(concurring in part, and dissenting in part).
I concur in a reversal of the judgment because of error in the charge. Prom the conclusion reached that the court erred in refusing to grant a nonsuit or to direct a verdict in favor of the defendant, I dissent.
I agree with the general rule that train operatives ordinarily owe no duty of lookout to discover trespassers on the track; that, when an adult trespasser is discovered, trainmen may assume that he will take care of himself and keep out of danger until a situation is disclosed which indicates that he is not aware of the danger threatening him; that, when a trespassing child of tender years is discovered, trainmen may not assume that it will take care of itself and keep out of danger,, but they are required to use care commensurate with the situation to avoid injuring it; that while trainmen are not usually required to foresee or anticipate the wrongful presence of persons upon or about the track, yet if they have knowledge that at certain times and places it has been the custom and general habit of persons, although technically trespassers, to traverse the track, or to' be about or upon it without objection, train operatives, in the exercise of ordinary care, may be required to take notice of such fact and to regulate their conduct accordingly. With the general statement of these principles, as made by klr. Justice Prick, and with much that he has said concerning them, I agree. I also agree *500with him that the evidence is insufficient to show that the track at the place in. question was so frequently traversed by the public or the people of the neighborhood, or for such a length of time under circumstances to warrant a finding that the making of such use of the .track had been general or customary, or without objection, or that the defendant or its employees had acquiesced therein, or that because of such usage trainmen owed the duty of care to anticipate the presence of persons upon or at the track at such place. I therefore agree with him in the conclusion reached that the train operatives did not owe a duty to exercise care to keep a lookout for the presence of persons at the place of the accident, and that no duty to use care arose until the child was discovered. I however, disagree with the statements and expressions in the opinion which seemingly indicate a holding (probably obiter dictum) that, in cases where a duty to use care is owing, the question whether trainmen are required to keep a lookout is one of law and not of fact.
Every case of actionable negligence involves a legal duty to exercise care, and a. breach of that duty resulting in injury. Where there is no legal duty to exercise care there can of course be no actionable negligence. One may owe a legal duty to exercise care with respect to some persons, but as to others he may owe no such duty. A master owes a legal duty to his servant to use care in furnishing and maintaining suitable premises. He ordinarily owes no such duty to a mere stranger, or to a trespasser. A railroad company, as á matter of law, owes a duty to those rightfully upon its cars and about its track and premises to use care in the handling of its cars and in the running of its trains, but it, as a general rule, owes no such duty to a mere trespasser. The questions whether a legal duty to use care is owing and the degree of care, whether ordinary care or a high degree of care, are questions of law to be determined by the court. When the standard of care is fixed, as when specific duties are prescribed by statute or ordinance, then, a failure to come up to such standard, or to perform the duties so prescribed, is generally held to be negligence per se. When, however, the standard is not fixed, nor *501the duty so prescribed, then, generally, two questions of fact arise: First, wbat, under all the facts and circumstances of the case, is ordinary care or high degree of care as defined by the court? and, second, did the party charged with negligence come up to that standard? Train operatives owe no1 duty to mere trespassers to exercise care, and hence they cannot be chargeable with negligence in failing to observe a lookout to discover them, or to otherwise run or operate the train with reference to them _ until their presence is discovered. This is so, not because no legal duty to observe a lookout was imposed, but because no legal duty to use care was owing. That is, the thing which makes the failure to keep a lookout in such case not actionable negligence is that no duty to use care was owing from the train operatives, rather than that no specific duty to observe a lookout was imposed. By the expressions found in the cases where courts have said that no legal duty to keep a lookout was owing, courts only mean that, since the train operatives dkbnot owe a legal duty to use care, they could not be chargeable with negligence in failing to observe a lookout. The same would be true if the particular conduct complained of was the failure to ring the bell or sound the whistle, or arrest the speed of the train, or if the conduct complained of pertained to some other particular in the management or handling of the train. In each instance the court would declare, as matter of law, that negligence could not be predicated on a failure to do such things because no legal duty to exercise care was owing. When, however, the court determines in a given case that a legal duty to use care is owing, then the question whether the