(dissenting) :
I can not concur in the opinion of the court. In my view it is not supported either by our own cases or some of those cited in the opinion from other states.
The opinion overlooks very important facts, strongly bearing •on the rights of the parties, and which can not be properly ignored in any just disposition of the case. The record shows that while the side track is located on the private grounds of defendant, it likewise appears that on each side of this side track, and the public road paralleling it on one side, and the railroad of the Kanawha and Michigan Company paralleling it on the other, defendant had built for the use of its employees some fourteen or fifteen dwelling houses; with some intervening buildings; and that west of these was its power house, and its tipple, and the railway station. The infant plaintiff lived with its mother and its grandfather, the latter an employee of defendant, in house No. 1, the westernmost of the mine houses, located on the north side of these tracks and the public road, and only about one hundred and fifty feet from the point on the side track where plaintiff was injured. All the other houses were occupied by families of employees of defendant company, some if not all of them, having small children, and of which defendant, as the evidence shows, had notice. The locations of these houses, opposite each *717other, on either side of the public road and the railway tracks, was such as to- put defendant on notice that the occupants of these houses would naturally, if not necessarily, cross the side track in visiting and communicating with each other. Besides there was some evidence of be’aten paths across and upon the side track. Defendant had created these conditions at the place where plaintiff was injured, and thereby voluntarily assumed upon itself such duties and responsibilities as the law imposes, in operating its side track railroad.
The evidence moreover shows reckless disregard by the servant of the defendant in operating the car that injured plaintiff. He admits that before starting the car down the incline he took no pains to look ahead for objects on the track; that he got on the car at the rear end, and did not go in front where the brake was, or keep any kind-of lookout ahead, and did not know that he had run over and injured plaintiff until after he had reached the coal tipple, although he was called to by the mother of the child, running towards it, in the direction of the moving car, from where she. had been at work, at a neighbor’s, on the south side of the track; and also by a Mrs. Canterbury, who had charge of the child, standing 'with another child in arms on the porch of house number 1, on the north side of the track; and urging on the pursuit by a small boy six years old sent by her to rescue the plaintiff from the impending danger. It is admitted that at the rate the car was moving it could have been stopped within from five to six feet, and the evidence of some of the witnesses is that plaintiff could have been seen on the track some ninety feet ahead of the ear when it was started down the grade.
Under these facts and circumstances -did defendant owe plaintiff no duty to keep a lookout? The opinion of the court answers, Ho, that the only duty owed him was the negative one not to wantonly and recklessly injure him, when discovered on the track. T can not so hold. The opinion concedes that this negative duty is not the full measure of responsibility of a railway company operating trains for long distances; that there is then a positive duty to maintain a reasonable lookout on its private right of way for helpless persons and dumb animals. So says Gunn v. Railroad Co., 36 W. Va. 165; Id. 42 W. Va. 676, and Bias v. C. & O. Ry. Co. 46 W. Va. 349, and other decisions *718of this Court. What reason or authority would excuse a coal company operating a side track through a village, as in this case, from keeping a reasonable lookout for helpless persons, though technically trespassers ? If as our cases hold such a duty is imposed on a railway company running fast trains, the same duty may with greater reason it seems to me be required of a corporation operating a side track in a village, where it has reason to anticipate the presence of. helpless persons. Its servants have no paramount duties to distract them, as in the case of trainmen operating fast running trains, at long distance. ‘
The general rule, erroneously applied in the opinion, that the owner of private property owes no duty to a trespasser, though not controverted, I think inapplicable to the facts in this case. Nor in my opinion is its application here supported by our cases of Ritz v. Wheeling, Dickens v. Liverpool Co., Uthermolen v. Boggs Run Co., and Conrad v. Railroad Co., referred to. In neither of those cases, unless it be Diclcens v. Liverpool Company, did the negligence of defendant relied on constitute active negligence on the part of defendant, as distinguished from passive negligence, particularly illustrated in the case of Ritz v. Wheeling, where the injuries were sustained by plaintiff through the condition of the premises, “without the immediate intervention of any human agency save his own.” This distinction, though inapplicable to that ease is clearly drawn in Savannah, F. & W. Ry. Co. v. Beavers, (Ga.) 39 S. E. 82, opinion by Judge Fish, a case quoted from and much relied on by Judge BRANNON in Uthermolen v. Boggs Run Co., supra. The fact that in the case at bar, as in Gwm v. Railway Go., and other cases, defendant was charged with negligently bringing force to bear on plaintiff by a positive act done after his entry on defendant’s premises — a negligent act of commission, is what distinguished this class of cases from those of passive negligence, where the injury is not the result of the immediate act of negligence of defendant. In Dickens v. Liverpool Co., the proof showed that the child was injured on the private grounds of defendant, by being run over by a salt oar drawn by a mule in charge of a driver, no- lines being used. The driver was on a return trip from the salt shed to the salt house of defendant. The driver was on the car looking ahead, and as soon as *719be discovered the child he called to the mule and did all he could to stop the car and save the child, and actually did get to it in time to save its life, but nob in time to save the wheel of the truck from passing over its foot. How different that case is from this! I do not deny that there are many decisions supporting the opinion, some of them are cited. But this Court in the cases referred to is committed to a different rule.
The distinction I contend for is perhaps best illustrated by the ease of Smith v. A. T. & S. F. Rld. Co., 25 Kans. 738, a case practically on all fours with the case at bar, opinion by Valentine, Judge, concurred in by so distinguished a judge as Mr. Justice Brewer, late a distinguished member of the Supreme Court of the United States. That case distinctly holds that the question whether defendant was guilty of negligence in injuring the child on the track was a question of fact for the jury and not one of law for the court. The class of cases’to which the opinion of the court would now commit us, as well as those of the contra class including our case of Gunn v. Railway Co. and Bias v. C. & O. Ry. Co., supra, are collated in a note to Southern R. Co. v. Chatman, 4 Am. & Eng. Anno. Cases 675, 680, and supplemented by a similar note to Palmer v. Oregon Short Line R. Co. 16 Id. 229, 247, both cited in the opinion of the Court. I refer to these notes. The rule of the contra class of cases is the reasonable and humane one. The other, when applied to cases like the one we have here, is cruel and inhuman, and a reproach to the law. I would reverse the judgment -below, and enter judgment here for plaintiff on the verdict of the 3'ury. •