delivered the opinion of the Court, January 23d 1882.
The only evidence in this case, as to the position of the deceased when he was struck, was that given by the plaintiffs’ witness. He testified: “ The boy was on the outer side, on the end of the sleepers, walking at twenty to twenty-five feet north of telegraph pole; he was walking from sleeper to sleeper when I saw him; about a second of time from my sight of him, and when he was struck.” He also said, “ the lad was twenty or twenty-five feet north of telegraph pole when struck. . . . walking on outer edge of sleepers towards Orthodox street. Trees are planted in front of houses; there is a side-walk and trees outside; there is a three or three-and-a-lialf feet walk for passengers 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 side-walk 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 steet, 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 *305no 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 trains, 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 nonsuit. 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. 375, 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, 14 Norris 398, 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 clear track ; that even children of a 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 guardians. 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 plaintiff's 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 railroad tracks is made to depend upon the intelligence and age of the trespasser it is easy to see that the law upon that subject will very soon become involved in inextricable confusion. Seeing no error in this record—
The judgment is affirmed.
Trunkky and Steerett, JJ., dissented.