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upon the track, and imposes upon the company a higher degreo of care to avoid injuring him.”
How and when does this higher degree of care arise? In case of an adult, or one of age having judgment and discre tion, who is a trespasser and is seen standing or walking on the track, the train operator in the first instance would have to do no more than give such a trespasser warning. When this has been done, the operator may assume that the trespasser will leave the track. Not so with a child of tender years. When such a child is discovered on the track, the train operator may not assume that it will leave the track, but he must at once act upon the assumption that the child will remain, and, to prevent injury, he must slow down or stop the train before reaching the child, if this can be done without serious danger to the passengers on the train.
The rule is likewise stated in 3 Elliott on Railroads, section 1260, p. 619, where the author says: “So it has been held in many cases that the railroad company is not obliged to keep a lookout for trespassing children upon its track, in ordinary circumstances, or move its cars with reference to them until their presence in danger is discovered.”
The particular circumstances under which a lookout may be required we will refer to later.
Railway Co. v. Williams, 69 Miss. 631, 12 South, 957, in some of its features, closely resembles the case at bar. In speaking of the duty of railway companies with respect to trespassers upon the track, the court, at page 640 of 69 Miss., at page 957 of 12 South., states the rule in the following language:
"The action of the court below, on the instructions for the respective parties, constrained the jury to hold the defendant com. pany liable for a failure of the engineer to check or stop his train when he first saw an object, which he then thought to be something other than a human being, but which, at length, was discovered to be a child. The test of responsibility is, did the striking of the child by the train occur after the engineer had seen not might or ought to have seen—that is, discerned, or distinguished the girl? Until the girl had been seen-discerned to be a human being—the engineer was under no obligation to the trespasser to check or stop his train, whatever may have been his obligation to the passengers who were being hauled by him. When the engineer is made aware of the presence and peril of the trespasser by seeing him, he will willfully or wantonly do him hurt at the peril of his employer; but, until made aware of the presence and peril of the trespasser, there can be no willful negligence or wanton misconduct toward the unrecognized, undiscerned trespasser."
In the case of Felton v. Aubrey, 74 Fed. 350, 20 C. C. A. 436, the rule is stated in the syllabus as follows:
"A railway company owes no higher duty to an infant tres. passer upon its tracks than to an adult, and is not liable for in. juries suffered by such a trespasser, unless, after the discovery of his presence on the track, it has failed to use ordinary care to avoid injuring him."
The opinion is written by Mr. Justice Lurton, United States Circuit Judge, and thoroughly sustains the rule stated in the above quotation. In the course of the opinion, at page 356 of 74 Fed., at page 441 of 20 C. C. A., it is further said:
"The law imposes no duty in respect to trespassers upon its (the railroad company's) track, 'excepting that general duty which any one owes to any other person to do him no intentional wrong or injury. Its (the railroad company's) liability to discharge this duty could only arise when it becomes aware of the danger in which he stood.' The overwhelming weight of authority is in accord with this rule."
We shall have occasion to refer to this case again on another point.
In the case of Thomas v. C. M. & St. P. Ry. Co., 93 Iowa 248, 61 N. W. 967, the rule is stated in the syllabus as follows: “A railroad company need not look out for trespassers. It owes him no duty except to avoid injuring him after he is actually seen. These rules apply to children incapable of contributory negligence.” In that case the rule and reasons upon which it rests are thoroughly discussed, and the court clearly points out that some of the courts have departed from the rule by reason that they have confounded the duty owing to infant trespassers with the question of their contributory negligence.
In Nolan v. N. Y., N. H. & H. Ry. Co., 53 Conn., in speaking of the duty owing to trespassers on the track, the court, at page 474 (4 Atl., at page 110), states the rule as follows:
"We do not think that the tender age of one of these plaintiffs could have the effect to raise a duty where none otherwise existed. The supposed duties have regard to the public at large, and cannot well exist as to one portion of the public and not to another under the same circumstances. In this respect, children, women, and men are upon the same footing. In cases where certain duties exist. infants may require greater care than adults, or a different kind of care: the precautionary measures having for their object the protection of the public must, as a rule, have reference to all classes alike."
It is manifest that, while a child may not be chargeable with contributory negligence, he may, nevertheless, be in a situation where he is a trespasser, and not entitled to a greater degree of vigilance to discover his presence than any one else would be. To establish any other rule would simply result in requiring the railroad company to keep a lookout always and everywhere for trespassers, and the presumption of a clear track would be entirely ignored.