omission or commission of specific acts was or was not a breach of such duty is ordinarily a question of fact and not of law. In such case the court cannot say, as matter of law, that a legal duty was imposed to keep' a lookout, any more than that a legal duty was imposed to ring a bell or sound a whistle, or arrest the speed of or stop the train, or that the doing of some other particular thing was required. In other words, when the court determines that a duty to use care on the part of the train operatives is owing, it cannot also say, except where specific duties are prescribed *502by statute, that- the train operatives were in duty bound to look, or that tliey were not required to; look, or that the failure to do so was or was not negligence. If in such a case the court may determine under what circumstances it is or is not negligence on the part of the train operatives to observe a lookout, and leave to the jury only the question to- determine whether the act was or was not performed, then for the same reason, could the court also determine under what circumstances it is negligence to fail to ring a bell or sound a whistle, or arrest the speed of or stop the train, and, again, only leave to the jury to determine the question whether the act which the court found ought to have been done was or was not done. The court may not thus characterize the commission or omission of specific acts as negligence or due care, and leave to the jury only to determine whether they were omitted or committed, except in comparatively few instances. If the statute has imposed specific duties, such as to ring the bell, or sound the whistle, or limit the rate of speed, the court may, according to the weight of authority, and as held in this jurisdiction, declare the failure to1 perform them negligence per se. There the court declares that the running of the train at a greater rate of speed than that prescribed by statute, .or the running of it without giving the statutory signals, is negligence, and leaves it to the jury only to determine whether the statutory signals were given or the train run at a speed in excess of that prescribed by the statute. But in a large majority of cases involving negligence, the law has not prescribed what men shall do. In the large majority of instances no specific duty has been prescribed. The standard fixed is that of ordinary care, such care as a reasonably careful and prudent person would take in the same situation and under like circumstances. To illustrate: The law does not prescribe at what rate of speed a train may be operated outside of cities and towns. In such case, when a duty of care is owing to one, two questions of fact ordinarily arise: First, what is an imprudent speed? and, second, did the party charged run the train at such imprudent speed ? So when a duty to use care is owing, and it is claimed that a lookout ought to have been *503observed, again two questions of fact generally arise. First, was it imprudent on tbe part of tbe train operatives, in-tbe exercise of ordinary care as defined by tbe court, and under all tbe facts and circumstances of tbe case, not to observe a lookout? And, second, if so, did tliey fail to observe a reasonable lookout ? And it may be said as a general rule when tbe court bas determined and charged tbe jury that tbe use of ordinary care is owing, and when tbe standard bas not been fixed by law, except sucb care as a reasonably careful and prudent person would exercise under like conditions and circumstances, tbe jury, from all the facts and circumstances of tbe case, must first find and determine wbat is ordinary care as tbe court defined it, and then measure tbe conduct of tbe party charged by that standard. For these reasons, I am of tbe opinion that, in a case where a duty to use care is owing, tbe question whether a lookout ought to- have been observed is generally one of fact and not of law. Now, in this case, tbe child being a trespasser, tbe trainmen, under tbe facts and circumstances disclosed, owed no. duty to exercise care to discover its presence. Tbe court ought to have so instructed the jury. When the court charged tbe jury, as be in effect did, that tbe trainmen owed a legal duty to exercise care to discover tbe child, though a trespasser upon the track, and, too, regardless of conditions or circumstances, and that a different duty was owing from them, regardless of conditions or circumstances, to observe a lookout to discover sucb a trespasser, than an adult trespasser, tbe court committed error. While tbe court directed tbe jury that they, in determining whether ordinary care was exercised, could consider tbe surrounding facts and circumstances as disclosed by the evidence, nevertheless tbe court charged that a duty to exercise care was owing to discover tbe trespassing child regardless of conditions. As pointed out by Mr. Justice Frick, under some conditions the law imposes a duty to exercise care to discover tbe presence of persons on or about tbe track, though technically trespassers; under other conditions, tbe law imposes no sucb duty to discover tbe presence of trespassers, whether adults or children. When, and under wbat circumstances, *504the duty was owing, the jury were not informed, except as they were erroneously informed that the duty was owing to discover a trespassing child regardless of conditions. Because the jury in this regard were given a wrong principle of law, I concur in, a reversal of the judgment.
