(dissenting.)
Still holding the views I expressed in Couch v. Railway Co. 45 W. Va. 51, (30 S. E. 147), I must say I would/ reverse the judgment. The company is held liable because it did not keep a sufficient lookout to discover persons on its track. The great volume of decisions agrees with 3 Elliott, R. R. section 1257, that “it is generally,, and, we think, correctly, held that a railroad company is not bound to keep a lookout for tres-nassers on the track.” 19 Am. & Eng. Enc. Law, 935; Ward v. Pacific Co. (Or.) 36 Paer 166; Burg v. Railroad Co., (Iowa) 57 N. W. 680; Spicer v. Railroad Co. 34 W. Va. 514, (12 S. E. 553); 2 Wood, R. R. section 320; Railroad Co. v. Dunnaway's Adm'r, 93 Va. 29, (24 S. E. 698). Under this rule, the company could not be made liable, as this rule only requires that, after discovery of the child, the trainmen shall not willfully injure it, but do all in their power to save it; but the company is held liable because the engineer could and should have, by a lookout, sooner seen the child. I admit that the West Virginia law requires this lookout as to children. Admitting the West Virginia rule, as the law elsewhere is different, I think we ought to have a plain case to make the company liable for a misfortune occurring in the lawful use of its property in the work enjoining upon it by the public franchise. Admitting the West Virginia rule', I say the company is not liable. Why? The plaintiff must -clearly show negligence. He must show clearly that a lookout would have revealed the child in time to save it. *360I say that no evidence makes it appear, with any degree of certainty, that it was on that track to be seen in time. It had been gone fifteen minutes. The day before it was lying by the side of the track playing in the sand. It was fifteen months old, just beginning to walk, — could scarcely walk. How likely, then, that, hearing the train, it \¡suddenly got on the track, when the train was one hundred and fifty or two hundred yards away. As it could not walk, likely it ¡crawled on the track. When? We cannot say. Take the uncontradicted evidence of the engineer, and he seems fair and intelligent, and the fireman says the same. The child was in a cut at seven o’clock p. m. in July. The engineer says: “I don’t know that I could prepare the language to express my position at the time the accident occurred or just before. I want to state, as the jury knows, there is a mountain, which is higher there at the bars than it is on this level, straight track above there. The sun was about ten or fifteen minutes high over the top .of the mountain. That straight track is five hundred and fifty-five yards long, and! about three-quarters of that distance was shaded. It shaded that part of the track whetre the child was at, and also shaded the track up about half way to that cinder pit. The sun was shining not exactly to the front of me, but a little to the right, on the two steel rails. A train, runs over these rails every two or three hours in the day, and they are therefore polished up so. that they glitter and glisten in the sun the same as a looking-glass would, and the rays of the sun reflecting on these rails penetrate the eyes, and! has the same effect as if it were '^hin-, ing on a looking-glass, and it is blinding. You cannot] see through these rays of t>he sun into a shade, aipid see. an object. If the sun had been .shining on the track clear up to the spot where the child was, I could have seen it sooner, or if it shad been shady where I was, om a straight line, I could have seen it better; but, looking through these rays penetrating from the rails into a shady spot, you cannot see an object. It is impossible. When I got down to the cinder pit, my fireman said, What is that, Jim?’ and I looked, and I saw something on tibe track, but thought, at first, it was a red rooster. It must have been down on its hands and knees, for that second it raised up, and I said, ‘My God, it’s a child!’ At the same moment I threw *361off tbe steam, grabbed the air brakes, and threw it around, grabbed tjhe whistle, and ‘toot! toot! toot!’ three or four times. I grabbed the reverse lever with my left hand, and the throttle with my' right, and then worked the sand lever backwards and forwards. T. did all I possibly could to stop the train. Gentlemen, if it had been my own child at that time 1 could not have done more. Every mechanical appliance I had at my command was put into emergency. * * * It looked to me like a red rooster. It was down on its bands and knees, and at that time the fireman said, ‘What’s that, Jim?’ and it raised up about that time, and if it had been on tihe track before that time I think I could have seen it, if it had been standing up. It must have crawled onto the track just at that time.” The fireman said the cjhild was on its hands a¡nd knees when he first saw it, and looked like red paper. It had on a red dress. Their uncontradicted evidence-shows that they did not, most likely could not, by diligence, see the child till within one hundred and fifty or two hundred yards of it, if it was on the track even, the train running forty-five to forty-eight miles an hour. Passengers tell of the sudden shock from efforts to stop the train,showing the suddenness of discovery of the child, and the great effort to save it. Both engineer and fireman swore they kept a careful lookout. Only conjecture will assert that the baby was on the track or standing up so as to be seen. The verdict has no sound basis, and is against evidence of witnesses discredited only because they were employes of a railroad, and is the verdict of mingled sympathy and prejudice.
