case. tion was what occurred on the day the injuries And the court said: were inflicted, and what occurred on previous days had no necessary connection with and was

“Monehan was a mere trespasser upon the in no sense a part of the transactions of that rear steps of the car, and those in charge of it day. For this reason also the court properly did not owe him any duty of discovering his refused to allow proof to be made in behalf of the peril." appellee of what it was alleged the conductor and the trainmen said to the boys on occasions be Plainly this case has no application here. fore that day about swinging on the ladders at In the Swartwood Case the question for detached to the sides of the cars, and telling them to do this in order to learn to be 'hoppers' and cision was whether railroad companies whose the like, and that the boys were in the habit of lines traverse cities and towns or run through practicing in that way on previous occasions populous communities must maintain a lookwhen they rode to the tank.'

out for children who are in the habit of It will be observed that the court, in the jumping on and off the cars while in motion. course of the opinion, said that in order to The petition, to which a demurrer was sushold the railroad company liable, it was tained, charged in substance, that Swartnecessary to show that the conductor of the wood, a boy about 8 years old, and other train permitted or invited Webb to get on the children, were in the habit of jumping on train, and that the accident that happened and off the cars while in motion, and that to him was one that was likely or that might

the company was aware of this practice. It reasonably have been expected, and that the evidence failed to show these requests. It

was not charged that the company knew will further be noticed that at no time did that the boy was attempting to get on the the conductor agree that the boys might ride car at the time he did, or that the company on the train any farther than the water tank, had neglected to use any precautions to save and that after the train had started from the him from injury after discovering his peril.

And the court said: water tank after stopping there, Webb was hurt in trying to get off and at a time when "If the operators of the train know of the neither the conductor nor any of the train actual presence of such trespassers, for such

they are, they are required by the humaneness crew knew he was on the train.

of the law to not injure them if with the means Looking at it in this light, although the at their command they can avoid doing so. Nor company might have been liable if Webb will the inconvenience and annoyance entailed

be counted. The courts have never gone furhad been hurt between the station and the

ther than that. The Legislature may, but it water tank, on account of the habit of the has not. Any other rule, particularly the one boys in riding from the station to the water contended for by appellant, would require practank, when the train left the tank after tically that such railroads should police all

their lines and vehicles in such cities and towns stopping there to take water and started on in anticipation of the dangers to thoughtless and its journey, Webb when hurt was not on heedless persons.

* All wlio venture the train by the invitation or permission of unbidden by the company and unknown to it, the conductor, because the permission of the upon its trains, do so at their own peril, as

they can have no right, and the company thereconductor to ride ended when the train reach- fore owes them no duty, in such case. This ed the water tank; and so when the train rule also applies from the very necessity of the started the conductor was under no duty to matter, without respect to the age or condition look after the safety of the boys, as he was the question first of legal duty, not compassion

of the trespasser, for the court must deal with not required to anticipate that they would lable innocence.”

It will be observed that in that case there for infants than it is to keep them safe for was no evidence, as there is in this, to show adults, unless and until by its course of conthat the conductor habitually or at all per- duct it has established a status for children mitted and encouraged boys to board the that imposes upon it more care than it would cars, and this, it may be remarked, is the owe to adults or than it would owe to chilonly feature of the case we have on which dren except for its course of conduct. And the liability of the company can be put, aside so if a different standard of duty and care from the liability arising to protect Noble is exacted in respect to children from that after his peril was discovered and which will which is exacted in the case of adults, it is be later discussed. For, although it might only because the railroad company by its have been the habitual practice of Noble dealings with the children has induced them and other boys about Grays to jump on and to believe that they might safely go and be ride on moving trains without being invited where they do go, and has put before them or permitted, tacitly or otherwise, to do so, and within their easy reach things that are the company would not be liable if any of inviting and attractive to childish fancy, them got hurt while so trespassing, unless and which they have not sufficient discretion his place of danger on the train was actually and understanding to appreciate the danger discovered in time to prevent injury to him of meddling about or coming in contact with. by the exercise of ordinary care. But when, [4] It might also here be observed, that a as in this case, there is evidence to show that railroad company has, in section 805 of the boys of immature age and discretion are Kentucky Statutes, making it an offense for habitually permitted by the conductor to any person except passengers and employés jump on and ride on moving trains, then to get on a moving train, an efficient means the company voluntarily assumes the duty preventing trespassing on its trains and cars, of anticipating that they will do what he has although this statute did not interpose a bar permitted and consented that they might do, to a recovery by Noble, on account of his age and the further duty of exercising ordinary and the circumstances attending his injury. care to look out for and protect them from [5] In addition to what has been said, injury.