I, however, do not concur in the holding that the court erred in refusing to grant a nonsuit or to direct a verdict. Assuming that the facts do not warrant a holding that a duty to use care was owing from the train operatives to observe a reasonable lookout to discover the presence of persons on the track at the place in question, and that no duty to use care on their part arose until they discovered the child, the question of law to be determined by us is, is there any evidence to justify a finding by the jury that the train operatives discovered the child, and that they, after such discovery, in the exercise of all reasonable care commensurate with the situation, could have avoided injuring it ? The point on which we principally disagree is, when does the duty to exercise care arise ? Is it from the time the object is seen and discovered on the track by the train operatives, and by looking along the track it could be discerned to be a human being, or from its appearance and surrounding conditions the train operatives ought reasonably to have expected that the object discovered by them may probably be a human being, or is it from the time the train operatives themselves say that they recognized or discerned the object to be a human being ? The evidence bearing upon the question shows that the track ran in an easterly and westerly direction. The child was lying between the rails of the track about two hundred and twenty-five feet yvest of a highway crossing. The train was running in an easterly direction at a rate of speed of from thirty-five to forty miles an hour. The engineer operating the train testified on behalf of planitiff that under the rules of the company, in approaching crossings, he was required to observe a lookout for the presence of persons who might be at or about them; that when he approached the whistling post, which was about one-half mile west of the crossing, he looked along the track in advance of the engine and in the direction of the crossing; that the coun- - *505try was flat and open, tbe track substantially straight, tbe day clear, tbe view unobstructed, tbe time about 1:40 p. m.; that be looked along tbe track in advance of tbe engine before be approached tbe whistling post, and practically looked in tbe direction of tbe crossing along tbe trade from that time on until be struck tbe child, and that tbe performance of no other duties took bis attention away from bis looking in advance of tbe engine; that when be was about two hundred yards west of tbe crossing, or about one hundred and twenty-five yards west of tbe place where tbe child was, be discovered an object lying between tbe rails of tbe track, which be thought “might be old clothes or weeds, most anything;” that from tbe time be first saw tbe object until he struck the child be looked at it and tbe crossing; that be saw tbe object before be saw tbe crossing; that- a person on an engine a.t a speed of thirty-five or forty miles an hour could "not see an object on a track as well as one standing still; that be did not recognize tbe object as a child until be was within sixty feet of it, and when “it started to get up and raised its bead and looked around towards tbe engine;” that he then applied tbe air, and did all that was possible to stop the train; that from the time when be first discovered tbe object on the track be made no effort to slacken the speed or check the running of tbe train until within sixty feet of it; that when be attempted to stop tbe train be was then unable to do so until it bad run a distance of about five hundred and forty feet. Tbe plaintiff also gave other evidence showing that on a subsequent day tbe clothes which tbe child wore on tbe day of tbe accident were folded up and a string tied around tbe middle of them and placed on tbe track between tbe rails at tbe place of tbe accident, and that one standing on the track eight hundred feet to tbe west could see that the bundle was clothes, and that it was lying between tbe rails. Evidence was also given of further experiments which were made by placing a child smaller than plaintiff’s child on tbe track between tbe rails at tbe place of tbe accident, tbe child being in “a sitting position and leaning over tbe rail with its face towards tbe north,” and that one standing on tbe track one thousand and three hundred *506feet to the west could see the child, and at a distance of eight hundred feet “could see the child’s face plainly, and see and know that it was on the track between the rails,” and five hundred feet away “could recognize whose child it was.” Testimony was also given in behalf of plaintiff by an expert witness that an engineer in his cab when the train was running from thirty-five to forty miles an hour on an ordinary smooth track could better see an object on the track than a person standing on the track