tant. The evidence tends to show that at the time of the accident, including adults and children, there were living in the territory aforesaid about forty people. Northeasterly from respondent's home, and about three or four hundred fect therefrom, there was a road crossing over the railroad track, put there for the convenience of the people aforesaid and perhaps some others living at a greater distance. Until November, 1903, this crossing was closed in by gates put in the fence on either side of the railroad, but at that time, at the request of those living in the vicinity, it was made an open crossing by the appellant. Topaz was a mere siding on appellant's line of railroad where there was no station house or other buildings, and was a place at which one passenger train going each way, would stop daily, provided it was flagged, to take on passengers. It would also stop to discharge passengers who desired to get off there. The train which caused the accident was a fast passenger train, and did not stop at Topaz, on flag or otherwise. The people living in the vicinity would at times walk on the railroad track in going to or coming from Topaz siding. This, as one of the witnesses for respondent put it, was because the track afforded better walking than the wagon road alongside of the track, and some one would walk on the track in that way "about once or twice a week." The wagon crossing was used by the people to drive over, to drive their cattle and sheep across the track, and two of respondent's neighbors who lived on the north side of the track would occasionally pass over the crossing to go to the post office, which was several miles distant from respondent's house and in a southeasterly direction therefrom. At this post office there was also a store, where respondent and his family and neighbors obtained their ordinary supplies. All but the two living on the north side of the track could go to the post office without crossing the track. For about thirty days immediately preceding the accident, some of the children of one of the neighbors of respondent herded a small number of sheep on the north side of the track and in the vicinity of the crossing, and, in doing so, would sometimes go onto the

right of way because it was drier. The right of way was fenced in by a four-wire post fence on both sides of the track, but some children during the thirty days aforesaid would sometimes go inside the right of way fences. The engineer, who was called as a witness in behalf of respondent, however, testified that he never saw any children on the right of way, never saw them herd any sheep, but that once or twice he did see some children placing some clothes on a fence which was near the crossing. The roadmaster of appellant also testified that he passed over the track frequently, but never saw any children on or near the track. The section foreman, who, for a long time before the accident, passed over the track three or four times a week, also testified that he saw respondent's children only once about four days before the accident walking on the track. There was other evidence by one or two of respondent's witnesses that the children sometimes played and walked on the track during the thirty days immediately preceding the accident while they were herding sheep as above stated. Otherwise there is no definite time fixed when any one walked on the track, or for what length of time it had continued, if at all, except the general statement that people during some length of time immediately preceding the accident walked on the track for the purposes above stated. On the afternoon of April 18, 1904, at about 1:30 o'clock, respondent's child, in some way not disclosed by the evidence, got on the track immediately north of respondent's house, and about two hundred and forty feet west of the crossing. At about that time the daily fast passenger was due from the west, and was approaching the crossing at the rate of about thirty-five or forty miles an hour. The train was a few minutes late in passing Topaz siding. The engineer gave the signal for the crossing some distance west thereof. He testified that he was looking ahead and saw the track ahead of him. When he was about two hundred yards west of the crossing he noticed some object along the south rail on the track west of the crossing, but did not know what it was. He says: "I had an idea that it was old clothes or some weeds blown

on the track or up alongside of the track. It was above the gravel or ballast on the track." He further said that he did not recognize it as a living being or a child until it raised its head, at which time the engine was within sixty feet of it, and he then discovered it was a child. He immediately shut off steam and put on the emergency brake, and did all he could to stop the train, but could not stop it, and the pilot of the engine struck the child and knocked it off the track and killed it. When the train came to a full stop the rear end of the last car had passed two hundred and seventyfive or three hundred feet beyond the point where the child was struck, or to a point just east of the crossing. The day was clear and bright, and the track was practically straight for some distance west of the crossing, there being what is called a two-degree curve to the right in going east. The accident occurred in a cut of from two to four feet in depth. The track was ballasted with gravel of brownish color, which was even with the top of the ties. For some distance to the west and at the point of the accident the train was moving on an upgrade of .72 of one per cent. The child was dressed in what is called a "faded gingham gown,' which, respondent said, was drab in color. There were no other persons near the child, nor any animals of any kind at or near the track or crossing at the time of the accident and as the train was approaching the crossing from the west. Respondent and some of his witnesses testified to some experimental tests they made about a year after the accident by placing a child of about the age of the deceased upon the track at the point where the accident occurred, and going to the west along the track to determine how far such a child could be seen and recognized. They testified that they could see that the object on the track was a child at eight hundred feet distant, and could recognize the child at five hundred feet, and could see that there was some object on the track at one thousand three hundred feet from the point of the accident. The child experimented with was dressed in different colored clothes than was the child that was struck, and was placed in a sitting position on the track. The

