Opinion of the Court. pleted. Hence it is plain that the Appalachian Company was relying upon its remedies on the covenant to secure its enforcement, and one of these was, in this case, a cancelation of the contract. Serjeant Williams' third rule is as follows: "3. Where a covenant goes only to part of the consideration on both sides, and a breach of such covenant may be paid for in damages, it is an independent covenant, and an action may be maintained for a breach of the covenant on the part of the defendant without averring performance in the declaration." And the learned annotator, after citing a number of cases to sustain the rule thus stated, gives the reason for it as follows: "Hence it appears that the reason of the decision in these and other similar cases, besides the inequality of the damages, seems to be, that where a person has received a part of the consideration for which he entered into the agreement, it would be unjust that because he has not had the whole, he should therefore be permitted to enjoy that part without either paying or doing anything for it. Therefore the law obliges him to perform the agreement on his part, and leaves him to his remedy to recover any damage he may have sustained in not having received the whole consideration;" citing Boone v. Eyre, 2 W. Bl. 1312; S. C., 1 H. Bl. 273, note a; Campbell v. Jones, 6 T. R. 570; The Duke of St. Albans v. Shore, 1 H. Bl. 270. In the case before us the minimum royalty was to be paid not only for the coal taken from the mines to be reached by the railroad extensions, but also, and in much greater part, for the coal taken from Mines A and B which already had railroad connection. We have al ready alluded to the injustice of a construction which would permit the Appalachian Company to have all the coal mined or which might have been mined from Mines A and B, amounting to seven hundred and fifty tons a day, for nothing. The principle announced in Serjeant Williams' third rule finds illustrations in Lord Ellenborough's judgment in Hunt v. Silk, 5 East, 449, Lyon v. Bertram, 20 How. 149, 154, Payne v. Bettisworth, 2 A. K. Marsh. (Ky.) 427, 429, and Nelson v. Oren, 41 Illinois, 18. Opinion of the Court. The cases of Hoare v. Rennie, 5 H. & N. 19, and Norrington v. Wright, 115 U. S. 188, 203, relied on by the plaintiff in error, have nothing in them conflicting with the construction placed by us on this lease. They were cases of mercantile contracts for the delivery of merchandise in monthly instalments, and a failure by the vendor to deliver an instalment in the time and manner prescribed was held to be the breach of a condition precedent entitling the other party to rescind. Their ratio decidendi is shown by the opening words of Mr. Justice Gray in delivering the opinion of the court in the latter case. He said: "In the contracts of merchants, time is of the essence. The time of shipment is the usual and convenient means of fixing the probable time of arrival, with a view of providing funds to pay for the goods, or of fulfilling contracts with third persons. A statement descriptive of the subject-matter, or of some material incident, such as the time or place of shipment, is ordinarily to be regarded as a warranty, in the sense in which that term is used in insurance and maritime law, that is to say, a condition precedent, upon the failure or nonperformance of which the party aggrieved may repudiate the whole contract." It will be seen that cases of this class rest on the exigencies of mercantile business, and, like warranties in maritime insurance, are based ultimately on custom and usage. But, conceding to these decisions all the effect claimed for them, there is nothing in them from which it can be inferred that the vendee can avoid payment of the contract price for the instalments already received and used by him; and yet that is, in reality, what the Appalachian Company seeks to do here. The judgment of the Circuit Court is Affirmed. Syllabus. FELTON v. AUBREY. ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE DISTRICT OF KENTUCKY. No. 371. Argued February 10, 1896. - Decided April 14, 1896. From an infant of tender years less discretion and intelligence are required than from an adult. The prudence and caution required from a boy of nine years of age should be measured by his comparative maturity and capacity, and the care and prudence to be required of a boy of that age are such as are to be reasonably expected from such a boy, or from boys of that age, looking to their habits and knowledge of the dangers to be apprehended, but each case must depend upon the facts and circumstances of that case. Where a boy of nine years of age is not on the track of a railway company, nor near enough to its track to be struck by a passing train, and is not in a position in which he appears to be in danger or about to get into danger, and from the side of the track undertakes to grab and climb upon a moving train, his immaturity of years and discretion has no bearing whatever upon the question of the liability of the railway company, for in such case the railway company is guilty of no negligence, and any injury sustained by the boy is not the result of any fault or breach of duty by the railway company. A boy nine years old was injured in broad daylight by a railway train at a place where the track of the railway company crossed an open common upon a high embankment. The boy claimed and testified that he did not undertake to climb upon the cars, but was overtaken as he was crossing the track in front of the train; that he neither saw nor heard the approaching train; and that he did not look to see if anything was approaching. The railway company insisted, and there was evidence to support this, that the boy was not run over by any car in front of the engine, but that he undertook to climb upon one of the cars behind the engine, lost his hold, and was run over. Held, (1) That if the boy was on the track, on his admission that he neither saw nor heard the approaching train, and did not look to see if anything was approaching, although it was broad daylight, a responsible adult would have been guilty of such gross negligence as to defeat any recovery, unless the railway company, after discovering his situation in time to have avoided injury to him, had used no exertion to ward off the danger; (2) that the degree of care and caution to be required from a child circumstanced as he was, inasmuch as less discretion and intelligence are required from a child than from an adult, depended