at the same distance; and that the train, under all the circumstances shown in the' case, could have been stopped within a distance of one hundred yards. Upon this evidence the holding of the majority of the court is to the effect that, by the engineer’s looking along the track in manner as testified to by him, but one finding is justified by "the jury, and that is that he did not discover the child until the train was within sixty feet of it, and then, of course, it was too late to avoid the injury. Such a conclusion seems to be reached mainly upon the testimony of the engineer, wherein he testified that, notwithstanding his looking along the track in advance of the engine and in the direction of where the child was lying, he could not and did not recognize it as a child until he was within sixty feet of it. The question is not now, was the engineer in the first instance required to anticipate the probable presence of persons upon the track at such place and to observe a reasonable lookout for them, and for that reason to be held chargeable with a dereliction of duty in failing to observe a lookout, and guilty of negligence in failing to' see and observe something which could have been seen and discovered had he looked. There is evidence to justify a finding that from the time the train left the whistling post until it reached the place where the child was struck the engineer was looking along the track and in the direction of the crossing and of where the child was lying, and that during such time his attention was not occupied by anything else. In fact, the evidence showing such matter is substantially without conflict. The question, then, is not whether tire engineer should be held chargeable with negligence ini. failing to see and to observe something which could 'have been *507seen and observed by him had he looked, but what could be seen and observed by him in looking along the track' in manner as testified to by him in the direction of the crossing and' of where the child lay?' Suppose a horse had been lying on the track at the place in question under similar circumstances as disclosed by the evidence, and the engineer had testified, as here, that he was looking in advance of the engine, and in the direction of the object, and had also testified that he could not see the object until he got within two hundred yards of it, and that he then supposed it to be something which could not be injured and which would not endanger the train, and that he did not discover that it was a horse until he got Avithin ninety feet of it, when the horse began to struggle, is that the end of the inquiry? Suppose an avei*age-sized man had been lying on the track, and similar testimony had been given by the engineer Avith respect to his looking along the track in advance of the engine, and that he did not discover the object until he got Avithin one hundred and tAventy-five yards of it, and that he then supposed it was some inanimate thing, and did not discover that it Ava.s a human being until he Avas Avith-in sixty feet of it, Avhen the man raised his head and looked around, is that, again, the end of the inquiry? It may be said, as intimated in the opinion, that such objects on the track would be so prominent that in looking along the track the inference of seeing them at a greater distance would be unavoidable, or that the testimony given in such cases that they Avere not seen at a greater distance Avould be improbable or false. But shall' it also be said that when testimony is given with respect to a smaller object, a two year old child, that by looking along the track it Avas not seen until within one hundred and tAventy-five yards of it, and that it was not discerned to be a child until Avithin sixty feet of it, such testimony must be taken as conclusive of the matter because it may seem quite probable, notwithstanding.there is evidence to show that such an object could be seen at a distance of one thousand and three hundred feet, about one-lialf the distance between the whistling post and the crossing, that at the distance of eight hundred feet the face of such a child could *508plainly be seen and recognized, and that at such a distance even the bare clothes which the child wore on the day of the accident, and which were folded up and placed between the rails, could be seen and recognized as clothes? In this respect I think the majority of the court have dealt not with a question of law, but with a pure question of fact, and have in effect themselves undertaken to determine within what distance an engineer situated as was the defendant’s engineer, by his looking along the track in manner as disclosed -by the evidence, could see an object the size of a two year old child lying between the rails, and within what distance it could be discerned that it was a child, or else have