The only evidence offered by the plaintiff, and excluded by the court, was the testimony of Morey as to a conversation between himself and the station agent at Gloucester. This evidence was offered for the purpose of showing that the defendant had been notified that the place where the accident afterwards happened was dangerous to children for want of a suitable fence, and had been requested to erect such a fence. It is unnecessary particularly to consider the competency of this evidence, because we are of opinion that, upon all the evidence offered at the trial, the jury would not have been authorized to return a verdict for the plaintiff.
The plaintiff at the time of the accident was a mere intruder and trespasser upon the railroad track. No inducement or implied invitation to him to enter upon it had been held out. He was neither a passenger nor on his way to become one, but was there merely for his own amusement, and was using the track as a playground. The defendant corporation owed him no duty, except the negative one not maliciously or with gross and reckless carelessness to run over him. Johnson v. Boston & Maine Railroad, 125 Mass. 75. Upon this question, and also upon the question whether the plaintiff’s injuries had resulted from "the tortious acts of the defendant, without contributory negligence on the part of the plaintiff or of those who had him in charge, the case was submitted to the jury with instructions of which no complaint is made on his behalf. The verdict *381was for the defendant, and we do not think that any other verdict could have been authorized by the evidence. Therefore, by the terms of the report, ther§ must be
Judgment on the verdict.