"The question then recurs, Did his age alter this rule? Undoubtedly children of 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 railroad. Thus the rule that a traveler about to cross a railroad track must be vigilant and look both ways does not apply to an infant of tender years. He knows nothing of care, diligence, or danger. The rule as to negligence upon his part, and by an adult, is properly quite different. The latter must give that care to his own protection which is ordinarily exercised by one of ordinary discretion; while less is required of an infant, the degree depending upon his age,

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 objection 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 children might 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 moving trains and cars, especially as it was improper to couple cars on that track and at that place."

V.

Many other courts have laid down the same principles that are well stated by the Georgia Supreme Court in Ashworth Southern Ry. Co., 116 Ga. 635, 43 S. E. 36, 59 L. R. A. 592, a case more nearly like this one on the facts than any that has come under our notice. In that case it appears from the petition, which the court held stated a cause of action, that for 2 or 3 years prior to the day of the injury to Ashworth it was the custom of children living in a little town through which the train ran to board the engine and cars, and this custom of the children, of riding upon and jumping off the cars and engine, was known to the defendant company through the knowledge of its servants and employés who operated the train. The children who were accustomed to board the engine and cars ranged in age from 6 to 15 years. Ashworth, who was 8 years old, in common with a number of other children, climbed upon and into the cars, and Ashworth got on the running board of the engine, and after it had started they attempted to jump off, at which time Ashworth fell under the wheels, and both of his legs were cut off. The court upon these facts

said:

bring it within the scope of the rule laid down in the cases referred to, but that it is and should be controlled by the doctrine announced in L. & N. R. R. Co. v. Webb, 99 Ky. 332, 35 S. W. 1117, 18 Ky. Law Rep. 258; Monehan v. South Covington & Cincinnati St. Ry. Co., 117 Ky. 771, 78 S. W. 1106, 25 Ky. Law Rep. 1920; Swartwood's Gdn. v. L. & N. R. R. Co., 129 Ky. 247, 111 S. W. 305, 33 Ky. Law Rep. 785, 19 L. R. A. (N. S.) 1112, 130 Am. St. Rep. 465; and other like cases.

In the Webb Case, Webb, a boy 11 years old, while attempting to get off of a moving freight train, slipped, and, one of his legs getting under the wheels, it was cut off. It appears from the opinion that Webb and other boys about his age had occasionally assisted in unloading freight at the depot of the company previous to the day on which the accident occurred, and that the conductor encouraged the boys to assist in unloading the freight by promising them that they might ride on the train from the station to the water tank.

Webb had ridden twice on

the train to the tank before he was injured, but on the day he received the injuries he was not at the depot when the train arrived, but the other boys were and assisted in unloading the freight, although Webb did not, nor did the conductor say anything to him about it, or promise him a ride, or invite or request him to ride. Webb reached the depot while the boys were unloading and just before the train started. After the train arrived at the tank and had stopped, Webb and the other boys who had ridden to the tank got off and went back towards the rear of

jumped from them to the ground while the train was moving; when Webb jumped his feet struck a pile of coal near the track and his foot went under the wheels. There was no evidence that the conductor or any of the other employés of the company saw Webb or the other boys when they took hold of the

"If a railroad company expressly invites, or tacitly permits, persons to be upon its premises, or in and about its machinery, the company owes to such persons the duty, not only not to injure them when their presence becomes known, but also to anticipate their presence at the time when or the place where such invitation or permission would probably bring about their presence, and to take such measures as ordinary the train, and after it was started Webb and 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 track, and its machinery, and is entitled to exclude therefrom others who have no interest or right therein. A railroad company which continuously permits persons to be upon its right of way or in or about its machinery, at given times and places is put on notice by this conduct on its part that such persons may be present at such times and places; and by this 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. 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, to swarm upon the train and ride to the limits

*

Railroad companies

relieve him from the danger; further saying:

"In this view of the case, in order to ren

attempt to get on the train after it left the tank. In other words, the decision of this case was put upon the ground that Webb was a trespasser at the time he got hurt, not technically but actually, and hence the com

prove that the conductor of the train persuaded or invited the infant appellee to get on the train and ride to the water tank; that the accident that happened there in which he was injured was one that was likely or might reasonably have been expected to happen to him in the 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 which they him after his peril was discovered. had voluntarily exposed him. * The bill of exceptions contains no evidence introduced by either party that showed that the conductor either invited or induced the infant appellee to ride to the water tank on the day he was injured, or that the conductor was aware that he intended to board the train, or when he did so. * * And the evidence fails to show that the conductor, or any of the trainmen, saw the appellee after reaching the tank until after his

foot was mashed."