there remains the disputed question as to [2] Accordingly we think that the evidence whether the conductor, when and before he as to the habitual and continued custom of started the train, discovered the presence of boys jumping on and riding on and jumping Noble riding on or hanging on the step of off this coal train, and as to the habitual and the coal car, and if he did, what was his continued practice of the conductor in per- duty under the circumstances. This issue we mitting them to do so, was competent, and will consider and dispose of as if Noble was put upon the company the duty at the time a trespasser pure and simple, and as if he Noble was injured of anticipating that Noble had not been invited or encouraged to get on and the other boys would do on that occa- the step or on the car by the previous consion what they had been in the habit of do- duct of the conductor. Upon this issue there ing, and the duty of exercising ordinary care was sharp dispute. According to the evito discover their presence on and about the dence of the conductor, which is corroboratcars, and the duty of exercising ordinary ed by another witness, he did not and could care to prevent injury to them when their not have seen Noble on the step of the coal presence was, or could by the exercise of or car at or before he signaled for the train dinary care have been discovered. And to start; while, according to the evidence of these issues, under the facts of this case, Noble, which was also corroborated by othwere for the jury under proper instructions. er testimony, Noble was in plain view of

It may be asked, What is the company to the conductor when he signaled the train do under circumstances like this to relieve to start, and in such a position as that he itself from liability for accidents that may i could not have avoided seeing him. So that happen to boys who make a practice of jump- it was a question for the jury. ing on its trains? The answer to this is that [6] Looking at the matter as if Noble was the railroad company will not be responsible an ordinary trespasser, the only duty the for injuries to boys who jump on its trains, conductor owed him was to exercise ordinary unless the train crew permit or encourage care to prevent injury to him after his peril them to do so, or unless after they have been was actually discovered by the conductor, actually discovered in a place of peril the and if the conductor saw Noble hanging on company fails to exercise ordinary care to the step of this coal car before and at the prevent injury to them. In other words, time he signaled the train to start, it canwhen the railroad company, through its serv- not be denied that he must have known that ants in charge of the train, does not encour- Noble was occupying a place of extreme danage or invite or permit boys to ride on its ger for a boy of his age, and his duty under trains, those who get on will be treated as these circumstances was not to start the trespassers and the company only held to the train until Noble had been removed from duty that it owes to ordinary trespassers. this place of danger. This was the only

[3] A railroad company is no more bound thing open for the conductor to do in the to keep its tracks, cars, and premises safe exercise of ordinary care, and this, assuming

201 S.W.-4

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that he saw Noble before the train started, good judgment and common sense of all he could easily have done.