assumed that the testimony which the engineer gave on the subject was conclusive. It may be, as intimated in the opinion, that the evidence of the experiments may not be entitled to as much weight as the testimony of the engineer, but that was a matter more properly within the province of the jury. Furthermore, when the engineer testified that he discovered the child one hundred and twenty-five yards away, such distance was only estimated by him. When asked how far west of the railroad crossing lie was when he first saw the object, he said: “Oh, I guess I was about two hundred yards; something like that.” When asked how far he could see the object, he said: “I could see it for about one hundred and twenty-five yards. Now this is not positive. I did not measure it. It is to the best of my judgment one hundred and twenty-five yards.” By other portions of his testimony it appears he testified: “To be absolutely safe that you know the object is between the rails, I don’t think you could see it over two hundred yards.” On cross-examination he testified that he did not mean that it was two hundred yards away that he saw the object, and could see that it was on the track, but that the distance at which he could see that the object was on the track was not over one hundred and twenty-five yards. Witnesses, when testifying from recollection concerning distance and time, are apt to either overestimate or underestimate the real fact; not because they intend to do so, but because of the difficulty in fixing them with any degree of exactness. In many instances witnesses can *509only approximate them. That was all this witness did. When such is the case the inference or conclusion to be drawn from the fact or facts so testified to can, likewise, not be definite nor exact. The inference or conclusion must, of necessity, be as flexible and indefinite as is the testimony of the facts itself from which the inference or conclusion is inferred or drawn. But apart from these considerations, from other evidence in the case that the engineer was looking in advance of the engine, and in the direction of where the child was lying, and that such an object could plainly be seen at a much greater distance, the jury might find that the engineer was mistaken in his estimate of the distance at which he first say the object, and that he saw it at a much greater distance.
An engineer discovering an object on the track may not assume, as matter of law, that it is inanimate and of no consequence, and regulate his conduct accordingly. Whether he may do so, I thipk, ordinarily depends upon the character and appearance of the object and the facts and circumstances of the case. Upon this question, I think, the authorities are generally of one accord. In this connection it is said that the case of Hyde v. U. P. Ry. Co., 7 Utah 356, 26 Pac. 979, is not applicable. I think the purport of the decision and the points before the court for review in that case have been misconceived. In the opinion of the majority of the court a quotation is set forth of a portion of the charge relating, not to the defendant’s duty nor its negligence, but to the negligence of the parents and the child, which the reporter inserted in the report preceding the opinion. The charge is nowhere referred to by the court, either in the state of the case or in its opinion. The following statement made by'the court in its opinion clearly shows that the charge of the court with respect to the negligence of the defendant or its duties, or even with respect to the negligence of the parents or the child, was not before the court for review:
“The questions of the negligence of the parents and of the railroad company were submitted to the jury under proper instructions by the court, to which no objection is taken, and we see no reason for disturbing their verdict on the ground that it is not supported by the evidence.”
*510The questions presented, for review did not involve the charge relating to the negligence of either party, but involved the question whether the verdict was justified by the evidence. It was there contended that the verdict was not justified because the parents were guilty of contributory negligence in permitting the child (between four and five years of age) to be and remain on the track and there go to' sleep between the rails. In reply to this contention the court observed:
“But, even if tlie parents were guilty of contributory negligence, we think, under the circumstances of this case, such negligence should not defeat a recovery. Although an injured party may he guilty of negligence contributing to the inj.ury complained of, yet he is entitled to recover against a defendant who, after discovering the plaintiff’s negligence, fails to use due diligence to prevent accident, but who goes ahead wantonly or recklessly and commits injury.”
