in the true sense. But it is said we must impute to the child the negligence of the mother; set off her negligence against the life of the child; offset the accident to the child with the negligence of the mother-for her negligence in sending him there with the cow was the occasion of the accident, and her husband, the father of the child, is the beneficiary here. However this, together with the need of rapid transit, may do elsewhere, it is excluded here by reason of the cases already mentioned. But it is said that there is no analogy to the rule in the cattle cases, because the company is not required to fence. The owner is not required to keep them up, but may let them run at large. Therefore they may be expectedlooked for on the track now and then, and so must be looked out for. This is a mere play on the root meaning of the word "expect." Are not children suffered to go at large more or less, and is not their occasional presence upon the track to be reasonably anticipated? Therefore why not "expect them also, taking the word in its primary sense? I have authority for saying the case (from 27 Conn., cited above) is one that such is not the reason of the rule requiring outlook, as settled in the "cattle cases. It rests upon a broader principle, and, like all broad principles, its boundaries are not defined, and cannot be, but enough has been mapped out to cover this case. "We must so use or protect our own rights as not to use excessive force, or otherwise unnecessarily injure or destroy those of another," as defined by Judge ELLSWORTH. Again, we may not push our own rights to an extreme, to the harsh or unnecessary injury of another, for such extreme rights are no rights, as may be illustrated by the case of shooting a petty thief on your grounds in the daytime. Again, that some one shall always be on the outlook on a running train is from its nature, and as shown by experience, one of the most important safeguards; indispensable, in fact, for the passenger on the going train as well as the passenger on the coming train--for those off, as well as those on, the train. The enforcement of such outlook is so imperative, on the ground of public policy, that the law may impose it as a duty, due to one who may himself be in the wrong. The passenger, for example, may not be hurt; therefore he cannot sue-he must wait until he is hurt; but he much prefers safety in fact, and the sense of safety, to any right of action after the injury has been sustained. In this matter the prevention is much more important than the cure. This makes the duty of outlook reasonable where otherwise it might not be so. And the same duty due to others makes its performance easy. So that reasonable outlook may be exacted as a specific duty in some cases such as this, when it may not be able to

stand the test of legal reasoning on strict principles relating to ordinary things. The rule of outlook laid down in the cattle cases is not without the foundation of some such principles. They cannot now be overthrown, and from them there is otherwise no escape, reinforced as it is in this case by the law's tenderness to human life and limb. The practical application of this doctrine to the case of children leads, as I now see it, almost inevitably to its application to adults, which would bring us into antagonism with very many cases of very high authority; but, when we have it to decide, this seeming inevitability may end in a plain way found, if not in an extension of the rule.

Withdrawal of case from jury.

But the question of taking the case from the jury remains. Cases often occur the decision of which may properly be withdrawn from the jury. Some courts have and exercise the power of directing a nonsuit. In Ross v. Gill, 1 Wash. (Va.) 89 (decided in 1792), it was held that the courts of this state "have no power to direct a nonsuit, however destitute the plaintiff may be of a right to recover." They may advise it, and direct the plaintiff to be called; but, if he refuses to suffer a nonsuit, the court can protect and enforce their opinion only by awarding a new trial, in case the jury find against their direction. But they may expressly direct the jury to find for the defendant, which, in practice, is seldom disregarded. Upon a motion for a nonsuit, the court may give their opinion that the plaintiff has no cause of action, and may direct him to be called, but he may nevertheless appear and refuse to be nonsuited. Thweat v. Finch, 1 Wash. (Va.) 217. So, on the other hand, the court may, upon motion, declare that the action is maintainable, or may refuse to give any opinion, and so leave the whole question with the jury (Id.); and this latter is the proper course, unless some essential element of the right of recovery is wholly wanting, or the evidence, as a whole, is so destitute of proof of what is essential that there is no room for two honest, intelligent opinions about it, or the question, on indisputable facts, is purely a question of law. So the court may direct the jury to find the facts on any issue in a special verdict, and then decide the case on the law arising thereon, or to find in writing on any particular question of fact stated in writing. See Code 1891, c. 131, § 5. But each party has, as matter of right, the power to withdraw the case from the jury, and have it decided by the court, in which case all the evidence is certified and considered, and the jury find a verdict for the plaintiff, together with the amount he is entitled to recover, if the opinion of the court upon the demurrer to evidence shall be for the plaintiff, and a verdict for

defendant if such opinion shall be for defendant; and all reasonable and proper inferences are left to be drawn by the court, without the necessity of their being found or agreed on, and, when decided, the case is ended. If the method of moving to exclude for insufficiency is resorted to, it must at least be confined to such cases as justify the court in directing a verdict. We have no right to presume that the plaintiff brings his suit in order to have certain points of law determined by one or more appeals. He desires a trial by jury if he is entitled to it, and, in any event, may rest satisfied with their verdict. If incompetent evidence is in, let it be stricken out; and if that leaves plaintiff's case without support, or if from any cause he is clearly not entitled to a verdict, let the court direct a nonsuit. How do we know that plaintiff will not submit to it? And if plaintiff does not submit, let the jury be directed to find for defendant; or if the defendant thinks it a proper case to withdraw from the jury and submit to the court for decision upon the immediate or more deliberate consideration of all the evidence, he can thus withdraw it; such is his right.

