conductor to ride in a car as a passenger without paying fare. In that case there is a legal liability to the company for the fare. This is the case of a mere trespasser, and the company owed him no duty. We are of opinion that the rulings of the learned judgę below were right.

Judgment affirmed.

Per Curiam. GREEN, J., absent.

See Cauley v. R. R. Co., next case.

CAULEY
v.

PITTSBURG, CINCINNATI & ST. LOUIS RAILWAY Co.

(Advance Case, Pennsylvania. November 8, 1880.)

One writ of error cannot be taken to separate judgments in two actions arising out of the same facts, and tried together on the same evidence. In such case the writ of error will be quashed.

Except at street crossings, where the public has a right of way, a railroad company has the right to a clear track, and it owes no duty to trespassers, whether they be adults, minors, or children of tender years. (Per Paxson, J.)

It is contributory negligence per se in parents to suffer their children to trespass on the cars or track of a railroad company. The fact that the trespass was committed without the knowledge or consent of the parent is immaterial. (Per Paxson, J.)

While boys were playing on a sand-laden car standing on a switch within the city limits, the train was moved, and while in motion the conductor ordered the boys off. The youngest, a boy of seven years, in jumping off fell under the wheels and was injured. In actions brought by the father of the child, and by the child, against the company, the plaintiffs offered to prove the above facts, and others showing negligence by defendant's servants.

Held, that the court below properly refused to admit the plaintiffs' offers, and properly directed verdicts for the defendant. (Paxson, J.) TRUNKEY and STERRETT, JJ., dissent.

Error to the Common Pleas No. 2, of Allegheny County.

These were two actions on the case, one brought by John H. Cauley, a minor, by his father and next friend, John Cauley, and the other by the said John Cauley, the father, against the abovementioned railway company, to recover damages for injuries to said minor, and loss of service, etc., caused by the alleged negligence of defendant's servants. Plea, not guilty. The docket entries in both cases were the same, and both were tried together. When the causes came on for trial, before Kirkpatrick, J., the plaintiffs offered to prove substantially the following facts: On the morning of Sept. 20, 1879, John H. Cauley, a boy of seven years of age, was, without his parents' consent, playing with older boys

on a flat car loaded with sand, that was standing upon a switch of the defendant's railroad, at a point within the city of Pittsburg, adjacent to a street crossing, in a thickly populated district near rolling mills and factories, and near the residence of plaintiffs' family; while so playing, the defendant's servants caused the said car with others to be shifted by a locomotive, and while the train was in rapid motion the conductor, who was on the ground near by, ordered the boys off, and at the same time a brakeman on the train approached the boys in a threatening-manner, when the boys jumped off the train, and the plaintiff, John H. Cauley, in so doing fell and was run over, suffering injury which required the amputation of his leg below the knee; the mother of the boy seeing the danger, had called to the conductor protesting against his ordering her boy off the train while it was in motion, to which remonstrance he paid no attention, but with oaths repeated his orders to the boys to get off, while the cars were in motion.

Offers objected to as irrelevant, and because they disclose the fact that the boy was a trespasser at the time of the injury, and they fail to disclose such negligence on the part of the defendants as would entitle plaintiffs to recover. Objection sustained, and offers excluded.

There being no other evidence, the court charged, as requested by defendant, that the verdict should be for the defendant, adding, at plaintiff's request, that the reason in so charging was because the court ruled out the plaintiffs' offers of evidence.

Verdict and judgment in each case for defendant. The plaintiffs took this writ of error to said judgments, assigning for error the exclusion of plaintiffs' offers of testimony.

A. M. Watson, for plaintiffs in error:

The court below treated the child as if he were an adult, overlooking the distinction between the legal responsibility of adults and infants of tender years, and the corresponding distinction in the duty of the railroad company to the two classes. The car loaded with sand, standing on a switch in a populous district, not fenced off from the street, offered an irresistible temptation to boys to play in the sand, and the company in failing to provide a watchman to warn them off, tacitly encouraged the trespass, and were guilty of negligence in inhumanly ordering the boys off while the train was in rapid motion, when, by waiting a few minutes, the train would have stopped, and no harm would have been done to the company or to the boys. "A defendant is liable to au infant seven years old for injury resulting from negligence, though the plaintiff was a trespasser and contributed to the mischief by his own act." Smith v. O'Connor, 12 Wr., 221; Penna. R. R. Co. v. Lewis, 29 Sm., 33; Phila. & Reading R. R. Co. v. Long, 25 Sm., 257; P. & M. Pass. Railway Co. v. Donahue, 20 Sm., 119; R. R. Co. v. Spearen, 11 Wr., 300; Pa. R. R. Co. v. Morgan, 1

Nor., 134; Lynch v. Nurdin, 1 Ad. & E., 422; Robinson v. Cone, 22 Ver., 224.

