Co. v. Goldsmith, 47 Ind. 43; Louisville etc. R. R. Co. v. Howard, 82 Ky. 212; Button v. Hudson River R. R. Co., 18 N.Y. 248; Nicholson v. E. R'y Co., 41 N. Y. 525; Larmore v. Crown Point Iron Co., 101 N. Y. 391; 54 Am. Rep. 718; Morrissey v. Eastern R. R. Co., 126 Mass. 377; 30 Am. Rep. 686; Philadelphia etc. R. R. Co. v. Hummell, 44 Pa. St. 375; Baltimore etc. R. R. Co. v. Schwindling, 101 Pa. St. 258; 47 Am. Rep. 706; Wharton on Negligence, secs. 388 a, 804; Pierce on Railroads, 330; Shearman and Redfield on Negligence, secs. 25, 36, 491; 1 Thompson on Negligence, 449.) The fact that defendant was required by express statutory regulation to blow its whistle or ring its bell for a certain distance before reaching a highway crossing has nothing to do with this case. The accident occurred 150 yards beyond the crossing, and it is not found that the omission complained of in any way caused the injury. But plaintiff is not in a position to complain of that omission. His negligence proximately contributed to the injury, and the statute referred to does not abrogate the doctrine of contributory negligence. (Meeks v. Southern Pac. R. R. Co., 52 Cal. 602; Glascock v. Central Pac. R. R. Co., 73 Cal. 137.) Moreover, this statute was not intended for the benefit of trespassers on the track, and imposes on the company no duty with regard to them. (Holmes v. R. R. Co., 37 Ga. 593; Bell v. R. R. Co., 72 Mo. 50, 58; Elwood v. R. R. Co., 4 Hun, 808; Philadelphia etc. R. R. Co. v. Spearen, 47 Pa. St. 300; 86 Am. Dec. 544; O'Donnell v. R. R. Co., 6 R. I. 211; Harty v. R. R. Co., 42 N. Y. 468.)

J. E. McElrath, for Respondent.

Even a wrong-doer is entitled to recover for injuries negligently inflicted upon him, unless his own negligence proximately contributed to the injury. (Redfield on Railways, 2d ed., sec. 150, pp. 330, 331; Robinson v. Cone, 22 Vt. 213; 54 Am. Dec. 67; Illidge v. Goodwin, 5 Car. & P. 191; Zemp v. Wilmington & M. R. R., 9 Rich.

84; 64 Am. Dec. 763; Needham v. S. F. & S. J. R. R. Co., 37 Cal. 409; R. R. Co. v. Jones, 95 U. S. 439; Twomley v. R. R. Co., 69 N. Y. 158; 25 Am. Rep. 162; Northern etc. R. R. Co. v. State, 29 Md. 420; 96 Am. Dec. 545; Kay v. R. R. Co., 65 Pa. St. 269; 3 Am. Rep. 628; 4 Field's Lawyers' Briefs, 592, and authorities cited; Davies v. Mann, 10 Mees. & W. 545; Lynch v. Nardin, 1 Ad. & E., N. S. 29; Huelsenkamp v. R. R. Co., 37 Mo. 537; 90 Am. Dec. 399; Macon & W. R. R. Co. v. Davis, 18 Ga. 679; Morrissey v. Wiggins Ferry Co., 43 Mo. 380; 97 Am. Dec. 402; 47 Mo. 521; Brown v. Hannibal & St. J. R. R. Co., 50 Mo. 461; 11 Am. Rep. 420; Harlan v. St. Louis etc. R'y Co., 65 Mo. 22; Hicks v. Pacific R. R., 64 Mo. 430; Vicksburg & Meridian R. R. Co. v. McGowan, 62 Miss. 683; 52 Am. Rep. 205; 3 Lawson's Rights, Remedies, and Practice, sec. 1192, and cases cited.)

HAYNE, C.-This was an action for damages for the death of the plaintiff's son, alleged to have been caused by the negligence of the defendant. The trial court, sitting without a jury, gave judgment for the plaintiff, and the defendant appeals upon the findings.

The facts found are as follows: The plaintiff's son, a lad of eighteen, was run over and killed while walking at night upon the defendant's track. About 150 yards to the south of the place of the accident was a public crossing, but it does not appear that the deceased had been at this crossing. He was going in an opposite direction, towards a neighboring town, which was more than a mile away. There was no path, road-way, or crossing at the place of the accident, or nearer thereto than the crossing mentioned, and it is expressly found that the deceased had no license to be where he was, and that it was not usual or customary for any one, except employees of the defendant, to be there. The train was an extra or special train. It was going in the same direction as the deceased, and had passed the crossing above referred

to.