right-thinking people. [7] Another issue in the case relates to And so the mere statement of a boy of 8 the subject of contributory negligence, On that he knows a thing is dangerous, or knows behalf of the railroad company it is insist it will hurt him, or knows he will be crippled ed that because the evidence of Noble shows or killed if he does it, is not to be given the that he knew it was dangerous to get on or meaning it would have if spoken by a mature off of a moving train, and had been warned mind. Knowledge in cases where contribumany times not to do so, as well as whipped tory negligence is in issue, as well as in for doing it, there should have been a di- many others, implies age, capacity, and exrected verdict in favor of the company, upon perience sufficient to appreciate and comprethe ground that the contributory negligence hend the full meaning and effect of what one of Noble was sufficient to defeat a recovery does and the consequences that will follow. in his behalf. If Noble had been a man, or It is this degree of capacity that the law pre a boy of mature years, it might well have sumes men and boys of mature years to posbeen ruled as a matter of law that he vol- sess, and accordingly it holds them accountuntarily and understandingly assumed the able for their acts; but when it comes to risk of being hurt when he took this dan- measuring and judging the accountability of gerous position, and that he should be charg- children of immature age, it has always been ed with such contributory negligence as the policy of this court to leave its determinawould bar a recovery. But Noble's negli- tion to a jury as a question of fact about gence in attempting to ride in this dangerous which there may be reasonable difference of place, or in attempting to get on in this dan- opinion. gerous place, should not, on account of his Out of many cases from this court fully age, conclusively bar his right of recovery, supporting this conclusion, we may refer to although he was a bright, intelligent boy; the following, in which it was held that when had lived near the railroad all of his life, the child is between 6 and 12, the question of and was as familiar with the operation and his contributory negligence is for the jury, movement of trains as any boy of his years although it may appear that he was warned and discretion could well be, and knew, as of the danger of doing what he was doing he testified, that it was dangerous to jump when injured : City of Owensboro v. York's on moving trains, and had been warned not Adm'r, 117 Ky. 294, 77 S. W. 1130, 25 Ky. to go about them, and had been whipped for Law Rep. 1397, 1439; Davis' Adm'r v. Ohio doing so. He doubtless knew that if he fell Valley Banking & Trust Co., 127 Ky. 800, under the train it would kill him or cut his 106 S. W. 843, 32 Ky. Law Rep. 627, 15 L. R. legs off. But nearly any boy of his age will A. (N. S.) 402; United States Natural Gas say, if asked, that he knows if he falls in Co. v. Hicks, 134 Ky. 12, 119 S. W. 166, 23 the river he may get drowned, or if he falls L. R. A. (N. S.) 249, 135 Am. St. Rep. 407; in the fire he will get burned, or if he gets Standard Oil Co. v. Marlow, 150 Ky. 647, in the way of a street car or an automobile 150 S. W. 832; Trent v. Norfolk & Western he may be killed, or if he plays with a load- Ry. Co., 167 Ky. 319, 180 S. W. 792; Macon v. ed pistol he may shoot himself. But mere Paducah St. Ry. Co., 110 Ky. 680, 62 S. W. boyish knowledge of everyday things like 496, 23 Ky. Law Rep. 46; Merschel v. L. & N. these about which children learn almost as R. R. Co., 121 Ky. 620, 85 S. W. 710, 27 Ky. soon as they are old enough to walk does Law Rep. 465. not necessarily imply that they appreciate or [8] The further argument is made in behalf understand the necessity for keeping away of the railroad company that it should not from or not doing these things.

be held responsible for the acts of the Boys will light powder with matches; they conductor in inviting, permitting, or encouragwill fire off dynamite caps with hammers; ing' Noble or other boys to get on or ride on they will handle with reckless and thought the train, although he may have done so, less indifference loaded pistols; they will because the rules of the company introduced skate on ice so thin that it will scarcely hold in evidence showed that the conductor was them up; they will hang on trains, street prohibited from permitting any person to ride cars, and automobiles; climb electric wire on his train without a pass or permit from poles, play with live wires, and take innumer- higher authority; therefore it is said that if able and perilous risks in a variety of ways he acted in respect to these boys in the manof being crippled or killed that an adult or a ner testified to by the witnesses, he was actboy of mature years would not dare take. ing entirely outside the scope of his employThey act on impulse, and the greater the dan- ment, and the company was not liable for the ger the greater the fun to them. They do consequences of his acts. dangerous things without giving a moment's We cannot agree with this view of the law thought to the consequences that may follow as applicable to the case. The conductor what they do, and to hold as a matter of law was in charge of this train, and Noble and boys of 8 years old, whether good or bad, the other boys who were, as some of the bright or dull, to the high standards demand- witnesses said, encouraged and permitted by ed of men in looking after their own and the him to ride on it were too young to inquire safety of others, would be opposed to the into, or take notice of, or appreciate, or un

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