administered commands the approbation of heaven and earth alike; and a verdict thus rendered meets all the requirements of the juror's oath, in the fullest sense of the word-a true expression of the convictions fixed on the minds of the jury by the testimony. Independent of the legal question considered above, and which we have declared to be determinative of this case, the verdict of the jury was so palpably against the evidence that a new trial ought to have been granted on that account. Reversed and remanded. Injury to Boys Trespassing on Cars.-See Catlett v. St. Louis, I. M. & S. R. Co., and note, post. CATLETT v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN R. Co. (Arkansas Supreme Court, March 18, 1893.) Boys Trespassing on Cars-Duty of Company to Prevent,-A railway company is not bound to keep a lookout to prevent boys from swinging on the ladders of its moving freight trains, and a failure to do so is not negligence. The doctrine of the "turntable cases" does not apply to such cases. Power of Judge to Direct Verdict-Constitutional Provision.-A constitutional provision that "judges shall not charge juries with regard to matters of fact," does not prohibit a judge from directing a verdict for either party where the evidence is not sufficient to sustain a verdict for the other party. APPEAL from Cross circuit court. COCKRILL, C.J.-A railway company is not bound to keep a lookout to prevent boys from swinging on the ladders of its moving freight trains; and its failure to do so is not negligence. Bishop v. Railway Co., 14 R. I. Duty to keep 314; Railway Co. v. Stumps, 69 Ill. 409; Railway boys off trains. Co. v. Ledbetter, 45 Ark. 246; Railway Co. v. Connell, 88 Pa. St. 520. If boys have stolen rides in that way at a given point, without remonstrance from the company's train-men, that fact does not amount to an invitation to do so on another occasion. The boy who attempts it is a trespasser, and the company owes him no duty save not to injure him wantonly. 54 A. & E. R. Cas.-8 Daniels v. Railway Co., 154 Mass. 349, 48 Am. & Eng. R. Cas. 539; Morrissey v. Railway Co., 126 Mass. 377; Wright v. Railway Co., 142 Mass. 296, 28 Am. & Eng. R. Cas. 652; Rodgers v. Lees, 140 Pa. St. 475, and cases cited; Shelton v. Railway Co., 60 Mo. 412; Duff v. Railway Co., 91 Pa. St. 458, 2 Am. & Eng. R. Cas. 1; Railway Co. v. Smith, 46 Mich. 504, 4 Am. & Eng. R. Cas. 535. The appellant argues that a slowly moving train is "dangerous machinery," alluring to boys; and that it is therefore negligent of the company to fail to take precaution to keep them off such trains. That is the argument made to sustain a class of cases known as the "Turntable Cases," the leading one of which is Railway Co. v. Stout, 17 Wall. 657. The doctrin of those cases has been much criticised and doubted, and by some courts repudiated. See Daniels v. Railway Co., 154 Mass. 349, 48 Am. & Eng. R. Cas. 539; Patt. Ry. Acc. Law, § 196. Whatever its merits may be, it has never been extended to such length as to control a case like this. See Bishop v. Railway Co., 14 R. I. 314; Shelton v. Railway Co., 60 Mo. 412. The youth of the person injured will sometimes excuse him from concurring negligence, but no amount of youthful recklessness can supply the place of proof of negligence on the part of a defendant sought to be charged on account of negligence. Patt. Ry. Acc. Law, § 75. There was no proof of negligence on the part of the company. There was therefore nothing for the jury to consider. The court so informed the plaintiff when the evidence was all in, and gave him the opportunity to take a nonsuit, but he elected to stand upon the legal sufficiency of his proof, and the court directed a verdict for the de-. fendant. Power of judge to direct verdict. The constitution provides that "judges shall not charge juries with regard to matters of fact, but shall declare the law. Article 7, § 23. This provision shears the judge of a part of his magisterial functions, but it confers no new power upon the jury. It was the jury's province before this provision was ordained to pass only upon questions of fact about which there was some real conflict in the testimony, or where more than one inference could reasonably be drawn from the evidence. The constitution has not altered their province. It commands the judge to permit them to arrive at their conclusion without any suggestion from him as to his opinion about the facts. As Judge BATTLE expressed it in Sharp v. State, 51 Ark. 155, "the manifest object of this prohibition was to give the parties to the trial the full benefit of the judgment of the jury on the facts, unbiased and unaffected by the opinion of judges." If there is no evidence to sustain an issue of fact, the judge