The engine, though running in front of the cars, was in a reversed position, so that the tender was in front. There was no head-light or cow-catcher upon the tender, and the bell was not rung or the whistle blown on approaching the crossing, as required by section 486 of the Civil Code. None of the employees on the train saw the deceased until after he was hurt.

What is claimed to constitute negligence is the omission to have a head-light and cowcatcher, and the omission to cause the bell to be rung or the whistle to be blown at the crossing. The central position of the defense is, that the deceased was a trespasser upon the track, and it is very clear that he was such. The track was not a highway for pedestrians. The law holds a railroad company to a very high degree of responsibility for the safety of its passengers, and public convenience requires rapid transit. Such being the case, regard for the safety of the passengers, and common justice to the company, require that (except at crossings and similar places) the track should be kept clear. In some countries, this is regarded as of such importance that it is made a penal offense to trespass upon a railroad track; and even at crossings there are gates and gate-keepers to prevent people from crossing when trains are approaching. In this country, there are no such regulations. The matter is left to individual good sense and responsibility; but it is none the less of grave importance that the track should be kept clear. The law does not sanction its use as a path or sidewalk, and if people persist in using it as such, they must be held to be doing an act which is not lawful. This, which seems clear enough on principle, is fully sustained by authority. In Philadelphia etc. R. R. Co. v. Hummell, 44 Pa. St. 378, 84 Am. Dec. 457, the court, per Strong, J., said: "It is time it should be understood in this state that the use of a railroad track, cutting, or embankment is exclusive of the public everywhere, except where a way crosses it.

This has more than once been said, and it must be so held, not only for the protection of property, but, what is far more important, for the preservation of personal security, and even of life. In some other countries, it is a penal offense to go upon a railroad. With us, if not that, it is a civil wrong of an aggravated nature, for it endangers not only the trespasser, but all who are passing or transporting along the line. As long ago as 1852, it was said by Judge Gibson, with the concurrence of all the court, that 'a railway company is a purchaser, in consideration of public accommodation and convenience, of the exclusive possession of the ground paid for to the proprietors of it and of a license to use the highest attainable rate of speed with which neither the person nor property of another may interfere.'" Similar language was used in Mulherrin v. Railroad Co., 81 Pa. St. 375. In Baltimore etc. R. R. Co. v. State, 62 Md. 487, 50 Am. Rep. 233, the court, per Irving, J., said: "A right of way of a railroad company is the exclusive property of such company, upon which no un-, authorized person has the right to be, and any one who travels upon such right of way as a footway, and not for any business with the railroad, is a wrong-doer and a trespasser." In Palmer v. Railroad Co., 112 Ind. 253, the court, per Elliott, J., said: "Under the firmly settled rule, the deceased must be regarded as having been a trespasser on the track of the railroad company at the time of his death." (And see also Morrissey v. Railroad Co., 126 Mass. 380; 30 Am. Rep. 686; St. Louis etc. R. R. Co. v. Monday, 49 Ark. 262; Mason v. Railway Co., 27 Kan. 83; 41 Am. Rep. 405.) In all of these cases the person injured was trespassing upon the property of the company, and the proposition stated was directly involved.

The deceased having been a mere trespasser, the defendant did not owe him the duty of doing acts to facilitate his trespass, or to render it safe. It is to be observed

here that we are not saying that the fact that he was a trespasser would justify the infliction of a willful or wanton injury upon him. It is well settled that the commission of a trespass does not justify the infliction. of an injury by way of punishment or revenge, or out of mere recklessness. Nor are we saying that a railroad company is not bound to use ordinary care after seeing the dangerous position of a trespasser. No such principle is involved in this case. For it appears, not only that the employees on the train did not see the deceased until after the accident, but, by reason of the darkness, could not in all probability have done so. What we say is, that the company does not owe to a mere trespasser upon its track the duty of doing acts to facilitate his trespass, or render it safe. In other words, it is not bound to provide any particular kind of machinery or appliances for his benefit, or (when not aware of his presence) to give cautionary signals to notify him of the approach of its trains. And we do not put this upon the ground of contributory negligence, which would imply that the defendant, as well as the deceased, was guilty of negligence in a legal sense. We put it upon the ground that the defendant owed no duty to the deceased to do the acts whose omission is complained of. What was conceive to be the true rule was clearly stated by McKee, J., in Tennenbrock v. Railroad Co., 59 Cal. 269, in which the plaintiff was walking upon the defendant's trestle, and was injured while trying to escape from a train which had failed to whistle on approaching the trestle. The other justices of the department, however, "concurred in the judgment," on the ground of contributory negligence. In the subse quent case of Williams v. Railroad Co., 72 Cal. 120, the plaintiff was injured while lying drunk near the rails. It was conceded by his counsil that he was a trespasses, and that the company did not owe him the duty of looking out for him; and the court adopted this concession,