yard, to exercise care to avoid injuring them, it must rest on some principle other than that based on the doctrine of the "turntable" cases.

It is urged that the defendant owed such duty because of the frequency of the presence of children about the yard, and on the further claim that the employees ought to have anticipated that the plaintiff and his companion might return, and therefore the employees were required to ascertain if they were about the yard before moving and switching the car upon which the plaintiff attempted to ride, and that in switching cars about the yard an employee ought to have been stationed on the car as it was propelled along the track to observe a lookout for children, to warn them of its approach, and to prevent them from getting on it. Upon these questions. the appellant contends that he was entitled to have the judg ment of the jury. Before it can be urged that the employees were required to observe a lookout and to operate and manage the cars about the yard with reference to the plaintiff's presence, it must first be made to appear that they owed a duty in the premises to use care. That is, before negligence can be predicated on a failure to observe a reasonable lookout or in the manner in which the cars were operated or managed about the yard, it must be held that a duty to use care in such particular was owing from the defendant to the plaintiff. For every case of actionable negligence involves a duty to use care and a breach of such duty resulting in injury. Whether in a given case a duty to use care was imposed on a party charged with negligence is ordinarily a question of law. A railroad company, as matter of law, owes a duty to those who are rightfully about its premises, or who are there with its express or implied permission or invitation, to use care. It ordinarily owes no such duty to one who is wrongfully about its premises. The employees of the defendant were under no duty to use care in the handling of the cars about the yard in anticipation of wholly unauthorized intrusions of others. As to such persons, no duty to use care arose until their presence was discovered. The evidence does not warrant a finding that the public or the people of the neigh

borhood had generally or habitually traversed the yard, or that it was otherwise traversed or used by them under circumstances which would justify a finding that the defendant had invited or permitted or acquiesced in such use being made of its premises. Where the public or the people of a neighborhood, though technically unauthorized, have for a considerable length of time generally or habitually traversed railroad premises without objection, there is much reason for holding that the employees of the railroad company are required to take notice of such fact and to regulate their conduct accordingly. But the evidence does not show that kind of a case, or any case, where the unauthorized or uninvited presence of any one was acquiesced in or permitted without objection. The evidence does show that children frequently visited the yard, but each time they were not only ordered out, but were made to leave. In no sense were the visits permitted or acquiesced in by the defendant or its employees. To the contrary, they were expressly forbidden by them. The case is one, therefore, where no duty was owing on the part of the defendant's employees to exercise care in the handling of the cars about the yard until the plaintiff was discovered. There is much reason for holding that, when a child of tender years or of immature judgment, although a trespasser, is discovered or seen about the premises, it may not be regarded in the same situation as that of an adult or conscious trespasser where no duty is owing except to refrain from inflicting a willful injury or an injury by gross negligence. An adult or conscious trespasser may be expected to take care of himself and keep out of danger, and the employees about the premises may regulate their conduct upon the assumption that he will do so, until a situation is disclosed making it apparent that he is not aware of the peril or danger threatening him. But when a child of tender years or of immature judgment, although a trespasser, is discovered about the premises, the employees may not, as in the case of an adult, act upon the assumption that it will take care of itself and keep out of danger, but a further duty is imposed upon the employees

to exercise care commensurate with the situation to avoid injuring it.

In this case the presence of the plaintiff and his companion, on their first visit to the yard, was discovered by the defendant's employees. Instead of remaining passive and inactive, the employees took sufficient affirmative action in the premises to cause the removal of the children. In obedience to the direction given them they left the yard and entered upon adjoining premises, and disappeared from the sight of the employees. The employees gave the matter sufficient attention to satisfy themselves that the children had left the premises, and that they were no longer in danger. Up to this point it is not contended that the defendant's employees did not do all that due care required. Thereafter they directed their attention to their work, and continued switching and moving cars about the yard. In a few minutes the children, without the observation of the employees, again entered the yard and stood between the fence and the track several lots to the east of the place where they had left the premises, and there watched the car slowly approaching them. When it reached them, they, without the knowledge of the defendant's employees, took hold of it and attempted to get on it. To now hold with appellant's contention that the employees ought to have anticipated that the children might return, and that they were required to observe a lookout for them before moving and switching the car from jone track to another, or to accompany it so as to warn the children away or prevent them from getting on it, requires not only a holding that the employees were in duty bound to use care to discover the presence of trespassing children, and of wholly unauthorized intrusions of others, to the same extent as to discover the presence of persons and children. who may, with knowledge on the part of the employees, be rightfully about the premises, but also requires a holding that the employees were required to use care to prevent trespassing children from injuring themselves in the defendant's yard. Upon the undisputed facts in the case the law does not warrant such a holding. Though it should be held that the

employees, in the switching and moving of cars about the yard, owed a duty in the premises to use care in such operations, the evidence is insufficient to justify a finding that such operations were conducted in a negligent manner, or that the act of moving the car along the track was the proximate cause of the injury. So far as made to appear, the car was switched in the usual and ordinary way from one track, and moved along another, at a speed of from three to four miles an hour. The children were not struck by the car. It was not the manner in which the car was operated that caused it to collide with plaintiff, or that caused the plaintiff coming in contact with it. The direct cause of his coming in contact with the car was his taking hold of the car and attempting to ride on it without the knowledge or consent of the defendant's employees. While the child, because of its age, cannot be regarded a conscious trespasser, nor held chargeable of contributory negligence, nevertheless the consequences of its acts cannot be charged to the defendant. The conduct of the child was in no sense influenced or induced by any act or conduct on the part of the defendant or its employees, nor was the injury occasioned because of any negligence on their part. We are of the opinion that the court was justified in directing a verdict in favor of the defendant.

The judgment of the court below is therefore affirmed, with

costs.

MCCARTY, C. J., and FRICK, J., concur.

COLE BANKING CO. v. SINCLAIR et al.

No. 1915. Decided November 19, 1908 (98 Pac. 411).

1. BILLS AND NOTES-ACTIONS-BURDEN OF PROOF-HOLDING IN DUE COURSE. Comp. Laws, 1907, sec. 1611, provides every holder of a negotiable instrument is prima facie a holder in due course; but, when the title of any one negotiating the instrument is shown to be defective, the burden is on the holder to prove title acquired in due course. Section 1607 makes the title of one negotiating the instrument defective when he obtained it by fraud, etc., or other unlawful means. By section 1609 a holder in due course holds the instrument free from any defect of title of prior parties and free from defenses available between the parties themselves, and may recover the full amount of the instrument from all parties liable thereon, and by section 1576 it is presumed that every negotiable instrument was issued for a valuable consideration. Held, that a partial failure of consideration as between the parties to a negotiable note was not a defect in title, so as to require an indorsee suing thereon to show himself a holder in due course; the burden of showing want of consideration and notice thereof by the indorsee being upon the maker.

There

2. BILLS AND NOTES-ACTIONS-RIGHT OF ACTION-GROUNDS. being no evidence that the indorsee had notice of a failure of consideration between the parties, he was entitled, under the statutes, to recover on the instrument as a holder in due course without notice.

3. APPEAL AND ERROR-REVIEW-QUESTIONS CONSIDERED QUESTIONS UNNECESSARY TO DECISION. Where, in an action by the indorsee of a note against the maker, the statutory presumption that plaintiff was a holder in due course, being unrebutted, was alone sufficient to warrant a finding that he was such holder, the competency of other evidence offered by him to show a holding in due course need not be determined on defendant's appeal.

APPEAL from District Court, Third District; T. D. Lewis, Judge.

Action by the Cole Banking Company against C. G. Sinclair and another. From a judgment for plaintiff, one of defendants appealed.