* **

In holding that it was inadmissible to

show what the conductor did and said to the

boys on days before the accident about letting them ride to the tank if they would help unload the freight, the court said:

"This testimony ought to have been rejected. The case was between the infant appellee and the appellant, and the subject of the investigation was what occurred on the day the injuries were inflicted, and what occurred on previous days had no necessary connection with and was in no sense a part of the transactions of that day. For this reason also the court properly refused to allow proof to be made in behalf of the appellee of what it was alleged the conductor and the trainmen said to the boys on occasions before that day about swinging on the ladders attached to the sides of the cars, and telling them to do this in order to learn to be 'hoppers' and the like, and that the boys were in the habit of practicing in that way on previous occasions when they rode to the tank."

It will be observed that the court, in the course of the opinion, said that in order to hold the railroad company liable, it was necessary to show that the conductor of the train permitted or invited Webb to get on the train, and that the accident that happened to him was one that was likely or that might

reasonably have been expected, and that the evidence failed to show these requests. It will further be noticed that at no time did the conductor agree that the boys might ride on the train any farther than the water tank, and that after the train had started from the water tank after stopping there, Webb was hurt in trying to get off and at a time when neither the conductor nor any of the train crew knew he was on the train.

Looking at it in this light, although the company might have been liable if Webb had been hurt between the station and the water tank, on account of the habit of the boys in riding from the station to the water tank, when the train left the tank after stopping there to take water and started on its journey, Webb when hurt was not on the train by the invitation or permission of the conductor, because the permission of the conductor to ride ended when the train reached the water tank; and so when the train started the conductor was under no duty to look after the safety of the boys, as he was not required to anticipate that they would

In the Monehan Case, Monehan who was 6 or 7 years old, in company with another boy of the same age, got on the steps of the rear platform of a street car while it was standing at a street intersection without invitation or consent then or before, and on the opposite side of the car from where the passengers were taken on and let off. When the car started he was jolted off and received the injuries for which he sued. There was no evidence that the conductor saw the boy on the steps, but it was contended that by the exercise of ordinary care he could have seen him, and whether the company was under a duty to exercise ordinary care to discover his presence was the real question in the case. And the court said:

"Monehan was a mere trespasser upon the rear steps of the car, and those in charge of it did not owe him any duty of discovering his peril."

Plainly this case has no application here. In the Swartwood Case the question for decision was whether railroad companies whose lines traverse cities and towns or run through populous communities must maintain a lookout for children who are in the habit of jumping on and off the cars while in motion. The petition, to which a demurrer was sustained, charged in substance, that Swartwood, a boy about 8 years old, and other children, were in the habit of jumping on and off the cars while in motion, and that the company was aware of this practice. It was not charged that the company knew that the boy was attempting to get on the car at the time he did, or that the company had neglected to use any precautions to save him from injury after discovering his peril.

And the court said:

"If the operators of the train know of the actual presence of such trespassers, for such they are, they are required by the humaneness of the law to not injure them if with the means at their command they can avoid doing so. Nor will the inconvenience and annoyance entailed be counted. The courts have never gone further than that. The Legislature may, but it has not. Any other rule, particularly the one contended for by appellant, would require practically that such railroads should police all their lines and vehicles in such cities and towns in anticipation of the dangers to thoughtless and heedless persons. * * All who venture unbidden by the company and unknown to it, upon its trains, do so at their own peril, as they can have no right, and the company therefore owes them no duty, in such case. This rule also applies from the very necessity of the matter, without respect to the age or condition of the trespasser, for the court must deal with the question first of legal duty, not compassionable innocence."