Dalzell (Hampton, with him), for defendant in error:

The court ruled out the plaintiffs' offers, not on the ground of contributory negligence, but because the boy was a trespasser. A distinction may be taken between the suit by the father and that by the minor. There could be no recovery by the former, under any of the authorities. It is the duty of parents to prevent their children from trespassing on a railroad track, and a failure to do so is contributory negligence per se. Smith v. Hestonville, Mantua, & Fairmount Pass. Railway Co., 8 Weekly Notes, 166. Nor is the case really doubtful as to the latter. The company owes no duty to trespassers, without regard to age. Duff v. A. V. R. R. Co. (ante, p. 504), 27 Pitts. Leg. Journ., 58, Nov. 26, 1879; Flower v. Pa. R. R. Co., 19 Sm., 214; Cunningham v. Pa. R. R. Co., Oct. and Nov. T., 1859, unreported; Knight v. Abert, 6 Barr, 472; Phila. & Read. R. R. Co. v. Yeiser, id., 366. In this case the question of negligence was for the court. Goshorn v. Smith, 8 Weekly Notes, 290.

PAXSON, J.-It was said by Mr. Justice Strong, in Philadelphia & Reading R. R. Co. v. Hummell (8 Wright, at page 378): "It is true it should be understood in this State that the use of a railroad track, cutting, or embankment, is exclusive of the public everywhere, except where a way crosses it." The same doctrine has been reiterated again and again, in subsequent cases. In Mulherrin v. Delaware, Lackawanna & Western Railroad Co. (31 P. F. S., 366) it was said: "Except at crossings, where the public have a right of way, a man who steps his foot upon a railroad track, does so at his peril. The company has not only a right of way, but it is exclusive at all times and for all purposes," and Railroad v. Norton (12 Harris, 465) was cited in support of this rule.

Many other cases might be referred to were it necessary. We live in an age of steam and rapid development. The world demands quick transportation. Increased speed necessarily involves increased danger. Holding, as we do, such corporations to a strict responsibility for negligence, it is our duty to give them a clear track. This rule is not only proper in itself, but is necessary for the preservation of life. Its propriety is no longer a subject for discussion.

It ought also to be equally well understood that parents who permit their children to trespass upon the track of a railroad are guilty of negligence. It is not only gross but culpable negligence, as it imperils the lives of the children so trespassing, as also the lives of the travelling public. A similar view was taken in Railroad Company v. Hummell, supra, where it was said that children "cannot be upon the railroad without a culpable violation of duty by their

parents or guardians." It is very clear, therefore, that as to the suit brought by John Cauley, in his own right, for the injury to his son, he cannot recover. The child was upon the car, where he ought not to have been, by the negligence and want of care of his father. Nor does the offer of evidence ruled out by the court below tend to rebut the presumption of negligence on the part of his parents; on the contrary, it strengthens it. Assuming the offer to be true, it shows that the child was not only playing upon the car on the occasion when he received the injury, but that he had done so before. The location was near his parents' house, probably in sight, as his mother saw the accident, and called to the conductor. That the child was there without his father's consent, is not to the purpose. "To suffer a child to wander on the street has the sense of permit. If such permission or sufferance exist, it is negligence." (Phila. & Reading R. R. Co. v. Long, 25 P. F. S., 265.) I apprehend few parents would consent to a child's playing upon a railroad track, or any other known place of danger. But many parents might neglect the precautions necessary to prevent it. In some instances it would require more than merely to caution a child against it. Positive prohibition, followed by punishment for violation, may sometimes be necessary. It too often happens that boys are allowed to wander about the streets, and trespass upon railroad tracks, with very little care or supervision of their parents. Whilst so engaged, injuries of this character are likely to happen. Much as they are to be deplored, and however much our sympathies may be aroused for one so injured, it would be unjust to compel a corporation or individual to make a pecuniary compensation for such accident, when it was the result of the lawful pursuit of a lawful business by such corporation or individual. Aside from this, the defendant-company owed the father of this child no duty. The father owed his child the duty of protection. The company did not. The evidence was properly rejected.