In that ease, “both the engineer and the fireman testified that they saw the child when it was from two hundred to three hundred yards away, but thought it was a piece of cloth or paper, and could not tell what it was until they got within about thirty feet of where it lay, when they discovered it was a child by seeing its hair, but that it was then too late to stop tho train before reaching it. They further testified that they did not slacken the speed of the train when they saw the object on the track until they ascertained it was a child, when they immediately did all they could to stop the train as soon as possible, but that the train could not be stopped in a less distance than about one hundred and twenty-five feet.” True, it was also shown that “there was a store close by, and a schoolhouse not far off, and children were frequently on and along’ the track at this point.” .But the ruling of the court in that case is not predicated on the assumption that there were facts showing that the track at such place had been traversed or had been used by people of the neighborhood or by the public, or that persons otherwise had been about the premises under circumstances where it may be said that the railroad company acquiesced in such use being made of the premises, and for that reason the train operatives were required to take notice of'such fact, and-for that or other reasons to observe a look*511out to discover the presence of persons who might be about the premises and track at such place, and that they were negligent in failing to observe such lookout. From the determination of any question considered by the court, or from any expression used in the opinion, I do not find anything to warrant the conclusion that a ruling was made that the train operatives owed a duty of care to observe a reasonable lookout to discover children or persons at the place of accident, or that in view of such duty the case was properly let to the jury. What the court said and decided on this point was: “We think in this case that when the servants of the defendant saw an object on the track, in a place frequented by children and others, and failed to slacken the speed of the engine so as to be able to stop the train before striking the child, it was negligence” for which the defendant was liable, notwithstanding the fact that the child was a trespasser and the parents guilty of contributory negligence. The fact that it was shown that children had been frequently upon the track at the place in question bore only on the question as to whether the trainmen, when they discovered the object, ought to have anticipated and expected that it probably was a human being, and not that they were required in the first instance to use care to discover the probable presence of persons or children at such place.
If the conclusion reached by my Brethren is correct, that the charge of the trial court in that case was before the Supreme Court for review, and that it pertained to questions with respect to the defendant’s duties and negligence in the premises, and is susceptible to the meaning ascribed to it by them then the case is an authority not only justifying the submission of this case to the jury, but also sustaining the charge of the court here reviewed by us. The language quoted by my Brethren, much less the language not quoted, does not bring the case within the rule which is termed the “intermediate rule.” The language does not imply the meaning that if the jury found that the track at the place in question had been frequented by children, or that they or other persons had been accustomed to traverse it or be about the same, or because of the assumption of any such facts by the court, a *512duty of lookout was owing on tbe part of tbe train operatives to discover tbe presence of persons at sucb place. From the language quoted it appears'that tbe things upon which tbe court directed tbe jury that a duty of lookout was owing, and which tbe jury were directed to consider in determining whether a proper lookout was observed, was not the fact of any usage -which children or other persons had made of the track, or of their frequency about it, but the fact that the train operatives were approaching a crossing and that there were houses and people residing close by. The elements upon which the court in the charge directed the jury a duty was owing, and which the jury could consider in determining whether it was properly performed, existed here as well as there. The defendant here was likewise approaching a crossing, and there were houses and people residing close by. But from a reading of the entire instruction it is quite clear to me that the court was not then charging with respect to the defendant’s duty in the premises in the first instance, but stated to the jury the well-recognized principle of law that notwithstanding the negligence of the parents or 'the child, nevertheless, if the train operatives saw the child, or, having discovered an object on the trade, and from the proximity of settlements, the approach of a crossing, nearby houses, and other surrounding facts, they ought to have expected that the object discovered may probably be a human being, the defendant would be liable if reasonable care was not exercised to avoid injuring it.
Again, it is said that the case of Keyser v. C. & G. T. Ry. Co., 56 Mich. 559, 23 N. W. 311, 56 Am. Rep. 405, is distinguishable from the case here on the ground of gross negligence. I do not think that Mr. Justice Sherwood, who wrote the opinion, ruled the case on any such ground. The syllabus of the case on this point is:
“It is negligence not to slacken the speed of a train so that it can be stopped if necessary, if the engineer has seen an object on the track, a long way off, and cannot' tell what it is.”
