force being at one time used for that purpose. There is no evidence the person in charge of engine No. 10, while at the turntable, saw appellant crossing the tracks; and it is apparent he did not see him on the Maysville track prior to the injury, because the tender obstructed his view; nor was the engine moved at either an unusual time or rapid rate of speed, but at the usual time and in the customary mode it was backed so slowly as to be stopped within length of the tender, after notice was given of appellant's presence on that track. It is therefore clear that, if appellee can be charged with any negligence at all, it consists of the failure to give warning of the movement of the engine, and to have a person in a position to see the track ahead of it.

yards.

It is a well-settled rule that the engineer of a moving railroad train must give distinct signal of its approach to a station or public crossing, and keep a lookout for No regligence persons lawfully crossing the track; and there are in not looking circumstances under which legal liability will arise out for tresfor running a train on even a trespasser. But the passer in general right of a railroad company to use its own property in its own way cannot, any more than that of a natural person, be unreasonably restricted; the only difference being that a greater degree of care and diligence is required in operating railroads, so as to avoid injuring persons or property of others, than is generally needed in the conduct of less hazardous business of individuals; and as a matter of right, as well as in the interest of the public, a railroad company should have the same immunity from hindrance and interference with management of its business by trespassers and intruders that any other corporation or natural person is legally entitled to. It thus results that an engineer of a moving train, whether passenger or freight, is required to give signal of its approach to certain places, and diligently keep in view the track ahead of him, for safety of those who have a right to go on or cross the track, and of passengers and property being transported; not for protection of a trespasser on the track whose death or injury the company can be made legally liable for only in case his peril was discovered, or, by diligent attention of the engineer to his duty to others, might have been discovered in time to prevent the train running on him. Accordingly, as moving engines and cars to and fro in the yard of a railroad company is indispensable to safe and proper conduct of its business, it should be no more obliged to specially look out for presence of those who may go there without right than for trespassers on the main track away from the yard; for to require the bell rung or whistle blown at every movement of an engine in the

company's yard to and from a coal-shoot, water-tank, or turntable, however slowly or short the distance it might have to go, or that an extra employé be placed upon every backing engine simply to warn or look out for presence of persons having no right, or reasonably expected to be there, when not at all necessary for safety of persons or property legally entitled to care and protection by the company, would be unreasonable and oppressive; and the fact that such trespasser is an infant does not affect the legal rights of the company, because signals of approaching engines must be given, and oversight of the tracks exercised uniformly and habitually or not at all, and for protection and safety of all trespassers or none. In this case, however, appellant, though only eight years old, is, as shown by his own testimony, unusually intelligent and familiar with daily movement of trains about Paris. He knew time of arrival of each train; by what engine, according to number, it was drawn; and that No. 10 went each day to the turntable, thence back to the Maysville track, in just the manner and about the time it did on the day he was hurt; in fact he saw it on the turntable as he went from the oil-house across the tracks. The evidence makes it clear he had at the time capacity enough to understand and avoid the danger he placed himself in, and it was therefore incumbent on him to exercise necessary care for his own protection. In our opinion, the evidence does not show or tend to show the injury to appellant resulted from actionable negligence of appellee or any of its servants. Neither the case of Shelby's Adm'r v. Railroad Co., 85 Ky. 224, nor Conley v. Railroad Co., 90 Ky. 402, 41 Am. & Eng. R. Cas. 537, is like or conflicts with our opinion in this. In the first named the person killed was not a trespasser, but went upon the track near a through freight train for a legitimate purpose connected with business of the company, when he was struck by detached car cut off from the engine, and, without any one upon it, permitted to go at a rapid rate of speed 300 yards, near a passway_regularly used by persons in the town where it occurred. But it was there held, as here, that a railroad company is not required to anticipate the presence of a person who intrudes into its private yard. In the other case cited, Conley, while on or attempting to cross the track near a regular passway over it in a town, on a dark night, was run on and killed by cars detached from the engine, and suffered to move on a down grade; and there was not only a failure to place light on the front part of the cars, or use other means to give warning of their approach to the passway, but, as the section of the train to which the engine was attached had already passed, it was a reasonable supposition the track could be safely crossed.

It was therefore held that a case of actionable negligence was presented notwithstanding the deceased might have been technically a trespasser. But a distinction was recognized be tween such case and one where the injured party, knowing existence of danger, purposely or negligently puts himself in the way, as did appellant.

Judgment affirmed.

Failure to Look out for Trespassers on the Track. - In Woodruff v. Northern Pac. R. Co. (C. C. Wash.), 47 Fed. Rep. 689, it was held that in an action against a railroad company for injuries to plaintiff's child, a complaint which fails to allege that the child was enticed or licensed by defendant to come on its track, or that the place of the accident was a public crossing or within a public highway, or that its servants after seeing the child intentionally or wantonly committed the injury, does not state a cause of action; as the defendant is under no duty to look out for intruders on its track on ground dedicated for its exclusive use as right of way. The court said: "The complaint does not charge that the child was enticed or licensed by the defendant to come upon its track, nor that the place where the injury happened was at a public crossing or within a public highway, nor that the defendant's servants after seeing the child intentionally or wantonly committed the injury; and without one or the other of these elements, or something equivalent thereto, I cannot regard the defendant's conduct as being morally culpable or legally wrong, so as to give rise to a legal claim for damages. While there are cases holding railroad companies responsible for injuries to trespassers not seen in time, but who might have been, by ordinary care and vigilance, discovered in time to have avoided the infliction of injuries, I find a decided preponderance of authority to the contrary. See 1 Thomp. Neg. 448; Saldana v. Railroad Co., 43 Fed. Rep. 862; Ross v. Railroad Co., 44 Fed. Rep. 44."

