This is an action by appellant on behalf of her son, as next friend, to recover damages against the appellee for injuries alleged to have been inflicted upon the child by reason of the negligence of appellees. The court below sustained demurrers to the petition, and appellant declining to amend, judgment was rendered against her.
The petition avers that the child, at the time it was injured, was twelve years of age, and was small in size, and lacking in intelligence and discretion. The averments of negligence are that the child boarded a moving freight train at a public crossing where there was no flagman or guard; that the crossing was much used and frequented by children and the public generally; and that the child and other children, were, within the knowledge of the employes of appellee operating its train, in the habit of boarding trains at that crossing and riding a distance, and that the child attempted to board the moving train and was injured; and that at the time he was endeavoring to get upon the train this fact was well known to employes of appellee operating the train, or they could have known it by the exercise of ordinary diligence; and that they failed to stop said train or prevent said injury, and that this was negligence. And that if a guard or lookout had been stationed at said crossing, he would have seen the child attempting to board the train, and *Page 308 could by signaling the train have prevented the injury. And that such failure was negligence. In reversing the judgment we deem it sufficient to only state the following propositions:
1. A child that is a trespasser upon the track or train of a railway company may recover damages for injuries sustained as the result of his voluntary conduct in placing himself in a position of peril, if he is so lacking in intelligence and discretion that he does not appreciate the consequences that are likely to result from his conduct. Evansich v. Railway, 57 Tex. 128; Avery v. Railway, 16 S.W. Rep., 1015; Berger v. Railway, 20 S.W. Rep., 440; Railway v. Cullen, 29 S.W. Rep., 256. Provided, of course, that the railway company is guilty of negligence.
2. Although there is no statute law in this State requiring railway companies to keep guards and lookouts at public street crossings, still, under their duty to exercise ordinary care, it may be negligence in some instances to fail to provide for such guards and lookouts. And whether it is negligence to fail to provide guards and lookouts, and their duties when there, are questions of fact for the jury. Railway v. Yundt, 78 Ind. 374; 4 Am. Eng. Enc. Law, 928-932.
3. If the railway company or its servants operating the train knew that the child was in a position of peril, or was attempting to place himself in a position of danger with reference to the moving train, or could have known these facts by the exercise of ordinary vigilance and care, and under such circumstances failed to exercise ordinary care and diligence to prevent injury to him, and as a consequence he is injured, it would be actionable negligence. These facts, as well as the other questions discussed, should have been submitted to a jury. 4 Am. Eng. Enc. Law, 939, note 3; McDonald v. Railway, 86 Tex. 13; Cook v. Houston Nav. Co., 76 Tex. 357; Evansich v. Railway, 57 Tex. 127 [57 Tex. 127]; Railway v. Cullen, 29 S.W. Rep., 578.
Judgment reversed and cause remanded.
Reversed and remanded.