*513As stated by tbe court in that case, it was there made to appear
“That the country at the place and in the vicinity of where the accident occurred was somewhat low and wet, and grown up to brush and berry bushes, and, though sparsely Nsettled, was occasionally visited by persons in the vicinity, and others who gathered berries. There were two road crossings within three-quarters of a mile of where the plaintiff was struck by the train. The engineer of the train was sworn on behalf of defendant, and gave evidence tending to show that the train was running at the rate of thirty or thirty-five miles per hour; that with the number of cars composing the train it could not be stopped at a less distance than from four to five hundred feet; that when he first saw the plaintiff upon the track his engine was from three thousand feet to two thousand fiv,e hundred feet from it, and he resembled a stick of wood lying upon the track; that he was lying down; that when he first discovered that it was a child which he saw his engine was about one thousand two hundred feet from the plaintiff.”
The trial court in that case charged in substance that'there was nothing in the evidence warranting the assumption that the train operatives were required to keep a vigilant lookout in the locality in question, and further charged: “The only question that is left for- you to consider and determine is whether the engineer and fireman in charge of the engine that struck the child, after they discovered him and realized the fact that he was of that age that he was possibly helpless to take care of himself and get off from the track, did all that an ordinarily prudent and careful engineer and fireman should have done under the circumstances, warning the child of his danger and stopping the train, and thereby avoid, if possible, killing or injuring him.” A verdict was obtained in favor of tbe defendant, from which tbe plaintiff prosecuted an ■ appeal. In reviewing tbe charge and in reversing the judgment, the court said:
“It is apparent from tbe record that sometbing made its appearance upon tbe track, indicating danger a long way ahead of tbe train, and evidently in a locality where it would least be expected. It was discovered by both the engineer and tbe fireman. The occurrence was of a character to call for increased vigilance on the part of tbe defendant’s trainmen in determining tbe char*514acter of the apparent obstruction. It should have, at least, caused the engineer to slow down the speed of his engine to such a rate' that, in approaching it, he could have stopped his train, if necessary, to prevent injury before reaching the object of danger.”
It was further said:
“Under all the circumstances stated in the record, I do not think thát such a lookout as was called for by the appearance of the child upon the track was observed by the trainmen.”
From a reading of the case it is very clear to me that the ruling, so far as it involved the point in question, was based on error committed by the trial court in submitting to the jury only the question for determination whether the trainmen did all that ordinary prudence and care required after they discovered that the object was a child, instead of also leaving to them the question for determination whether they did all that ordinary care and prudence required after they discovered the object on the track. This view is strongly enforced by what the court said on a subsequent appeal of the same case (66 Mich. 390, 33 N. W. 867), where it was said by the court that when an object is discovered on the track,, and its character is unknown to, the engineer,
“Ordinary care and prudence for safety of human life require that he should reduce the speed of his train to such an extent that he can stop, if necessary, before reaching it, and not take the chances of probability that the object discovered is not a human being because not expected upon the track at that point.”
So, in the case of Meeks v. S. P. R. R. Co., 56 Cal. 513,, 38 Am. Rep. 67, where there was testimony tending to show that at the place of injury, and for a considerable distance beyond, the road of the defendant was practically straight and free from weeds and other like obstructions; that the day was clear, and that at the time of the injury the plaintiff (a child between sis and seven years of age lying on the track) could have been seen and recognized as an object on the track at a distance of from three hundred to three hundred and fifty yards; that one of the trainmen on the engine testified that he saw the plaintiff at a distance of four hundred to five hundred feet ahead, but supposed it was a bunch of leaves or weeds, or *515some other insignificant object, until the train got within about one hundred and fifty feet of the plaintiff, when he discovered it was a child; and that no signals were given, nor attempt made to slacken the speed of or stop the train until the object discovered was recognized to be a child was sufficient evidence of negligence.