upon his age, his experience at similar places, and his intelligence; (3) that, if the boy Syllabus. was not on the track, nor near enough to be struck by a passing train, nor in a position in which he appeared to be in danger or about to get into danger, and from the side of the track undertook to grab and climb upon the moving train, his immaturity of years and discretion had no bearing upon the question of the liability of the railway company, as in such a case the company would be guilty of no negligence; (4) that the trial court did not make plain to the jury the distinction between the liability of the railway company if the boy had gotten onto the track and if he had, without getting onto the track, attempted to grab and climb upon the moving train; (5) that the charge was subject to the criticism that the jury might infer that the immatureness of the boy would excuse his conduct in either case, and cast a liability upon the company, not because it had been guilty of any wrong, but because an immature and irresponsible person had been hurt without fault of the railway company; and (6) that the trial court erred in not presenting to the jury, freed from all questions as to the effect of the immaturity or incapacity of the boy to contribute to his own injury, the proposition that contributory negligence implied some negligence by both parties, if, as matter of fact, the boy was injured in trying to climb from the side of the track upon the train as it moved past him. Where no statute controls, the common law must determine the legal duty of the railway company in respect to the proper and prudent movement of its trains. A railway company has the right to a clear track except where the public has also an easement or right of way. Upon its general track, where the public has no equal easement or right of way, a railway company may operate its trains without regard to the possibility that unauthorized persons may be trespassers thereon, and it need not anticipate the presence of trespassers, either upon its general track or in its strictly private yards. The law imposes no duty in respect to trespassers upon the track of a railway company, except that general duty which every one owes to every other person to do him no intentional wrong or injury, and the liability of a railway company to discharge this duty can only arise when the railway company becomes aware of the danger in which a trespasser stands. A license or permission to cross a railway track or to use it as a convenient walkway may be much more easily presumed when the track passes through a city or town or a thickly settled neighborhood than in the open country, but in each case the evidence must be such as to establish a long, continuous and habitual use by the general public before either a court or a jury is authorized to presume an invitation or imply a license in favor of the public. If it appear that the public has for a long period of time customarily and constantly, openly and notoriously, crossed a railway track at a place not a public highway, with the knowledge and acquiescence of the railway company, a license or permission by the company to all persons to cross the track at that point may be presumed. Persons availing themselves of such an implied license are not trespassers, and the rail Syllabus. way company comes under a duty in respect to such licensecs to exercise reasonable care in the movement of its trains at points where it is bound to anticipate their presence. To establish such an implied license it is essential that the use shall have been definite, long, open and continuous. The mere fact that a railway track is frequently used as a walkway, or frequently crossed, and that no active steps were taken to stop this, does not justify the presumption of a license. When one injured by a railway train when crossing a railway track seeks to show that he was not a trespasser, and relies upon an implied license, he should be required to make out the license clearly. If the question be the right to walk upon a trestle or a railway bridge, a much higher degree of evidence should be required than when the place is less dangerous, and the implication of consent more probable, but if the track is laid down upon a public street the public would seem to have an equal easement therein, and the company is held to the same rule of liability as at a street crossing. A boy nine years old was injured by a train, of freight cars while he was either crossing the track or trying to climb upon a moving train of cars from the side of the track. The track crossed the open common upon a high embankment from twenty to twenty-five feet above the level of the common. The common, though within the corporate limits of the city, was in the suburbs. On it were located the city workhouse and a city quarry. With this exception, it was an open, uninclosed space, used for a general dumping ground. It was crossed in every direction by people residing in the neighborhood, and was to some extent used as a pasture for grazing cattle. The boy who was injured was on the common watching or tending cows turned out to graze. The railway company insisted that the boy was a trespasser, and that it owed him no duty until his presence on the track was discovered. Held, (1) That in considering the question whether the boy was a trespasser there might be left out of consideration all questions arising where a collision occurs at crossings of railroads and public highways; (2) that in considering the question whether the railway company was entitled to the exclusive use of its tracks at the place where the boy was injured the answer must depend upon the facts and circumstances in respect to the place where the accident occurred; (3) that the mere fact that the track was within the corporate limits of the town did not operate to deprive the railway company of its exclusive right of occupa tion and use; (4) that the fact that the track crossed an open common was of no significance in the determination of the legal right of the company to exclude all persons from its right of way; (5) that it was unimportant that the track was unfenced, and this fact did not operate to deprive the railway company of its right to exclude trespassers (6) that each and all of these facts might have made it the more difficult to prevent the public use by the railway company of its tracks as a walkway, or to prevent its tracks being intersected by paths traversed by wayfarers, and had more or less significance in the deter |