A declaration against a railroad company for the homicide of plaintiff's husband, which alleged, after describing the manner of the homicide, that the acts complained of constitute gross negligence on the part of the company, its agents, servants, and employés, and that said gross negligence caused the death, was amendable by striking therefrom an allegation that "the engineer on said engine was looking not at the track in front, but toward the fireman, who was on the opposite side of the engine," and inserting an allegation that "said engineer could have seen said Barnett and lumber, and did see them, in time to have stopped before reaching them, but failed to do so, and failed to give any signal, and made no effort to stop before reaching said lumber and said Barnett." Both before and after being amended, the declaration in this case set forth a cause of action. The amendment did not introduce a new cause, but only varied the statement of particulars of which the cause of action, to wit, the homicide of the plaintiff's husband, consisted. Rome R. Co. v. Barnett, (Ga., Aug. 1, 1892,) 15 S. E. Rep. 639. See, also, Louisville & N. R. Co. v. Black (Ala.), 45 Am. & Eng. R. Cas. 38; Deans v. Wilmington & W. R. Co. (N. Cur.), 45 Id. 45; Carrington v. Louisville & N. R. Co. (Ala.), 41 Id. 543, note 547.

BENSON

v.

CENTRAL PACIFIC R. Co.

(California Supreme Court, March 30, 1893.)

Injury to Person on the Track-Negligence of Engineer.-Where a child, walking with her father along a double-tracked railroad, being frightened by the approach of a train on the track parallel to the one on which they were, breaks away from her father, who held her by the hand, and goes on the other track in front of the moving train, which the engineer made every effort to stop as soon as she put herself in peril, no negligence on the part of the company can be inferred.

Same-Passenger Walking Back after being Carried beyond Destination. -The failure of a railroad company to allow a passenger to get off at her destination and carrying her to the next station beyond, is not the proxi- . mate cause of her being injured by being struck by a train while walking back to her destination on the railroad track.

DEPARTMENT 1. Appeal from San Francisco superior court.
Henry E. Highton and I. B. L. Brandt, for appellant.
W. H. L. Barnes, for respondent.

Case stated.

PER CURIAM.-This action is brought by the plaintiff, an infant, to recover damages for personal injuries' alleged to have been sustained by her while walking upon the roadway of defendant, by being run into by a locomotive operated by defendant. The case was tried by a jury, which returned a verdict for defendant, and the appeal is from the judgment and from an order refusing a new trial.

Plaintiff's evidence tended to prove the following facts: Plaintiff, a child of but six years of age, with her father and the other members of her family, took passage on a train of defendant for Watt's Station, in Alameda County. As the train approached Watt's Station the whole family arose and took positions at the door of the car so as to be able to step off the train without delay, and immediately on the stoppage of the train at the station proceeded to leave it; but the stop was so short that but part of the family were able to get off, and the train moved away with the father and the plaintiff and her brother still on it. While the family was thus endeavoring to get off, the conductor of the train was on the platform of the car, and, when the train began to move, the father asked him, "Why didn't you let me off?" and the conductor thereupon

told the father: "You cannot get off here. You have got to go to the next station, only a short distance, and you can walk back when you get to the next station." When the next station (Emery) was reached, the father, with plaintiff and her brother, left the train. The father had never before been on the part of the railroad between Watt's and Emery stations, and on stepping off looked up and down the railroad. He saw no cars. He could observe no other route than the railroad to get back to Watt's Station, and in fact there was no other way; one side of the railroad right of way being the waters of the bay, and the other a slough, running through marsh and swamp. There were two tracks, and supposing that if a train should come along behind him it would be on the east track, as the train which he had just left was occupying the west track, the father started to walk southerly along the east track to Watt's Station, carrying the baby on one arm and holding plaintiff by the hand; and he had thus proceeded for a distance of 500 or 600 feet south of Emery when he heard a noise back of him. Looking in the direction of the noise he saw a train, but owing to the existence of a curve in the road it was impossible for him to determine on which track the train was running. A moment later he looked again at the train, and saw that it was on the east track-the same on which he was walking. He then left that track, crossing to the west track, and had entirely cleared the east track, continuing all the time to hold plaintiff by the hand, when the plaintiff, frightened by the approach of the train, while it was yet 150 or 200 feet from her, broke away from her father and ran back to and on the east track, where she was struck by the flying train, and received the injuries complained of. The accident happened in broad daylight; the view of the railroad between the two stations, a distance of 2062 feet, was unobstructed, and a person standing at either station could see to, and some distance beyond, the other; and a person on the spot where plaintiff and her father were when the latter first heard the train, namely, 600 feet south of Emery Station, could easily be seen from the latter place. Plaintiff and her father were in fact noticed by the fireman of the train, according to the latter's evidence, while they were still on the track on which the train was approaching them, and were seen by him to cross over to the other track, and they were observed by the engineer when about 100 yards from the train; notwithstanding which the train, which had pulled out of Emery Station at a speed of 15 miles an hour, continued such speed. No bell was rung, or whistle blown, or other signal given plaintiff, and no attention paid to her presence on the track, until the train was within 150 feet of her, when an endeavor was made to stop it, but too