My conclusion, therefore, is that when train operatives discover an object on the track, whether, under all the circumstances, they may act upon the assumption that it is some inanimate thing, or whether they ought to anticipate that it may probably be a human being, is ordinarily a question of fact. Although no duty in the first instance be imposed to discover the presence of persons at a place, yet, if the jury should find from what the trainmen saw ,and discovered, and from all the facts and circumstances surrounding them, they ought to have anticipated that the object discovered might probably be a human being lying prone upon the track, or a child of tender years- in a place of danger, a duty to exercise care would arise, which, if performed negligently, resulting in injury, would constitute actionable negligence.
It, however, is intimated that, the rule announced in these eases has been departed from by subsequent cases from the same courts. This claim is based upon the statement made in subsequent cases that no duty of care was imposed on train operatives to observe a lookout to discover trespassers. That same principle is recognized in Keyser v. Ry. Co., supra, and in Meeks v. Ry. Co., supra. No contrary doctrine is announced in these cases. But the doctrine is there announced that when train operatives discover an object on the track, under circumstances from which they may or ought reasonably to expect the object discovered may be a human being, a duty to exercise care and vigilance arises. This doctrine is not disputed by subsequent cases from the same courts, nor is it repudiated, but, I think, supported by the weight of authority.
Special reference is made to the case of So. Ry. Co. v. Chatman, 124 Ga. 126, 53 S. E. 692, 6 L. R. A. (N. S.) 283, and notes to cases in 4 A. & E. Ann. Cas. 615. But these *516cases and notes are only to the effect that no duty was imposed to observe an outlook to discover trespassers, whether adults or children. The case of Ry. Co. v. Williams, 69 Miss. 631, 12 South. 957, cited in the prevailing opinion, is, I think, the only case cited which piay be said to make against the doctrine announced in the Hyde, Meeks, and Keyser cases. But the decision of each case is dependent upon its facts. As far as made to appear in that case, there was no evidence given except the testimony of the engineer concerning the appearance of the object discovered, nor were there, apparently, any facts or circumstances shown from which a finding was justified that when he first discovered the object he ought to have expected that it likely was a human being. If there were no evidence in this case except that of the engineer concerning such questions, much that divides us here would disappear. Furthermore, the Mississippi court adheres to the doctrine that, though a trespassing child is discovered in a place of danger, no duty is imposed on the train operatives, except “abstention from willful or wanton injury,” a doctrine repudiated by this court.
From the testimony of the engineer that he looked along the track in the direction of the crossing from the time he left the whistling post, that he saw the object before he saw the crossing, that from the time he discovered the object on the track one hundred and twenty-five yards away he looked at it and tire crossing until the child was struck, and from all the evidence in the case tending to show at what distance such an object could plainly be seen and recognized by looking at it, a finding might properly be made that the engineer discovered and discerned the object at a greater distance than that testified to by him. The jury were authorized not to assume as matter of law that the engineer saw what might be seen had he looked, but to draw the inference as matter of fact that he, in looking, saw what others saw in looking under similar conditions. There is testimony tending to show that from his position on the engine he was able to better see and discern an object on the track than persons standing on the track looking in the direction of the object at the same distance. There *517'being evidence tending to show that the bare clothes which the child wore conld be seen between the rails and recognized as clothes at a distance of eight hundred feet, and that at such distance the face of a child smaller than plaintiff’s child could plainly be seen, and at five hundred feet it could be recognized whose child it was, the jury would be authorized to find that the engineer in looldng at a similar object at the same distance could at least sufficiently discern its character to induce the expectation that it might probably be a child, especially in view of the circumstances that it was lying near a crossing, that a residence was only a short distance away, and that he had theretofore several times seen children hanging clothes on the railroad fence near the place of the accident.
TJpon the record, I think the evidence sufficient to send the case to the jury upon proper instructions.