The following cases all hold that there is no duty cast upon the railroad company to keep a lookout for trespassers, whether young or old. Burg v. C., R. I. & P. Ry., 90 Iowa 106, 57 N. W. 680, 48 Am. St. Rep. 419; Masser v. C., R. I. & P. Ry., 68 Iowa 602, 27 N. W. 776; Chrystal v. Troy & B. Ry. Co., 105 N. Y. 164, 11 N. E. 380; Ilard v. S. P. Ry. Co., 25 Or. 433, 36 Pac. 166, 23 L. R. A. 715; Toomey v. S. P. Ry. Co., 86 Cal. 374, 24 Pac. 1074, 10 L. R. A. 139; Woodruff v. N. P. Ry. (C. C.), 47 Fed. 689; Morrissey u. E. P. Ry., 126 Mass. 377, 30 Am. Rep. 686; Wright v. B. & A. Ry., 142 Mass. 296, 7 N. E. 866; Scheffler v. Minn. & St. L. Ry., 32 Minn. 518, 21 N. W. 711; McDermott v. Ky. C. Ry. Co., 93 Ky. 408, 20 S. W. 380; Ry. Co. v. Williams, 69 Miss. 631, 12 South. 957; I’illiams v. Kas. City S. & M. Ry., 96 Mo. 275, 9 S. W. 573; Givens v. Ky. C. Ry. Co., 15 S. W. 1057, 12 Ky. Law Rep. 950; Thomas v. C., M. & St. P. Ry., 93 Iowa 248, 61 N. W. 967; I. C. Ry. Co. v. O'Connor, 189 Ill. 559, 59 N. E. 1098; Ala. G. S. Ry. v. Voore, 116 Ala. 642, 22 South. 900; B. &0. Ry. Co. v. Bradford, 20 Ind. App. 348, 49 X. E. 388, 67 Am. St. Rep. 252; Ilansen v. S. P. Ry., 105 Cal. 379, 38 Pac. 957; C., C., C. & St. L. Ry. v. Tartt, 64 Fed. 823, 12 C. C. A. 618; Trudell v. G. T. Ry., 126 Mich. 73, 85 N. W. 250, 53 L. R. A. 271; Nolan v. N. Y., N. H. « H. Ry., 53 Conn. 461, 4 Atl. 106.
The foregoing cases all involve trespasses by infants or children ranging in ages from eighteen months to ten or
The following cases, while they involve trespassing adults, state the rule as the same is held to be in the foregoing cases: Baltimore, etc., Ry. Co. v. State, 62 Md. 479, 50 Am. Rep. 233; Spicer v. Chesapeake & Q. R. Co., 34 W. Va. 514, 12 S. E: 553, 11 L. R. A. 385; Ry. Co. v. Graham, 95 Ind. 286, 48 Am. Rep. 719; State v. B. &0. Ry., 69 Md. 494, 16 Atl. 210, 9 Am. St. Rep. 136; Anderson v. C., St. P. & M. Ry., 87 Wis. 195, 58 N. W. 79, 23 L. R. A. 203; I. C. Ry. Co. v. Johnson, 97 S. W. 745, 30 Ky. Law Rep. 142; 1. C. Ry. v. Eicher, 202 Ill. 556, 67 X. E. 376; C., C., C. & St. L. Ry. Co. v. Cline, 111 Ill. App. 416.
The foregoing cases, whether involving trespassing children or adults, or even licensees, seem to apply the rule strictly whether the trespass was committed in town or country, or in railroad yards, or elsewhere.
The following cases announce what, for want of a better term, may be called an intermediate rule as applicable to trespassers or licensees: Ala. G. S. Ry. Co. v. Guest, 144 Ala. 373, 39 South. 654; So. Pac. Ry. Co. v. Chat man, 124 Ga. 1026, 53 S. E. 692, 6 L. R. A. (X. S.) 283; Louisrille & V. Ry. Co. 1. Daniel (Kv.), 91 S. W. 691, 3 L. R. A. (V. S.) 1190; Green v. C. & W. M. Ry. Co., 110 Mich. 648, 68 N. 11. 988; Clark v. 1. C. Ry. Co., 113 Mich. 24, 71 N. W. 327, 67 Am. St. Rep. 412; Bouwmeester v. G. R. & I. Ry., 67 Mich. 87, 31 N. W. 414; Smalley v. Southern Ry. Co., 57 S. C. 243, 35 S. E. 489; Fearons v. K. C. El. Ry. Co., 180 Mo. 208, 79 S. W. 394; Chesapeake Ry. Co. v. Rogers, 100 Va. 324, 41 S. E. 732; I. C. Ry. Co. v. Murphy, 123 Ky. 787, 97 S. W. 729, 11 L. R. A. (N. S.) 352; Johnson v. Lake Superior Tr. & T. Co., 86 Wis. 64, 56 N. W. 161; Johnson v. Louisville & N. Ry. Co., 122 Ky. 487, 91 S.W. 707; Davis v. Chicago & N. W. Ry., 58 Wis. 646, 17 N. W. 406, 46 Am. Rep. 667; Cassida v. Ore, Ry. & N. Co., 14 Or. 551, 13 Pac. 438; Felton v. Aubrey, 74 Fed. 350, 20 C. C. A. 436; Atchison, T. & S. F. Ry. v. Smith, 28 Kan. 541; Givens v. Ky. Cent. Ry. Co., 15 S. W. 1057, 12 Ky. Law Rep. 950; Young v. Clark, 16 Utah 42, 50 Pac. 832 ; Hyde v. U. P. Ry., 7 Utah 356, 26 Pac. 979.
In these cases it is held that if the accident occurs at a place where the company has permitted the public the free use of the tracks to pass along or over, and this use is open and continued for a long period of time and by a large or considerable number of people, or where the railroad runs through thickly populated portions of a city, town, or village where people frequently go upon or pass over the tracks for such a length of time that the employees of the railroad company may be charged with notice, or when such notice is directly given them, then in all such cases, although the injured person be a trespasser, still the railroad company, having reason to expect that some one may be on or near the track, must act accordingly, and keep a lookout and give timely warning in order to prevent a collision, and a failure to exercise ordinary care in keeping a lookout and in giving warning may be negligence for which even a trespasser is entitled to recover, provided he is not guilty of contributory negligence which is the proximate cause of the injury. In cases of adults being at such place, the employees of a railroad company are not required to either check the speed of the train or to stop it as soon as they discover the intruder. All that is required of them in the first instance is to give timely warning of the approach of the train. On giving such warning they have the right to assume that the intruder will leave the track. of children or infants, however, they may not indulge such a presumption, but must at once arrest the speed of the train as soon as they discover the children, or, by the exercise of ordi