On Petition por a Rehearing.
Elliott, C. J.In their brief counsel for appellant say r “We desire a rehearing and modification of the opinion in three particulars:
“ 1st. The ruling of the court on the question asked of the juror.
“ 2d. The boy in this case was of sufficient age and experience to be held responsible for the acts committed by him, if he himself were the plaintiff; and as the father is plaintiff he is not in as favorable a position as the boy would have been.
“ 3d. There was no negligence on the part of the conductor of the passenger train, proximately causing the injury; and as the boy was a trespasser on the track, there was no unperformed duty on the part of the employees in charge of the freight train which caused the injury.”
The first point is disposed of by the case of Johnson v. Holliday, 79 Ind. 151, cited in our former opinion. We have no doubt that we were right in holding, as we did in that case, that the record must contain, not the single question and the one answer of the juror, but his whole examination. It may well be that other questions and answers would show that no injury was done the appellant. This must be presumed, for it is as plain a rule of law as there is in all the *192books, that an appellant must affirmatively show error in the rulings of the trial court, for, until the contrary is shown, all reasonable presumptions are indulged in favor of those rulings.
' We are at a loss to ascertain what is sought by the appellant, for, aside from the proposition just disposed of, we decided but two others, one of these was in its favor, and the other, which was against it, was that the complaint was good. These were the only points decided, and, of course, the only ■conjecture we can make is, that the appellant is dissatisfied ’ with our ruling upon the complaint, for the general abstract statements made in the counsel’s brief do not enable us to very clearly comprehend just what it is that they find fault with. We were careful to say in our former opinion that we did not place our decision upon the wrongful act of the conductor in putting the child off of the train, without consigning him to the care of any one, but “that the conductor’s want of care must be taken in conjunction with the wrong •of the engineer and those in charge of the freight train, in negligently failing to stop the train when it was within their power to do so before it ran upon the child. These two leading facts,” we said, “ when combined, make a case establishing negligence on the part of the appellant.”
It thus appears that our decision rested on the entire complaint and not on a part of it. As it seems that counsel misunderstand that part of the complaint which describes the manner in which the child was killed, we set it out: “ Said child having been thus wrongfully and negligently put off of said train at said point as aforesaid, without being placed in the control or in the custody of any one, and without the fault or neglect of his parents, he, the said Arthur Pitzer, was casually upon the track of said defendant at a point on the line of said railroad, at or near a public highway crossed by said railroad track, about one and one-fourth miles north of said Jackson station ; that at said ■time, which was between the hours of four and five o’clock *193p. it., said defendant was running a locomotive and freight train, which was coming from the south; that while said Arthur Pitzer was upon said track at or near the crossing of said public highway, and on the north side thereof, he could have been distinguished by the servants, agents, and employees of said defendant, then running said locomotive and train of cars, for a distance of three-quarters of a mile, within which distance said locomotive and cars could have been easily stopped, said track being up grade to said crossing from the point where said Arthur could have been distinguished as aforesaid, but that said defendant, its agents, servants and employees, wrongfully, negligently and carelessly, without giving any signal or warning, or in any way attempting to stop said train, and while said child might have been and was seen by the defendant’s agents, servants and employees then running said train of cars, ran said locomotive and train of cars over the said Arthur Pitzer.”
We think the case presented by the complaint an unusually strong one, and far within the authorities. If the employees ■of a railroad company see a child of seven years of age upon the track,far enough off to easily stop the train, but, instead of stopping it, negligently run upon it and crush it to death, then, upon the clearest principles of justice and right, the company is liable. In our former opinion we cited many cases sustaining that conclusion. But in this case we have the further element that the conductor put the child off at a station, unattended and uncared for, and without commending him to the care of any person.
We did not depart from our own decisions in affirming, as we did, that more care is required where a child of tender years, or a helpless man, is seen upon the track, than where one who has reached the age of discretion, and appears to be in possession of his faculties, is seen on the track.
In the case of Pittsburgh, etc., R. W. Co. v. Vining, 27 Ind. 513, a child of seven years of age was treated as too young *194to be guilty of negligence, and a complaint not nearly so strong-as the present was held good. Lafayette, etc., R. R. Co. v. Huffman, 28 Ind. 287, does not at all conflict with our conclusion. On the contrary, it gives it strong support, for it was. there said: “ Thus, if an engineer of a locomotive discovered a young child on the railroad track, he would be required to use greater effort to stop the train than could have been expected from him if he had discovered a grown person in the-same situation. In the latter case, he could reasonably depend more upon the judgment and presence of mind of the person on the track to save himself from danger than in the former case.”