It will be observed that in that case there was no evidence, as there is in this, to show that the conductor habitually or at all permitted and encouraged boys to board the cars, and this, it may be remarked, is the only feature of the case we have on which the liability of the company can be put, aside from the liability arising to protect Noble after his peril was discovered and which will be later discussed. For, although it might have been the habitual practice of Noble and other boys about Grays to jump on and ride on moving trains without being invited or permitted, tacitly or otherwise, to do so, the company would not be liable if any of them got hurt while so trespassing, unless his place of danger on the train was actually discovered in time to prevent injury to him by the exercise of ordinary care. But when, as in this case, there is evidence to show that boys of immature age and discretion are habitually permitted by the conductor to jump on and ride on moving trains, then the company voluntarily assumes the duty of anticipating that they will do what he has permitted and consented that they might do, and the further duty of exercising ordinary care to look out for and protect them from injury.

for infants than it is to keep them safe for adults, unless and until by its course of conduct it has established a status for children that imposes upon it more care than it would owe to adults or than it would owe to children except for its course of conduct. And so if a different standard of duty and care is exacted in respect to children from that which is exacted in the case of adults, it is only because the railroad company by its dealings with the children has induced them to believe that they might safely go and be where they do go, and has put before them and within their easy reach things that are inviting and attractive to childish fancy, and which they have not sufficient discretion and understanding to appreciate the danger of meddling about or coming in contact with.

[4] It might also here be observed, that a railroad company has, in section 805 of the Kentucky Statutes, making it an offense for any person except passengers and employés to get on a moving train, an efficient means preventing trespassing on its trains and cars, although this statute did not interpose a bar to a recovery by Noble, on account of his age and the circumstances attending his injury.

[5] In addition to what has been said, there remains the disputed question as to whether the conductor, when and before he started the train, discovered the presence of Noble riding on or hanging on the step of the coal car, and if he did, what was his duty under the circumstances. This issue we will consider and dispose of as if Noble was a trespasser pure and simple, and as if he had not been invited or encouraged to get on the step or on the car by the previous conduct of the conductor. Upon this issue there was sharp dispute. According to the evidence of the conductor, which is corroborated by another witness, he did not and could not have seen Noble on the step of the coal car at or before he signaled for the train to start; while, according to the evidence of Noble, which was also corroborated by other testimony, Noble was in plain view of the conductor when he signaled the train to start, and in such a position as that he could not have avoided seeing him. So that

[2] Accordingly we think that the evidence as to the habitual and continued custom of boys jumping on and riding on and jumping off this coal train, and as to the habitual and continued practice of the conductor in permitting them to do so, was competent, and put upon the company the duty at the time Noble was injured of anticipating that Noble and the other boys would do on that occasion what they had been in the habit of doing, and the duty of exercising ordinary care to discover their presence on and about the cars, and the duty of exercising ordinary care to prevent injury to them when their presence was, or could by the exercise of ordinary care have been, discovered. And these issues, under the facts of this case, were for the jury under proper instructions. It may be asked, What is the company to do under circumstances like this to relieve itself from liability for accidents that may 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 the railroad company will not be responsible for injuries to boys who jump on its trains, unless the train crew permit or encourage them to do so, or unless after they have been actually discovered in a place of peril the company fails to exercise ordinary care to prevent injury to them. In other words, when the railroad company, through its servants in charge of the train, does not encourage or invite or permit boys to ride on its trains, those who get on will be treated as trespassers and the company only held to the duty that it owes to ordinary trespassers.

