This was an action for personal injuries, brought by appellant against appellee. The jury found for appellant in the sum of $4,000, and with their verdict returned answers to certain interrogatories. On motion óf appellee, the court gave judgment against appellant, upon the answers to interrogatories, notwithstanding the general verdict in his favor. The complaint was in three paragraphs. The material allegations were: That the appellee company was operating one of its locomotives upon and over one of the tracks of the Union Railway Company, known as the “Belt Railroad/* within the city of Indianapolis, near the intersection of said track with the *588Lake Erie and Western Railroad; that said track had, for twenty years or more, been used by pedestrians to pass back and forth upon, with the knowledge, acquiescence, consent, and permission of the Union Railway Company and of appellee; that near said point was an open common, on either side of the Belt track, whither children were attracted in large numbers by the green grass and cool shade during the summer months, using the same for a playground, and passing upon and over said Belt track at that point with the knowledge of appellee and of said Union Company; that there was no fence or other obstruction to keep children off said track, and no watchman or other person, or notice, or warning, to prevent children or other persons from going upon said track, or walking on the same; that appellee used said Belt track daily for the transportation of its cars and locomotives, and had so used the same for more than twenty years; that the appellant, a boy seven years old being too young to appreciate the danger, or have proper discretion in the matter, and without proper sense to appreciate the danger, without the knowledge of his parents, and without fault upon his part, and without negligence of his parents, came upon said track at a point where the same is crossed by a public highway of said city, and while within said public highway, and in plain view of the appellee, there being nothing to- obstruct the view of appellee’s employes in charge of the locomotive, or to prevent them from seeing the appellant for a distance of 300 feet, appellee negligently ran its locomotive against, on to, and over said appellant, crushing- and mangling his right foot and leg; that there was then in force an ordinance of the city of Indianapolis making it unlawful to run an engine at a higher rate of speed than four miles an *589hour along any track in said city, and requiring the bell on the locomotive to be rung when moving in or through said city; that, at the time of this injury to appellant, the locomotive was moving at a very high rate of speed, fifty miles an hour, and the bell was not ringing, and no signal of danger was given; that appellee’s employes in charge of the locomotive could have seen appellant upon the track in time to stop the locomotive and prevent the injury, but that they negligently failed to look and observe the track ahead of the locomotive, and negligently ran upon and over the lfeg of appellant.
Counsel for appellee admit that the general verdict for the appellant was a finding of all the material facts stated in the complaint. Appellee’s negligence and appellant’s freedom from contributory negligence must therefore be taken as established, unless the answers to the interrogatories are found tó be in irreconcilable conflict with the general verdict. The answers to interrogatories show that, at the time of the accident, the appellant was seven and one-half years of age; that he was a boy, of usual and ordinary intelligence, and of average physical strength and activity, for his age; that he knew that the track, at the place in question, was used to run cars and engines over, and had sufficient intelligence to know that engines and cars were liable to pass over the track, and that, if he remained on the track and an engine or car passed over it, he would be run over and injured; that, just before the injury*, he was out upon the track, playing jackstones; that he sat upon the rail of the track with his feet between the rails, and while so sitting fell asleep; that, when the engine struck him, he was lying with one leg over the rail and his body outside; that the locality where he was hurt was at the cross*590ing of a public highway; that the time was between seven and eight o’clockfin the evening (July 12, 1892), it being still daylight; that neither the engineer nor the fireman, nor any one else on the engine, saw him before he was run over; that the engine was at the time running forward at the rate of ten miles per hour, and the bell was not ringing; that the engineer was looking out ahead, but the fireman was not.
Counsel for appellee, in seeking to uphold the judgment, upon the interrogatories, notwithstanding the general verdict, bases his defense of the court’s action upon the contention that the appellant, at the time o.f his injury, was a trespasser. upon appellee’s right of way. We are inclined to think this contention is untenable. The accident occurred in the public highway. There the appellant had the same rights as the appellee. His right upon the common crossing was equal to that of. the appellee, with the sole, exception that, when both approached the crossing, appellee had the prior .right, of passage with its cars. Appellant might walk or drive or play upon the highway, just as he pleased, provided only, he did not obstruct the passage of others desiring to travel along the same road. The time is not yet come when American boys will be considered as trespassers merely because they go to play upon the streets or public commons. This is particularly true where, as in the present case, the population is dense, and the children have nowhere else to play, except in close rooms or scanty yards. There may be negligence in going upon the highway, whether to walk, or drive, or play, and whether the person be an adult or a child, but there is no trespass. One who goes upon the highway must guard against injury to himself, occasioned with or without the fault of others, who have an equal right to be upon the same highway. He will not, however, be a trespasser, *591even if a boy, and playing jackstones on the highway. See the well considered case of Louisville, etc., R. W. Co. v. Sears, 11 Ind. App. 654, and cases cited, at p. 670. In City of Indianapolis v. Emmelman, 108 Ind. 530, one of the cases cited, a child five.years of age, playing in thp street, fell into an unguarded pit. It was there said by Judge Mitchell: “It [the pit] was made in the bed of a shallow stream, and left alone unguarded on a July day, with knowledge that children were accustomed to play in the vicinity. The city must be held to know that children are attracted to such a place in July weather. They were not intruders.” See, further, McGuire v. Spence, 91 N. Y. 303, at p. 306.
While, therefore, in the case at bar, the appellant and the other boys, his companions, had an undoubted right to go upon the street, and whil'e the appellee was confessedly guilty of negligence in running its locomotive through the city .at a speed forbidden by the ordinance, and without ringing the bell of the engine, as required by the ordinance, yet we are persuaded, from the answers to the interrogatories, that the appellant, notwithstanding his tender youth, was him-, self guilty of contributory negligence in sitting upon the rail of the track and lying down to sleep with his leg across the rail. We think he is shown to have had sufficient appreciation of the danger he thus incurred. He was seven and one-half years of age, and, as the jury find, was of ordinary intelligence and average strength and activity, for that age. Moreover, they find that he had sufficient intelligence to. know that engines- and cars were liable to pass over the rails where he sat, and that, if they did so pass along, he would be run over and injured. Had he been standing on the track when the locomotive was coming, he might have thought he could be quick enough *592to get off, or even to run clear across the track, before he could be caught. That might be the natural result of boyish presumption and inexperience; and, if he had been injured in such a case, we think the company, owing to its own negligence, would have been liable. But to sit upon the track to play, and to lie down there to sleep, with one leg over the rail, seems such a reckless and foolhardy act, that, as we think, a boy found to have sufficient intelligence to comprehend the danger must be held culpable for incurring it. We are consequently of opinion that the court was justified, from the answers of the jury to the interrogatories submitted to them, in'holding that appellant was guilty of negligence contributing to his own injury. The judgment is affirmed.
McCabe, J., dissents.