Surely the appellant can not get any support from the doctrine of the case cited. It might doubtless do so, if the complaint did not negative negligence on the part of the child’s parents, but this is expressly negatived in the complaint before us. In the case of Hathaway v. Toledo, etc., R. W. Co., 46 Ind., 25, a recovery was denied because there was contributory negligence; but in this case that is expressly negatived. The complaint in Jeffersonville, etc., R. R. Co. v. Bowen, 40 Ind. 545, was not so strong as the present, and the court said that it could see no objection to it. In Binford v. Johnston, 82 Ind. 426, this court asserted that the same rules were not applicable to children as to adults, and the assertion was supported by the citation of many authorities. This principle is also recognized in City of Indianapolis v. Emmelman, 108 Ind. 530.
Turning now to the cases cited by the appellant from other courts, we find counsel saying: “ In Scheffler v. Minneapolis, etc., R. W. Co., 32 Minn. 518, a child eighteen months of age was killed. Hold, the -child was a trespasser, and the company was not required to anticipate that it would be on the track.” But a moment’s reflection must produce the conviction that this doctrine can not apply to a case where the-child was seen and distinguished. That we are right in our interpretation of that decision is apparent from the language-*195employed by the court in the case referred to, for it was said: “ If the engineer had seen him, and then had not exercised proper care to avoid striking him, there would have been a different case. Locke v. First Division St. Paul, etc., R. R. Co., 15 Minn. 350.”
In the case of St. Louis, etc., R. W. Co. v. Freeman, 36 Ark. 41, the decision, so far as it concerns the question here-under discussion, is against the appellant, for it was there held that the company was not responsible, “ unless the trainmen, after discovering the child, omit the use of reasonable precaution to av'oid the inj ury.” Here the company is responsible, because after having seen the child, they used no precaution at all, although the train might have been easily stopped. The decision in Prendegast v. New York, etc., R. R. Co., 58 N. Y. 652, is also against the appellant, for, to quote the language of the case, “ a child of such tender age was clearly non sui juris, and his conduct therefore presented no bar to a recovery. Ihl v. Forty-Second Street, etc., R. R. Co., 47 N. Y. 317.”
In the case cited by the court in the quotation we have made, the child fell upon the track at a sufficient distance in front of a street car to have enabled a sister, who was with her, to have extricated her, “ had the driver,” to use the language of the court, “been observant of what was passing and slackened his speed.” And it was held that “ The conduct of the infant may have an important bearing on the question of the defendant’s negligence, but when the latter is clearly negligent, contributory personal negligence on the part of an infant obviously not sui juris can not be alleged, unless negligence on the part of his guardian or custodian has brought about the situation, or in some manner contributed to the injury. Mangam v. Brooklyn R. R. Co., 38 N. Y. 455, 460.”
In the case cited by the court in the extract just given, it was held that there was a difference between children of tender years and adults, and the cases of Hartfield v. Roper, 21 Wend. 615, Robinson v. Cone, 22 Vt. 213, and Daley v. *196Norwich, etc., R. R. Co., 26 Conn. 591, were cited. It appears, therefore, that when we get to the foundation of the New York case cited, it is against the appellant instead of in its favor upon the material point here involved, namely, whether the trainmen had the right to expect the same care of a child of tender years as from an adult. In the other New York case cited, a boy, described by the court “as a bright, active boy, about seven years of age, considered competent by his parents to go to school and upon errands alone,” attempted to run across the track in front of a train approaching a crossing over which he had often gone, and it was held that there could be no recovery. It is obvious ■that there is a wide difference between that case and this, where the boy was seen on the track in time to stop the train, and where negligence on his part and on that of his parents is directly negatived. Cauley v. Pittsburgh, etc., R. W. Co., 95 Pa. St. 398 (40 Am. R. 664), was a case in which boys got upon a car, and when ordered off by the conductor, while the train was in motion, leaped from it and one was injured. Of this case it is, perhaps, enough to say that it is not in point, but it may be added that it is in direct conflict with many cases, and certainly with one in the same court. Baltimore, etc., R. R. Co. v. Schwindling, 101 Pa. St. 258, simply decides, what we strongly asserted in our former opinion, that the railroad company is not liable for an injury to a child on its train as an intruder, because of any negligence in the construction of the road or machinery.
