gers to Orthodox street." At another place he testified, "I squatted down to look under train running up and saw boy on outer end of sleepers walking; the train then was right on him; train struck him." The foregoing being the only testimony as to what the boy was doing at the moment he was struck, it was affirmatively established and entirely undisputed that the deceased was walking on and along the track at the time of the accident. He was not on the track at a public crossing, nor was he in the act of crossing. It is true that the railroad track at this place was laid upon the bed of a public street, and hence the right to cross it was not limited to the highway or street crossings. But the boy was walking along the track, and not across it, when he was struck. This he clearly had no right to do. There was an ample sidewalk and roadway for all foot passengers and others desiring to proceed in the same direction with the railroad. The boy was sent on an errand to a store on Orthodox street. He had not yet reached that street, but was going toward it. Instead of walking on the foot-walk at the side of the street, or even in the roadway until he reached Orthodox street, and then crossing the railroad track, he appears to have diverged from both, if he was at any time upon either, and of that there is no evidence, and walked upon the cross-ties of the railway. This, at least, is all that appears in the testimony given by the plaintiffs, of which there is no contradiction. Of course, in such circumstances he was a trespasser, and not only put himself in peril by his rashness, but also endangered the safety of any passing train, and the lives of passengers. We have so frequently held that in such circumstances there can be no recovery, that it is unnecessary to quote the authorities. As the testimony was entirely undisputed, it was the duty of the court to pass upon it, which they did by directing a non-suit. In this there was no error. The circumstance that the trespasser in this instance was a boy, ten years of age, cannot affect the application of the rule. The defendant owed him no greater duty than if he had been an adult. They are not subject to an obligation to take precautions against any class of persons who may walk on and along their tracks. In Railroad v. Hummell, 8 Wr., the rule was applied to the case of a child seven years old. And so, also, in the latest case of the kind that has been before us, Cauley v. Railroad, 2 Am. and Eng. R. R. Cas., 4, the rule was in no wise relaxed, although the person injured was a boy of tender years. In the first of these cases we used the following language, having reference to the facts in evidence: "But if the use of a railroad is exclusively for its owners or those acting under them, if others have no right to be upon it, if they are wrong doers whenever they intrude. The parties lawfully using it are under no obligations to take precautions against possible injuries to intruders upon it. Ordinary care they must be held to; but they have a right to presume and act on the presumption that those in

the vicinity will not violate the laws; will not trespass upon the right of a clean track; that even children of tender age will not be there, for though they are personally irresponsible, they cannot be upon the railroad without a culpable violation of duty by their parents or guardian. Precaution is a duty only so far as there is reason for apprehension. No one can complain of want of care in another where care is only rendered necessary by his own wrongful act. This language is entirely appropriate to the present case, with the added force, derived from the testimony of one of the plaintiffs that the deceased, his son, was a bright, intelligent boy, strong and healthy, and of rather exceptional capacity, and nearly ten years of age. If the rule against trespassers on railway tracks is made to depend upon the intelligence and age of the trespassers it is easy to see that the law upon that subject will very soon become involved in inextricable confusion. Seeing no error in this recordThe judgment is affirmed.

Opinion by GREEN, J.

TRUNKEY and STEVETTE, J. S., dissent.

The questions raised in this case are very simple and do not require elaborate discussion, The following note will therefore be little more than a collection of the most important cases bearing upon those points in order to facilitate the student in examining them.

It seems clear that a railroad company is not liable for injuries inflicted by passing trains upon persons who are walking on the track of the company and who are therefore simply trespassers, unless of course the injury be inflicted wantonly and through gross negligence.

Pittsburgh Ft. W. and G. R. Co. v. Collins, 87 Past 405; Terre Haute and Md. R. R. Co. v. Graham, 46 Md. 239; Illinois Cent. R. R. Co. v. Hall, 72 Ill. 222; Ill. Cent. R. R. Co. v. Hetherington, 83 Ill. 510; McCarty v. Del. and H. C. Co., 17 Hun, 74; Kansas Pac. R. Co. v. Ward, 4 Col. 30; Rothe v. Mil. and St. P. R. Co., 21 Wisc. 256; Cogswell v. Oregon Cent. R. R. Co., 6 Oreg. 417; O'Donnel v. Mo. Pac. R. R. Co., 7 Mo. App. 190; Lang v. Holliday Creek R. R. Co., 42 Iowa 677; Van Schaeck v. Hudson River Ry. Co., 43 N. Y. 527; Richmond and D. R. R. Co. v. Anderson, 31 Gratt, 312; Houston and Texas Cent. R. R. Co. v. Smith, 52 Tex.

178.

Nor does it make any difference that the person may happen to be a child of tender years; for the railroad company cannot reasonably be expected to provide against the contingency of trespasses by them any more than against the contingency of trespasses by adults.

