If the unexploded torpedo lying beside the track rendered the defendants' premises unsafe for the use which the plaintiff, a boy nine years old, was attempting to make of them, that fact does not establish that the defendants were guilty of negligence. Actionable negligence is the breach of a duty owed by the defendant to the plaintiff. Where there is no duty there is no negligence. McGill v. Granite Co., 70 N.H. 125, 127. "The ownership of land imposes no duty upon the owner for the benefit of trespassers." Davis v. Railroad, 70 N.H. 519, 520. Hence, in the words of the plaintiff's brief, a landowner "is not obliged to fence a disused reservoir while filling it up (Clark v. Manchester, 62 N.H. 577), or a manufacturing corporation to stop its machinery or forcibly to eject a trespassing child (Buch v. Company, 68 N.H. 257), or a railroad to lock its turntables or discover chance trespassers (Frost v. Railroad, 64 N.H. 220; Shea v. Railroad, 69 N.H. 361)," or to fence its right of way for the protection of an infant trespasser. Casista v. Railroad, 69 N.H. 649. These propositions are admitted by the plaintiff upon the authorities in this state, and from them it follows that a railroad is not in fault for not keeping its right of way clear of obstructions which may render the place dangerous to an infant trespasser. This much appears to be conceded. But it is claimed that "throwing away poisons or explosives is an altogether different case"; that carelessness in the control of explosives and poisons "is a breach of duty to the public and to the individual injured." The claim is understood to stand upon the ground that, though a landowner is not liable for failure to take active measures for the protection of trespassers according to the authorities above cited, he is liable for injuries intentionally or wantonly inflicted. Davis v. Railroad,70 N.H. 519, 520; Leavitt v. Shoe Co., 69 N.H. 597; Frost v. Railroad,64 N.H. 220, 222.
At the close of the opening counsel was asked what the evidence would be to prove the defendants' fault. The ruling granting the nonsuit was, in effect, that the facts stated were insufficient to authorize the inference that the plaintiff's injuries were either intentionally or wantonly inflicted by the defendants. The ruling was correct. The only facts suggested were the finding of the torpedo upon the defendants' right of way beside the track, at a point one fourth of a mile from a crossing or station; that the torpedo was of a kind used only by the railroad; and the inference which could be made from the rules of the road by which the trainmen were required to be supplied with torpedoes and *Page 285 were directed how to use them as signals. These facts furnish no evidence of intentional or wanton injury. In the absence of evidence, it cannot be inferred from the rules requiring the use of torpedoes by trainmen that such use was unnecessary or improper. "As signal torpedoes are necessary in the operation of trains upon railroads, the possession of them by men of the train crew cannot be regarded as negligence, and it cannot be presumed that they are negligently used; but negligence in such a case, as in all others, must be proved either by testimony directly establishing the fact, or by the proof of facts from which such negligence will reasonably follow and be presumed. The jury cannot be allowed to guess that there was negligence without some proof thereof, either direct or inferential." Cleveland etc. R. R. v. Marsh, 63 Ohio St. 236, — 52 L.R.A. 142, 147; Gahagan v. Railroad, 70 N.H. 441, 444. No evidence to the contrary being offered, the only inference that can be made from the rules is that the use of torpedoes for signaling by placing them upon the rails, except at stations and crossings, was necessary and proper. Conducting their lawful business in a manner which there was no offer to prove was illegal or improper, the defendants are not liable to one who is injured, not by the defendants' acts, but by his own intermeddling with their machinery upon their own land, where the presence of the person injured was without right. Carter v. Railroad, 19 S.C. 20, — 45 Am. Rep. 754. The case cited was very near the present in its facts. It was there said, there being "no evidence except the naked facts that the defendant had placed the torpedo upon its track for a good purpose, and that the deceased, by intermeddling with it for a bad purpose, had brought upon himself the terrible calamity which resulted from its explosion," that "there was a total want of testimony as to the defendant's negligence, the gist of the action, and therefore the nonsuit should have been granted." In the present case the torpedo was found, not on the rail, but beside it. As to the cause of its being in the latter position, we are left entirely to speculation. in the absence of evidence, the jury cannot conjecture or guess that the presence of the torpedo beside, instead of upon, the rail was due to negligence. Much less could they be permitted to infer that it was wantonly or intentionally left where it was found. But the fact is of no consequence, because the plaintiff was not injured by coming in contact with it in walking along, but because he picked it up and struck it with a stone — a result equally as probable if the torpedo were found upon the rail. As the defendants owed no duty to warn or protect trespassers, the fact that the plaintiff was an infant does not create a duty where none exists. Buch v. Company,69 N.H. 257, 261. *Page 286
The allegation in the first part of the opening statement (which apparently is the declaration in the writ), that the plaintiff when injured was traveling upon the premises of the railroad, as he had a right to do, would authorize the introduction of evidence upon which, if it existed, the plaintiff might have a right to go to the jury; but it is understood from the subsequent statements and the argument that no right is claimed except what would result from the alleged fact that no objection was made to the passage of persons along the track between the Messer-street crossing and the station. This claim has not been urged, but it appears to be conceded that the plaintiff was in fact a trespasser, and the case has been argued by the plaintiff only upon that ground. Invitation by the landowner to go upon his premises cannot be inferred from the fact that persons go there without objection from him. Clark v. Manchester, 62 N.H. 577, 579; Cool. Torts 606.
Harriman v. Railway, 45 Ohio St. 11, has been cited. In that case there was evidence that the torpedoes were placed where found wantonly, and not for any necessary or useful purpose. In the absence of evidence of this character, it is not advisable to discuss the doctrine of this case, which on other points embraced in the decision is in conflict with the law of this state.
The action of the plaintiff, though only nine years of age, in placing the torpedo upon the rail and striking it with a stone, might be thought to indicate he had some knowledge of its properties. Doubtless he did not know of the danger from an explosion so made. His injury is to be ascribed, upon the facts stated, to accident or misfortune attributable to his childish ignorance and inexperience, and not to any actionable fault of the defendants. 1 Thomp. Neg., s. 1051.
Exception overruled.
All concurred.