I do not think that, in any view, the plaintiff can recover, as ¡he is father of the child, and gets the recovery, and is guilty of negligence in not watching and providing against accident. His house was fifty yards from the railroad. He and his wife both knew the child was just beginning to walk, and would be disposed to go to the track, It did go the day before to the sand by the track, and play tjhere ten or fifteen minutes, before it was taken away. The bars at the track were either usually down, or, if not, the lower bar was twenty inches from the ground', so the child could crawl under. This very day the child was on tbe porch with the father, and he saw the child slide off the *362porch, and go around the house, as he says, and he talked on to some one there, and paid no attention to the child, thinking she had gone to the kitchen. This shows that he noted her absence. Parents are watchful of children of this age usually, especially when there is known danger at hand, and a child can so easily get to that danger, — a railroad', with trains passing any moment. W)hen the child is itse’f alive, and sues for damages, the negligence of the father is not imp.utable to it; but where it is dead, and the father is the sole beneficiary, his negligence prevents recovery, as I stated in Gunn v. Railroad Co. 42 W. Va. 676, (26 S. E. 564). I cite the following additional authorities: City of Evansville v. Senhenn, (Ind. Sup.) 47 N. E. 634. In that case, as also in 7 Am. & Eng. Enc. Law (2d Ed.) 449, note 2, it is stated as clear, in all jurisdictions, that where the parents sue their negligence bars. Note in Railway Co. v. Schuster, (Pa. Sup.) 57 Am. Rep. 474 (s. c. 6 Atl. 269); City of Peken v. McMahon, (Ill. Sup.) 39 N. E. 484; Patt. Ry. Acc. Law, 76; Williams v. Railroad Co., 15 Am. & Eng. R. Cas. 403. This case is exactly like Grant v. City of Fitchburg, 160 Mass. 16, (35 N. E. 84), where the mother of a child twenty months old saw it fifteen minutes before the occurrence at the gate on a street, and went on talking with another woman in the rear of the ¡house, and it was killed by falling into a hole in the street. The administrator was denied recovery because of the mother’s negligence. The child had been on filie street the day before, and had to be brought home. It was a greater negligence in the father of this child to allow it to go- on a great railroad, with trains passing any time, than to allow that cihild to go into the street. How can the father blame, when, knowing the danger, he paid) no care to the child? 1 Shear. & R. Neg. section 72 (5fih Ed.), says that people, though poor, must take care of children; and that the question is “whether the plaintiff took as much care of the child as reasonably prudent persons of the same class and with the same means ordinarily do.” Now, it required no wealth or -nurse to-guard this little child from going to play in the sand at the railroad, — a known danger, known to be within its reach.. It was gross neglect not to pay the ordinary care given by every person to a child walking in the presence of a yawning danger. A parent of limited means must do all that can *363reasonably be expected from one in bis condition-” Beach, Oontrib. Neg. section 142 (3d Ed.). Was it not within the parentis ready means and ability to see to this little one on this particular occasion? He was at leisure. Hardily a plainer case of negligence could be put.
Judge Ekglish concurs with me.Affirmed iy Divided Court.