Phila. and Read. R. R. Co. v. Hummell, 44 Pa. St. 375; Morrissey v. Eastern R. R. Co., 126 Mass. 377; Bulger v. Albany R. R. Co., 42 N. Y. 459; Johnson v. Boston and Me. R. R. Co., 125 Mass. 75; McKenna v. N. Y. Cent. and H. R. R. R. Co., 8 Daly (N. Y.) 304; Frick v. St. L., K. C. and N. R. Co., 5 Mo. App. 435; Walters v. Chicago, R. I. and P. R. Co., 41 Iowa 71; Citizens St. R. W. Co. v. Carey, 56 Md. 396; Meyer v. Midland Pacific R. Co., 2 Neb. 319; Manly . Wilmington and M. R. Co., 74 N. C. 655; Schwier v. N. Y. Cent. and H. R. Ry. Co., 15 Hun, 572.

All difficulties of this sort are, however, removed where as in the present case the child is shown to be of sufficient age and understanding to be aware of the danger of trespassing. For the court will always hold children bound to exercise discretion in proportion to their years and intelligence. If they do

not exercise such discretion they or their parents cannot recover for injuries done them.

Burke v. Broadway and Seventh Ave. R. R. Co., 49 Barb. 529; Smith v. O'Connor, 48 Pa. St. 218; Balt., etc., R. R. Co. v. Brenig, 25 Md. 378; St. Paul v. Keeby, 8 Minn. 254; Drew v. Sixth Ave. R. R. Co., 26 N. Y. 49; Ewen v. Chicago and N. W. R. Co., 38 Wisc. 613; McMahon v. New York, 33 N. Y. 642; Ihl. v. Forty second St. and G. St. F. R. Co., 47 N. Y. 317; Reynolds v. N. Y. Cent. and Hudson Riv. R. R. Co., 58 N. Y. 248; Ostertag v. Pacific R. R. Co., 64 Mo. 421; Nagle v. Allegheny Valley R. R. Co., 88 Pa. St. 35; Haas v. Chicago and N. W. Ry. Co., 41 Wisc. 41; Pittsburgh, Ft. W. and Chic. R. R. Co. v. Bumstead, 48 Ill. 221; Donoho v. Tulcan Iron Works, 7 Mo. App. 447.

As to the propriety of granting a nonsuit in the principal case, no doubt can be entertained. This is clearly the proper cause where the plaintiff's own case discloses such a state of facts as does not entitle him to recover.

The following are among the latest cases on this point:

Massoth v. Del. and H. C. Co., 64 N. Y. 524; Cordell v. N. Y. Cent. and H. R. R. Co., 58 N. Y. 451; Del. Lack. and W. R. R. Co. v. Toffey, 9 Vroom. 525; Bonnell v. Del. Lack. and W. R. R. Co., 10 Vroom 189; Allyn v. Boston and Alb. R. R. Co., 105 Mass. 77; Brooks v. Somerville, 106 Mass. 271; Murphy. Chicago R. I. and P. R. Co., 45 Iowa 661; Lake Shore and M. S. R. Co. v. Miller, 25 Mich, 274; McMahon v. Northern Central Ry. Co., 39 Md. 438; Ellis v. Gt. West. R. R. Co., L. R. 9 C. P. 551; Schierhold v. North Beach and M. R. Co., 40 Cal. 447; Cohen v. Eureka Ry. Co., 14 Neb. 376; Brown v. R. R., 58 Me. 384; Trow v. R. R., 24 Vt. 487; Maretta, etc., R. R. v. Porksley, 24 Ohio St. 48; McGuilken v. R. R. Co., 50 Cal. 7; Fleming v. R. R. Co., 49 Cal. 253.

See for some strictures upon the disposition of the Pennsylvania courts to grant nonsuits. The note to Smith v. Hestoe, Mantua and Fairmount Pass. R. R. Co., 2 AM. AND ENG. R. R. CAS. 12.

In the view of the principal case taken by the court, the negligence of the company defendant became a matter of no moment. That it was negligent in running its train at a great speed through the populous streets of a municipality cannot be doubted.

Toledo, etc., R. R. Co. v. Deacon, 63 Ill. 91; c. f. Pacific R. R. Co. v. Houts, 12 Kans. 328; Reeves v. R. R. Co., 30 Pa. St. 454 and vide e contra; Plaster v. Railway Co., 55 Iowa 449; McKonkey v. R. R. Co., 40 Iowa 205. A municipality may, it would seem, pass ordinances regulating the rate of speed of trains through its streets.

Dorraha v. State, 8 Sm. and M. 649; R. R. Co. v. Buffalo 5 Hill (N. Y.) 209; Richmond R. R. Co. v. Richmond, 96 U. S. 521; Whitson v. Franklin, 34 Md. 392; C. B. and G. R. R. Co. v. Haggerty, 67 Ill. 113; C. R. I. and P. R. R. Co. v. Reidy, 66 Ill. 43.