only de clares the law when he tells the jury so. "The legal sufficiency of proof, and the moral weight of legally sufficient proof, are very distinct in legal idea. The first lies within the province of the court, the last within the province of the jury.' Wheeler v. Schroeder, 4 R. I. 383. It was said in the case of Railway Co. v. Henson, 39 Ark. 419, 19 Am. & Eng. R. Cas. 440, that this provision prohibited the judge from directing a verdict for either party, but the other decisions of the court show that the rule there announced is limited to cases where there is some evidence to sustain the issue. Before and after that case was decided, the court, through Chief Justice ENGLISH, said the practice of directing a verdict was improper "except in cases where there is no evidence to sustain the cause of action or defence, and the court can say so as matter of law, it being the province of the jury to judge of the facts and of the court to declare the law. Overton v. Matthews, 35 Ark. 155; Railway Co. v. Barker, 39 Ark. 499, 19 Am. & Eng. R. Cas. 195. In Jones v. State, 52 Ark. 347, it was said the trial judge should in no case indicate an opinion as to what the facts establish, but that the court must necessarily determine whether there is any evidence at all to establish a given fact in deciding whether a request for a charge based upon a case hypothetically stated should be given or not. In Cline v. State, 51 Ark. 140, it was ruled that the provision of the constitution did not prohibit the judge from telling the jury that a certain fact was proved when it was in effect admitted by the parties, or there was no evidence to contradict it, and nothing from which a different inference could be drawn. In Railway Co. v. Perry, 37 Ark. 193, 9 Am. & Eng. R. Cas. 127, Judge EAKIN, for the court, said: "If there is any evidence whatever, however slight, pertinent to the issue, it should not be taken from the jury, even if the court is satisfied that it would grant a new trial if a verdict were found upon it;" and he said that was the effect of the former rulings of this court. But the same learned judge, in the case of Oliver v. State, 34 Ark. 639, explained that the scintilla doctrine has never prevailed in this state. We take it therefore that "any evidence, however slight," as used by him, does not mean a scintilla merely. In Richardson v. State, 47 Ark. 567, Judge SMITH says: "It is the duty of the trial court to set aside a verdict which is clearly against the weight of the evidence," and that injunction cannot be too often repeated; for, as he further explains when the questions of fact reach us, we do not undertake to revise the discretion of the circuit judge in that respect, but inquire merely whether there is a failure of proof on a material point. That is the marked distinction between the duty resting upon the trial and the appellate courts. To ascertain whether there is a failure of proof, or whether the evidence is legally sufficient to warrant a verdict, the test is as follows: After drawing all the inferences most favorable to the verdict that the evidence will reasonably warrant, is it sufficient in law to sustain the verdict? The terms "some evidence," "any evidence," "any evidence whatever," and "any evidence at all," as used in the opinions, all mean evidence legally sufficient to warrant a verdict. The legal sufficiency of evidence in that sense is a question of law, and the court must decide it, it matters not when or how it arises. The test that is applied by this court in determining the legal sufficiency of the evidence to sustain a verdict justified the trial court in reaching the conclusion that there was no proof of negligence. The conclusion followed as matter of law that no recovery could be had upon any view that could be taken of the facts which the evidence could be said to tend to establish. The question of negligence was therefore one of law for the court to decide. Railway Co. v. Cox, 145 U. S. 593; Railway Co. v. Ives, 144 U. S. 408. As the evidence is not legally sufficient to sustain a verdict for the plaintiff, the jury had no duty to perform, and it was the judge's duty to tell them so, as he did. When the whole case appears to have been developed, that is, the plaintiff has adduced evidence tending to prove all the facts obtainable to sustain his complaint,-and the undisputed evidence is so conclusive that this court would be compelled to reverse the judgment based upon a verdict in his favor, the court should withdraw the case from the jury and direct a verdict for the defendant. That was the condition of this case. If it is probable in any case that the missing link can be supplied, a nonsuit would be the proper practice. When a judgment is reversed in this court because of no evidence to sustain the verdict, and the cause appears to have been fully developed, it has grown to be the practice since the act of April 14, 1891, to dismiss the suit instead of remanding the cause for a new trial. It is the duty of the courts to prevent parties from being harassed by suit after it appears that the suit can be of no profit to the plaintiff Affirmed. Injury to Children Trespassing on Cars-Liability of Company.