dissenting.
Aside from the facts stated in the official report, it is only necessary to refer to what in the treatment of the questions made in this cause, both by the majority and *170myself, is an accepted fact; and that is, that the plaintiff, at the time of the infliction of the injuries complained of, was a child of too tender years to be chargeable with negligence on his own account. This admission obviates a discussion in justification of the finding of the jury in so far as it found that fact in his favor. Dealing with him as a person wholly irresponsible and chargeable -with no measure of diligence for his own safety, we are to consider what are the relative rights of the person injured and the relative duties of the defendant company. It may be stated as fundamental, that under the provisions of the code, a railroad company in the running and operating of its trains, at all times, at all places, owes to all persons, at least, the duty of ordinary care. This is a necessary deduction from the code provision which from the proof of injury raises a presumption of negligence, and places upon the company the burden of proving ordinary care. For if the duty was not imposed by statute, the presumption could not arise. Just what amount of vigilance constitutes ordinary care is necessarily a question of fact, and cannot in the nature of things be measured by any standard which in advance can be prescribed by law; and hence such are questions to be determined by a jury. So far as this particular case is concerned, it would make no difference whether this child was a licensee or not, whether he was in the position where he was injured by permission of the company or not. Being of too tender years to. be chargeable with negligence, he was wanting in capacity to become a wilful trespasser, and therefore, is to be judged by the same rules as would apply to any animate, though irrational, object injured under like circumstances. Let us suppose that instead of being a human being he had been an ordinary domestic animal, and being injured the owner had brought suit to recover, what would it have been necessary for him to prove? It would have been necessary only to prove ownership, value, injury. In order to rebut the *171presumption it would have been necessary for the defendant company to show that its servants were in the exercise of ordinary care; and this has been frequently held to involve proof that its servants were on the lookout, that in that respect they were not negligent, that they did not see and could not have seen the animal injured in time to prevent the injury, and that after the danger became apparent they used all ordinary and reasonable means to' prevent the catastrophe. It would be no reply to the action to say that the animal had no right to be at the point injured, for it has been held by this court that even in those districts where it is unlawful for animals to run at large the duty of the company to taire precautions to prevent injury to them is not thereby lessened. So with the child injured in the present case; as to one of his mental capacity it would be no reply to say that he had no right to be where he was injured; being irresponsible, he was under no duty to look out for his own safety; and therefore the company could not avoid a recovery by showing that he was negligent, but only by showing that its servants, at the time of the injury, were in the exercise of ordinary care. In the present case, however, not only was the person injured not a trespasser, but he was in the dangerous position of walking among its tracks by permission of the railroad authorities, and was injured at a time during the day when the company must have known, from experience and observation extending over many years, that many children of his tender age were wont to be at that place, and exposed constantly to the very dangers into which, in consequence of their youth, they were likely to be allured; and yet when under these circumstances one of them is injured, and the company offers no excuse by way of evidence showing diligence upon its part, it is said that to require proof such as would be necessary to shield it if the action were for injuries to an animal, is to impose upon it the duty of extraordinary care. No diligence at all was shown upon *172tbe part of the defendant company; and yet, in the face of the statute imposing upon it the burden of proof in such cases, it is held that no recovery could be had. Upon the principle of the turntable cases, which are familiar to the profession, I am content to rest my individual judgment that the law of the case was with the plaintiff. The facts the jury found with him; and upon these two propositions it is, with the greatest deference for the opinion of my learned brethren, earnestly submitted that the judgment of the trial com’t, approving the finding of the jury and denying a new trial, should be permitted to stand.