And a failure on the part of the company to comply with the requirements of such an ordinance may be put in evidence to constitute portion of the proof of negligence. Dillon on Munic. Corp. § 713 note. See Jetter v. R. R., 2 Alb. R. (N. Y.) 458; Massoth v. R. R., 64 N. Y. 424; Balt. and Ohio R. R. v. State, 29 Md. 252; Rock Island, etc., R. R. Co. v. Reedy, 66 Ill. 44. See also note to Phila. and Reading R. R. Co. v. Boyer, 2 Am. and Eng. R. R. Cas. 183.

THE BALTIMORE AND POTOMAC R. R. Co.

v.

STATE OF MARYLAND, use of GEORGE W. STANSBURY.

What constitutes negligence is generally a question of fact, and as such is usually submitted to the jury; the Courts being reluctant, where the facts are complicated, and inferences are to be drawn, and the evidence is contradictory, to withdraw such questions from their decision.

But it being the province of the Court to determine the legal sufficiency of evidence, it sometimes becomes their duty (where the main facts are uncontroverted) to decide whether the facts offered in evidence are such as would constitute such negligence in law as would debar the plaintiff's right to re

cover.

Where the uncontroverted evidence proved that the deceased, (to recover damages for whose death the defendant was sued,) was improperly on the track of the defendant, that he voluntarily exposed himself to the peril, with full knowledge of the risk, and might, if he had used his eyes and ears, have seen and heard the approaching train, long before it struck him; and the only material conflict of evidence, was as to the giving of the signals upon the approach of the cars, it was Held:

That the deceased, having directly contributed to his own death, the plaintiff had no cause of action, and it was error to reject a prayer of the defendant to that effect.

APPEAL from the Circuit Court for Baltimore County.
The case is stated in the opinion of the Court.

Exception.—At the trial the plaintiff offered the two following

prayers:

1. If the jury find from the evidence, that on or about the 19th day of June, 1876, Albert Stansbury was killed by the locomotive and cars of the defendant, while operated by its agents on its road, and that the equitable plaintiff, to wit, George W. Stansbury, is related to him in the manner set forth in the declaration, and that the said killing resulted directly from the want of ordinary care and prudence on the part of the agents of the defendant, and not from the want of such care and prudence on the part of the deceased as ought, under all the circumstances of the case, to have been reasonably expected from one of his age and intelligence, nor from the want of ordinary care and prudence on the part of his parents, or either of them, directly contributing to the misfortune, then their verdict must be for the plaintiff.

2. Even if the jury do believe that the said Albert was guilty of

the want of such care and prudence, as ought, under all the circumstances of the case, to have been reasonably expected from one of his age and intelligence, in lying, or sitting alone, or near the railroad track of the defendant, or that his parents (or either of them) were guilty of the want of ordinary care and prudence in allowing him to attend to the cows, in the manner testified to by the witnesses; still, if they further find that the agents of the defendant did not keep a reasonable look-out, and did not give reasonable and usual signals of the train's approach, and did not exercise ordinary care and prudence in the running of the train; and that if they had kept a reasonable look-out, and had given reasonable and usual signals of the train's approach, and had exercised ordinary care and prudence in the running of the train, the killing would not have occurred, their verdict must be for the plaintiff, provided they find the other facts set out in the first prayer of the plaintiff.

And the defendant offered the six following prayers:

1. If the jury shall find that the deceased had the intelligence, experience and capacity to take care of himself, and knowledge of defendant's road, testified to by his father, and was killed under the circumstances and in the mode testified to by the witness, Mrs. Schimmenant, or in the mode, and under the circumstances testified to by the defendant's engineer, then there was such contributory negligence, on the part of the deceased, as will prevent, under the circumstances of this case, the recovery of the plaintiff, and the verdict of the jury must be for the defendant.

2. That there is no sufficient evidence that the injury to the deceased was caused by the negligence, or the want of ordinary care, on the part of the defendant, or its agent, and that, therefore, the verdict of the jury must be for the defendant.

3. That the rules of the defendant, offered in evidence by the plaintiff in reference to the ringing of the bell and blowing the whistle when approaching a road crossing, are designed to give notice to those using such road, and therefore the jury are not to take the same into consideration in determining whether the agents of the defendant were guilty of negligence or the want of ordinary care on the occasion of the injury to the deceased.

4. If the jury shall find from the evidence that the deceased, at the time of the injuries to him, had the intelligence, capacity for taking care of himself, experience and knowledge of defendant's railroad, as testified to by his father and the witness, Mrs. Schimmenant, and that on the day in question he was sitting or lying on the bank, alongside of and near to the track of the defendant's road, at a point about one hundred or one hundred and fifty feet from the crossing of the Sulphur Spring Road, and on the engineer's side of the track, and that the engineer was using ordinary care in keeping a look-out ahead as he was approaching the said point, and was the first person in charge of the train to see the deceased, and