During the progress of the trial, plaintiff in error asked Mrs. Esom Mays, the mother of the two little boys, the question: "What was the age of your youngest child Evidence-Res that was at home at that time?" (time of the acci- gestae. dent). She was not permitted to answer, and plaintiff, having excepted, assigns this ruling as error. This question of plaintiff to his own witness was intended, no doubt, as a gradual approach; but he begins so far off that we are not able to see any relevancy whatever, and the asking of it was properly refused. James Capehart, a witness for plaintiff, was a passenger on the up-bound train that morning, and was asked by plaintiff the question, "Right at the time and while you were examining the children,-right at the time of the accident,what, if anything, did you hear the conductor or engineer say?" The court refused this question. It was proper for plaintiff to indicate by the form of the question, or, when objection was made, in some other proper way, that he was seeking to elicit a part of the res gesto. I think the question itself pointed with sufficient certainty to the supposed nature and competency of the expected reply; and the court should, in some way, have heard the answer of the witness, and then have determined whether the thing said was a part of the thing done, or only a mere narrative of something that had taken place. As it is, this court cannot say whether the expected answer was competent or not, and the record shows that the competency of the answer was determined without hearing it.

Under section 30, c. 116, p. 780, Code 1891, and before any evidence had been heard, plaintiff moved the court View by jury. to send the jury to view the place where the accident happened, and again after the plaintiff's evidence was all in he renewed his motion. The court overruled the motion. This proceeding must, for obvious and peculiar reasons, be left largely to the discretion of the trial court, who can best say whether such view is necessary to a just decision. So far as the record enables this court to venture an opinion on the point, it appears that such view was not necessary. And besides, the court may have based its refusal on other proper grounds, which readily suggest themselves. Railroad Co. v. Polly, 14 Grat. 470, 471.

In conclusion, summing up our views of this case, we are of opinion, from principles already announced by this court, that a railway company owes to a child on its track, apparently insensible of its danger, the duty of ordinary Conclusions. care in keeping before its running train an outlook, reasonable according to the circumstances, in order to discover it, and, when discovered to be such a child, to use such precautionary measures as are proper and prudent, under the circumstances, to avoid its injury. In such cases the measure of duty is ordinary care. Such care is not fixed, but variable, depending upon the reasonable requirements to be exacted from the prudent man of skill in the business, under the circumstances. So that the question what is the duty, under the circumstances of the case, as well as the question whether or not such duty has been performed, has to be determined in some way, but, from its variable nature, cannot be determined as a matter of law; hence the peculiar propriety of not withdrawing it from the jury, except by the longsettled and well-established methods. See Railroad Co. v. McElwee (1871), 67 Pa. St. 311; McCully v. Clarke (1861), 40 Pa. St. 399; Canal Co. v. Bently (1870), 66 Pa. St. 30.

As to the question propounded to Mr. Capehart, his own evidence shows that he was a passenger on the train, who at once got off and went to the place of the accident with the engineer and conductor. The form of the question, and the circumstances under which it was propounded, sufficiently show that plaintiff proposed to prove something said as part of the res geste, and the court should have heard or seen the answer, and then have passed upon its competency. See Scotland Co. v. Hill, 112 U. S. 183. See Bk. 12, Lawy. Rep. Ann. p. 556, and notes to Shinners v. Proprietors (Mass.).

As to the time when the deceased took his seat astride the guard-rail, common knowledge and common experience are parts of the trial of every civil issue, without special proof;

so that the jury might reasonably infer from the facts proved that it would require a few seconds, at least, for these children to go upon the trestle and seat themselves. As to the exclusion of the evidence in this case, we think it was error to exclude the same from the jury; but we do not thereby intend to intimate any opinion as to what should have been done if the question had arisen upon a demurrer to evidence or on motion for a new trial after verdict.

Judgment reversed, and cause remanded.

Duty of Engineer to Look out for Trespassers on the Track.-See McDermott v. Kentucky Cent. R. Co., and note, ante, p. 121, 125.

LAKE SHORE & MICHIGAN SOUTHERN R. Co.

v.

BODEMER.

(139 Illinois, 596.)

Injury to Trespasser on the Track-Gross Negligence-Wilful Injury— Question for Jury.-Where a trespasser upon the tracks of a railroad company is injured, the company is not liable, unless the injury was wantonly or wilfully inflicted, or was the result of such gross negligence as evidences wilfulness. There is such evidence of wilfulness or gross negligence as to justify the submission of the case to the jury, where it was shown that the trespasser was killed by a train running at a speed of 35 miles per hour, in violation of a city ordinance, without giving any warning signal, in a crowded city, upon an unguarded track connected with and apparently the continuation of a public street where persons were daily passing and crossing.

Evidence that Persons Were in the Habit of Crossing Railway Tracks at a place where a trespasser was killed is admissible in an action for his death, where the surroundings were such as to give the track the appearance of being laid in a public street, and at the time of the admission of such evidence there was no evidence that the tracks were on the company's exclusive right of way.

Injury wantonly Inflicted-Evidence of Ordinances as to Speed and Signals. In an action for the wrongful death of a trespasser on the tracks of a railroad company, where the court limits plaintiff's right to recover to a count in the declaration charging that the injury was wantonly inflicted, the admission in evidence of ordinances limiting the speed of trains and requiring signals is not reversible error, although the ordinances are not mentioned in the count, where the defendant's counsel admits in his opening statement that the former ordinance was violated, and the latter ordinance is not read in the hearing of the jury.

Same--Failure of Engineer to See Trespasser. In an action for wantonly and wilfully killing a trespasser on the track, it is not necessary to show by affirmative testimony that the engineer's look was directed toward the

54 A. & E. R. Cas.-12