In regard to the suit brought for the child by his father, as his next friend, it is sufficient to say that the child being unlawfully upon the car, the defendant company owed it no duty, and is not liable for the injury. This was the principle upon which Railroad Co. v. Hummell was ruled. In the recent case of Duff v. Allegheny Valley R. R. Co. (Pittsburg Legal Journal of Nov. 26, 1879; s. c., ante, p. 504), it appears that the conductor of a train, in violation of the rules of the company, permitted a boy to sell papers on the train. By the alleged negligence of the company the boy was killed. The right of his mother to recover was denied upon the ground that the boy was a mere trespasser, and the company owed him no duty. It is useless to multiply authorities. The rule is well settled, and is sustained by reason and authority. Moreover, it is demanded by humanity. There are many unfeeling parents who not only neglect but maltreat their children. It

would be cruel to such children to lay down a rule which would make it an object for unprincipled parents to expose them to injury and death upon a railroad track.

Upon the merits, these judgments ought to be affirmed. But we notice that one writ of error has been taken to the two cases. There is no authority for this. It is a practice that we will not encourage. Besides, the Commonwealth loses the tax upon one writ. There should have been a separate writ of error to bring up each case. We have expressed our opinion upon the merits to avoid having our time occupied with the cases again. But we will not enter judgment.

Writ quashed.

TRUNKEY and STERRETT, JJ., concur in quashing the writ, but not in the opinion, from which they dissent.

These two cases present the interesting and important question as to the obligations of railroad companies to trespassers on or about their tracks and rolling stock.

It may be stated, as a general rule of law, that the mere fact of a man's being a trespasser does not deprive him of all rights. The railroad company upon whose property he is trespassing are not, of course, bound to exercise any care or diligence for his safety. This would be unreasonable, since the company has a right to suppose that no one will trespass on their cars or track. But the company is most unquestionably responsible for any intentional or wanton injury done such trespasser.

McCarty v. Delaware & H. C. Co., 17 Hun., 74; Rounds v. D., L. & W. R. R. Co., 64 N. Y., 129; Lovett v. Salem and S. D. R. Co., 9 Allen, 557; Spofford v. Harlan, 3 Allen, 176; Penn. R. R. Co. v. Sinclair, 62 Ind., 301; Lafayette & I. R. R. Co. v. Adams, 26 Ind., 76; Gillis v. Penna. R. R. Co., 59 Pa. St., 129; Phila. & Reading R. R. Co. v. Hummell, 44 Pa. St., 375; Pitts., Ft. W. & Chic. Ry. Co. v. Čollins, 87 Pa. St., 405; Illinois Cent. R. R. Co. v. Hall, 72 Ill., 222; Illinois Cent. R. R. v. Hetherington, 83 Ill., 510; McCarty v. Del. & H. Canal Co., 17 Hun., 74; Kansas Pac. R. R. Co. v. Ward, 4 Col., 30; Rothe v. Mil. & St. P. R. R. Co., 21 Wis., 256.

This rule applies to all persons walking or standing on the company's track, except at the crossing of roads or streets.

Cogswell v. Oregon & C. R. R. Co., 6 Oreg., 417; Ostortag v. Pac. R. R. Co., 64 Mo., 421; O'Donnell v. Mo. Pac. R. R. Co., 7 Mo. App., 190; Lang v. Holliday Creek R. R. Co., 42 Iowa, 677; Van Schaick v. Hudson River R. R. Co., 43 N. Y., 527; Rich. & D. R. R. Co. v. Anderson, 21 Gratt, 12.

And to persons in, about, or upon cars of the company, although not actually in motion at the time of the beginning of the trespass.

Lewis v. Balt. & O. R. R. Co., 38 Md., 588; McMahon v. Northern Central R. R. Co., 39 Md., 438; Chicago, B. & Q. R. R. Co. v. Dewey, 26 Ill., 255; Gahagan v. Boston & L. R. R. Co., 1 Allen, 187; O'Mara v. Del. & H. C. Co., 18 Hun., 192; Memphis & C. R. R. Co. v. Copeland, 61 Ala., 376; Stillson v. Hannibal & St. J. R. R. Co., 67 Mo., 671; Central R. & B. Co. v. Dixon, 42 Ga., 327; Rauch v. Lloyd, 31 Pa. St., 358.

The question how far this rule is modified when the person injured is upon or about the train by the permission of the employees of the company, is a perplexing one. The great preponderance of authority is to the effect that if the person be on the train by invitation of the company, or be there without having paid fare, but is allowed by the conductor to remain, and is not ejected by him in compliance with regulations, the duty of the company towards such a person is the same as that due to every other passenger.