delivered the opinion of the court.
Under the plea of the. general issue, the railway company gave notice of its purpose to prove that, at the time of receiving the injury for which a recovery was sought, the plaintiff below, was lying upon the track of the railway of defendant, and that she was possessed of unusual precocity of judgment, and of discretion sufficient to make her presence upon the track a trespass, and was, in consequence thereof, guilty of contributory negligence. The evidence seems to fairly support the defense set up in the plea and notice.
This view leaves the litigation to hinge upon a single question, viz.: After seeing the girl on the guard-rail, did the engineer on the train do all in his power to avert the injury ? To put it m another form: After seeing the girl, was the injury wilfully or wantonly inflicted? If this inquiry must be answered affirmatively, judgment should have gone for plaintiff’ below, but if not, the judgment should have been otherwise.
Being a trespasser, the engineer’s duty to her was measured and covered by his abstention from wilful or wanton negligence; he Avas not bound to do every thing in his power to check or stop his train, until he saw the child' and her peril. Until he saw the child and her peril, he owed her no other or greater duty than that due any trespasser whatever. Only when the engineer sees the trespasser is a child, is he brought under a rule of greater care and caution.
That the engineer is shown to have done all in his power to save the child and avert the injury, after seeing her to be a human being, is plainly apparent from his testimony. He *640first saw the child when she raised her head, upon his whistling for the Georgia Pacific crossing, and he was then within about fifty yards of her. It is undisputed that the train, running then at twenty-five miles an hour, could not have been stopped by any human appliances in time to avoid the collision.
But it is contended (and this contention prevailed in the trial court) that when the engineer saw, at sufficient distance to have checked and stopped his train, what he thought was a dog, or a bundle, or something of that character, he, in contemplation of law, saw the child; that, seeing what appeared to him to be a dog or a bundle lying on the track, he was under obligation to check or stop his train, and examine and make sure what the seen object was.
It is to be said, first, that the engineer does not seem to have entertained any doubt as to the character of the object; he wag not debating whether the thing lying on the track was or was not a human being. He appears, from the evidence,- to first have had no thought tha.t the seeming dog or bundle was a child when the actual knowledge of the horrible truth broke upon him, within fifty yards of the prostrate and motionless girl. Running at a high rate of speed, down a straight track, under a midsummer’s afternoon sun, his vision rendered less clear by the glimmering radiation from the rails, it does not seem to us incredible that a small girl, lying flat on the track, was not at first seen to be a human being, and not a dog, or bundle, or something of that character.
The action of the court below, on the instructions for the respective parties, constrained the jury to hold the defendant company liable for the failure of the engineer to check or stop his train when he first saw an object, which he then thought to be'something other than a human being, but which, at length, was discovered to be a child. The test of responsibility is, did the striking of the child by the train occur after the engineer had seen — not might or ought to have *641seen — that is, discerned or distinguished, the girl. Until the girl had been seen — discerned to be a human being — the engineer was under no obligation to the trespasser to check or stop his train, whatever may have been his obligation to the passengers who were being .hauled by him. When the engineer is made aware of the presence and peril of á trespasser, by seeing him, he will wilfully or wantonly do him hurt at the peril of his employer; but, until made aware of the presence and .peril of the trespasser, there could not be wilful negligence or wanton misconduct toward the unrecognized, undiscerned trespasser.
The action of the court below in giving the second instruction asked by the plaintiff, and in refusing the fifth, sixth, eighth, ninth and tenth instructions asked by the defendant, was in conflict with the foregoing opinion, and the judgment is, therefore,
Reversed, and cause remanded for a neiv trial.