-In Heppel. St. Paul, M. & M. R. Co., (Minn., April 7, 1892,) 51 N. W. Rep. 1049, it appeared that one of the defendant's side-tracks in the city of St. Paul runs into a lumber-yard, near which plaintiff's intestate, a girl of the age of 12 years, resided. On the day in question, while the defendant was engaged in switching cars there, the deceased, with other children, were playing together, or looking for a "rosary" she had lost along or near the track. In the mean time an engine and three cars backed down to where the children were, and there coupled on to a car, to move it out of the yard. The employés consisted of two brakemen on the freight cars and an engineer and a fireman on the engine. While the cars were standing there, snowballs were thrown in play back and forth between one of the brakemen, who was on the second car from the rear, and the child, who was standing but few feet away, and she then asked him in his hearing, and while he stood looking at her, if she could have a ride," to which he made no reply, but while he was still looking at her she immediately said to her companions, loud enough for him to hear: "Come on, let us take a ride,” and then went to the car, and climbed part way up the ladder on the side of it. There was evidence from which a jury might find that the brakeman heard her request to ride, and had notice that she was about to climb on the car or had got on, in time to require him to interpose to warn her away, or to stop the train, or delay its movements, in order to prevent an accident. The train moved forward a short distance, and the child was killed. The court held that the evidence made a case for the jury, saying: "Of course, if it should turn out on full investigation that the defendant's employés did not have notice that she was in a place of danger, or of her intention to board the car, or if they used due diligence to avert the danger after notice, no recovery can be had." Injury to Boy Playing on Turntable-Contributory Negligence.-In Merryman v. Chicago, R. I. & P. R. Co., (Iowa, May 20, 1892.) 52 N. W. Rep. 545, it was held that a boy thirteen years of age, who, while playing on a turntable, allows his legs to project over the end, so that one is caught and injured, and who testifies that he knew of the danger and could have avoided it easily if he had thought, is guilty of such contributory negligence as will prevent a recovery. The court said: "The law imposes upon minors the duty of giving such attention to their surroundings and care to avoid danger as may fairly and reasonably be expected from persons of their age and capacity. McMillan v. Railway Co., 46 Iowa, 232; Railroad Co. . Gladmon, 15 Wall. 407; Reynolds v. Railroad Co., 58 N. Y. 252; Hickey 7. Taaffe, 105 N. Y. 37; Dowd v. Chicopee, 116 Mass. 96; Messenger v. Dennie, 137 Mass. 197. In Masser v. Railway Co., 68 Iowa, 605, it was beld that a boy 11 years old was guilty of contributory negligence in playing or lounging between two parallel railway tracks 12 feet apart; and in Reynolds v. Railroad Co., supra, it was held that a boy 12 years old was negligent in attempting to cross certain railway tracks when trains were approaching. There are numerous cases which hold that the question of negligence on the part of minors is for the jury to determine, and such is the rule where the ability of the minor to comprehend the result of his acts and the danger to which they will expose him is controverted. But this case involves no question of that kind. A little attention to his surroundings would have shown' plaintiff his danger. He fully understood what would happen to his leg if caught between the table and the embankment, and some care on his part would have been sufficient to avoid all danger. The fact that his attention was diverted by the play in which he was engaged did not excuse his failure to exercise, at least, the slight degree of care which was needed for his protection. The conclusion is irresistible that the proximate cause of the accident was a want of that attention and care on his part which his knowledge and judgment required him to exercise." See, also, Barrett v. Southern Pac. Co. (Cal.), 48 Am. & Eng. R. Cas. 532, note 535; Daniels v. New York & N. E. R. Co. (Mass.), 48 Id. 539, note 545. |