respondent, however, testified that he tied a string around the clothes the deceased child wore at the time of the accident, and placed the bundle alongside of the south rail where the engineer said he saw the child, and that by going eight hundred feet west he could see the clothes on the track. The evidence with regard to the distance within which a train of five coaches like the one in question, going at the rate of speed it did, could be stopped, is conflicting. The train in question moved about seven hundred and twentyfive feet after the engineer first discovered the object on the track, and about three hundred and fifty or four hundred feet after he discovered it was a child before it was stopped, and he says it could not have been stopped in any shorter distance; while another witness, who, at one time, was a locomotive engineer, testified that such train, under the circumstances disclosed by the evidence, could have been stopped in about the distance of one hundred yards.

The court overruled a motion for nonsuit, and refused to direct a verdict for appellant, but submitted the case to the jury. Upon a verdict in favor of respondent judgment was duly entered, from which this appeal is prosecuted.

The theory upon which the trial court submitted the case to the jury is shown by instruction numbered 11, which is as follows: "The court instructs you that it is the duty of the defendant company, through its proper employees, to exercise ordinary care and diligence to prevent injury to a child of tender years who they know, or, by the exercise of reasonable and ordinary care, should know, is in a situation of danger on its track, even though that child may be a trespasser; and failure on the part of the railroad to use that degree of care in discovering the presence of a child of tender years upon its track, and preventing injury to the same, would be negligence upon the part of the railroad company. In determining this case, whether or not the defendant used that degree of care, you should take into consideration all the circumstances as they are disclosed by the evidence, and the probability or improbability of a child trespassing at the time of the injury. The court further charges you that, as

against a trespasser old enough to realize the danger attendant upon trespassing upon a railroad track, the railroad company owes no duty of keeping any lookout to discover such a trespasser upon its private right of way, and this you may take into consideration in determining what would be reasonable and ordinary care on the part of an engineer in watching for trespassing children upon the track." The appellant excepted to this instruction, and especially to the first sentence thereof, and now assigns the giving of it as

error.

The theory of the court, and upon which the case was tried, is perhaps best stated in his own language in a ruling made by him during the trial, as appears from the bill of exceptions, where he said: "The duty of the railroad company and the engineer to keep a lookout was only for helpless children-children of tender years." The instruction complained of fairly reflects this theory. As appears from the latter part of the instruction, the trial court recognized the fact that the deceased child was a trespasser. He assumed, however, that, in view of the fact that the child was but two years of age and therefore without judgment or discretionpractically helpless-there was a duty cast upon the appellant to exercise greater vigilance to discover the child on the track than would have been required of it in case of an adult or one old enough to exercise judgment and discretion for his own safety. Is this the law?

Leaving out of consideration for the moment the question of contributory negligence and the duty devolving upon the operators of trains, in case a child or helpless human being is actually seen upon the track, the law with regard to vigilance to discover mere trespassers logically must be the same whether the trespasser be a child or an adult. This, we think, is held to be so by the great weight of authority. In 23 Am. & Eng. Enc. Law (2d Ed.), at page 736, the rule is tersely stated in the following language: "The fact that a person is an infant does not affect the relation of trespasser, but is material upon the question of his negligence in being