[3] A railroad company is no more bound to keep its tracks, cars, and premises safe

[6] Looking at the matter as if Noble was an ordinary trespasser, the only duty the conductor owed him was to exercise ordinary care to prevent injury to him after his peril was actually discovered by the conductor, and if the conductor saw Noble hanging on the step of this coal car before and at the time he signaled the train to start, it cannot be denied that he must have known that Noble was occupying a place of extreme danger for a boy of his age, and his duty under these circumstances was not to start the train until Noble had been removed from this place of danger. This was the only thing open for the conductor to do in the exercise of ordinary care, and this, assuming

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 the subject of contributory negligence. On behalf of the railroad company it is insisted that because the evidence of Noble shows that he knew it was dangerous to get on or off of a moving train, and had been warned many times not to do so, as well as whipped for doing it, there should have been a directed verdict in favor of the company, upon the ground that the contributory negligence of Noble was sufficient to defeat a recovery in his behalf. If Noble had been a man, or a boy of mature years, it might well have been ruled as a matter of law that he voluntarily and understandingly assumed the risk of being hurt when he took this dangerous position, and that he should be charged with such contributory negligence as would bar a recovery. But Noble's negligence in attempting to ride in this dangerous place, or in attempting to get on in this dangerous place, should not, on account of his age, conclusively bar his right of recovery, although he was a bright, intelligent boy; had lived near the railroad all of his life, and was as familiar with the operation and movement of trains as any boy of his years and discretion could well be, and knew, as he testified, that it was dangerous to jump on moving trains, and had been warned not to go about them, and had been whipped for doing so. He doubtless knew that if he fell under the train it would kill him or cut his legs off. But nearly any boy of his age will say, if asked, that he knows if he falls in the river he may get drowned, or if he falls in the fire he will get burned, or if he gets in the way of a street car or an automobile he may be killed, or if he plays with a loaded pistol he may shoot himself. But mere boyish knowledge of everyday things like these about which children learn almost as soon as they are old enough to walk does not necessarily imply that they appreciate or understand the necessity for keeping away from or not doing these things.

And so the mere statement of a boy of 8 that he knows a thing is dangerous, or knows it will hurt him, or knows he will be crippled or killed if he does it, is not to be given the meaning it would have if spoken by a mature mind. Knowledge in cases where contributory negligence is in issue, as well as in many others, implies age, capacity, and experience sufficient to appreciate and comprehend the full meaning and effect of what one does and the consequences that will follow. It is this degree of capacity that the law presumes men and boys of mature years to possess, and accordingly it holds them accountable for their acts; but when it comes to measuring and judging the accountability of children of immature age, it has always been the policy of this court to leave its determination to a jury as a question of fact about which there may be reasonable difference of opinion.

Out of many cases from this court fully supporting this conclusion, we may refer to the following, in which it was held that when the child is between 6 and 12, the question of his contributory negligence is for the jury, although it may appear that he was warned of the danger of doing what he was doing when injured: City of Owensboro v. York's Adm'r, 117 Ky. 294, 77 S. W. 1130, 25 Ky. Law Rep. 1397, 1439; Davis' Adm'r v. Ohio Valley Banking & Trust Co., 127 Ky. 800, 106 S. W. 843, 32 Ky. Law Rep. 627, 15 L. R. A. (N. S.) 402; United States Natural Gas Co. v. Hicks, 134 Ky. 12, 119 S. W. 166, 23 L. R. A. (N. S.) 249, 135 Am. St. Rep. 407; Standard Oil Co. v. Marlow, 150 Ky. 647, 150 S. W. 832; Trent v. Norfolk & Western Ry. Co., 167 Ky. 319, 180 S. W. 792; Macon v. Paducah St. Ry. Co., 110 Ky. 680, 62 S. W. 496, 23 Ky. Law Rep. 46; Merschel v. L. & N. R. R. Co., 121 Ky. 620, 85 S. W. 710, 27 Ky. Law Rep. 465.

[8] The further argument is made in behalf of the railroad company that it should not 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 thought to the consequences that may follow what they do, and to hold as a matter of law boys of 8 years old, whether good or bad, bright or dull, to the high standards demanded of men in looking after their own and the safety of others, would be opposed to the

We cannot agree with this view of the law as applicable to the case. The conductor was in charge of this train, and Noble and the other boys who were, as some of the witnesses said, encouraged and permitted by him to ride on it were too young to inquire into, or take notice of, or appreciate, or un