In Marcott v. Marquette, etc., R. R. Co., 49 Mich. 99, the decision was the third one in the case, but it does not touch the point here involved, for it was decided upon the ground that the child was not seen, the court saying : “ The engineer was watching the track for obstacles and discovered none.” When the "case was in the court the second time, it was held that “ The lookout upon a locomotive must be as efficient as the circumstances require, and especially so when the chances of access to the track are greater than usual.” Marcott v. *197Marquette, etc., R. R. Co., 47 Mich. 1. This doctrine is clearly hostile to the appellant’s views, and is in harmony with the ruling in Lake Shore, etc., R. R. Co. v. Miller, 25 Mich. 274, cited in our former opinion.
The decision in Chicago, etc., R. R. Co. v. Stumps, 69 Ill. 409, does not by any means support the appellant’s contention. In that case a boy seven years of age climbed on a train and was injured. It was held that there could be no recovery, because there was no negligence on the part of the company, but the court said : “ The proof shows appellee was only seven years of age when he sustained the injuries. He was too young to be charged with negligence, and could be held to no care other than such as a child of that age could be expected to exercise for its personal safety. The principal question in the case, therefore, is, whether the employees of the-company were guilty of culpable negligence in the management of the train.”
In Bishop v. Union R. R. Co., 14 R. I. 314 (51 Am. R. 386), a boy of six years of age wrongfully jumped on a moving car, and was injured in leaving it. It was held that the company was not liable, because the boy was an intruder, and it appeared that, as the court said, “ the driver did not see the boy, and knew nothing of the accident.” It is impossible for us to perceive what application that case has to the present.
In Morrissey v. Eastern R. R. Co., 126 Mass. 377, a child not seen by the engineer was run over, and it was hold that the company was not liable, the court saying: “ The defendant corporation owed him no duty, except the negative one not maliciously or with gross and reckless carelessness to run over him.” It is apparent from the cases decided by that court, and cited in our former opinion, that had the child been seen in time to have stopped the train by the exercise of reasonable care, the company would have been held liable.
The decision in Chicago, etc., R. W. Co. v. Smith, 46 Mich. 504 (41 Am. R. 177), was placed entirely upon the ground *198that there was no negligence on the part of the railway company, the court saying: “ In other words the injury resulted from an accidental fall of the boy and without any carelessness or negligence of the company’s servants.” It is evident from the cases cited in our former opinion, that the Supreme Court of Michigan is far from sanctioning the doctrine asserted by the appellant, and it is perhaps unnecessary to refer to other decisions in that court, but if there were doubt on this subject it would be removed by the opinion of the court, written by Judge Cooley, in East Saginaw City R. W. Co. v. Bohn, 27 Mich. 503. In that case it was held that it was not enough for the conductor of a street railway car to warn a child not to ride on the platform, but that he must employ more efficient means to remove him from danger. The cases of Hargreaves v. Deacon, 25 Mich. 1, City of Chicago v. Starr, 42 Ill. 174, and Hughes v. Macfie, 2 H. & Colt. 744, are not in point, for they belong to an entirely different class of cases from the present.
We have thus patiently, and, perhaps, at unnecessary length, reviewed all of the cases cited by appellant, and find that not one among them all supports the proposition, that where a child is seen upon the track in tipie to easily check the train, he may be run over and killed without any effort to stop the train.
The authorities, as we feel confident in affirming, all agree that there is a difference between children of tender age and persons old enough to possess judgment and discretion. We sought to make this distinction, prominent, for we thought, and still think, that it is of controlling importance. An adult, it may be presumed, will, after warning, leave the track when danger approaches, but this is not presumed where very young children are on the track of a railroad. Where a young child is on the track, it can not be presumed, as in the case of an older person, that he will leave it in time to avoid an approaching train. Under the authorities, it is probable that this complaint would not have been good had Arthur Pitzer *199been old enough to be presumed to exercise judgment and discretion j but it is good, because he was a child of tender years. It was necessary, therefore, to emphasize, as we did, his age, for, had he been of mature years, it might, perhaps, have been presumed by the trainmen that he would have left the track in time to escape the approaching train. But we are not here ■dealing with the case of a person who had arrived at years •of discretion, but with the case of a young child, and we •decide nothing that can be considered as applicable to any -other case.
Ve think it very clear, upon the whole complaint, that the damages laid are the proximate result of the appellant’s tort. We are also of the opinion that there is such a connection between the conductor’s tort in putting the child off of the train, and the wrongful acts of the other employees of the appellant, as makes it proper to unite these acts in one complaint. We are clear, that, upon all the facts pleaded, the ■complaint makes a case entitling the appellee to compensatory, but not exemplary, damages.
Petition overruled, at the costs of the appellant.
Piled Jan. 12, 1887.