(99 W. Va. 85, 128 S. E. 275.)

different in principle from the instant case. The child there run over was playing on and near a spur track when a car was "kicked" onto the spur in charge of a brakeman. He stopped the car and removed the child from danger. The engine a short time afterwards came on the side track to place the car thus "kicked" in (by flying switch), passing the child near the track by a pile of lumber. Upon returning after placing the car a short distance away the child was run over, the crew not knowing until a short time afterwards that the fatal accident had occurred. The negligence there consisted in the knowledge of the presence of the child in a place of danger and the failure of the crew to take such care in the return of the engine after placing the car as was required from their knowledge of the child's situation. The brakeman, after removing the child from the track, knew that the engine would immediately return, and the court said it was his duty to place the child in a place of safety or take such care in handling the engine as not to injure it. Two minutes elapsed from the time the engine passed the child at the lumber pile near the track until the engine returned and the accident occurred. The dwelling house of the child was 50 feet from where the fatal tragedy occurred. The engineer, fireman, and brakeman observed the child near the lumber pile when the engine first passed to place the car. The time was about 6:30 p. m. in January. Knowing the child was there, it was negligent in them not to keep a careful lookout when returning two minutes afterwards and thus avoid running over it. Judge Goff dissented, without stating his reasons. When the train in the instant case was moving on the side track, plaintiff was in a place of safety, and with a companion who warned him to let the train alone; that he was too small to ride the train. The brakeman told him not to ride it. That the child was a trespasser, there can

after it had discovered him, or ought to have discovered him by the use of ordinary care, in a situation of danger. In Swartwood v. Louisville & N. R. Co. 129 Ky. 247, 19 L.R.A. (N.S.) 1112, 130 Am. St. Rep. 465, 111 S. W. 305, it was held that a railroad company is not compelled to maintain a lookout for children who are in the habit of jumping on and off its cars while in motion in cities and other populous places. And in St. Louis Southwestern R. Co. v. Davis, Tex. Civ.

App. -, 110 S. W. 939, it was held that while it was the duty of the train crew to keep a lookout for trespassing children who might be on the track in front, that it was not their duty to inspect their trains after setting them in motion, for the purpose of preventing children from leaping on the cars as they pass. The opinion says: "The perils peculiar to railway operation grow out of the danger of collisions with persons and objects upon the track in front, and the special duty of keeping a lookout ahead is important in order to avoid such results. Those in charge of trains would be subjected to an unreasonable requirement if it should be exacted of them to watch both the front and the rear of their trains. The latter duty could be exercised only at the expense of the former."

And the opinion quotes with approval § 3311 of Thompson on Negligence, in which the author says: "It [railroad company] is not bound to see that children do not climb upon its trains at street crossings, and is not chargeable with negligence for failing to adopt precautions against their doing it."

The doctrine of our case is, as before stated, that a railroad company's duty to children trespassers is to keep a reasonable lookout for

ANNOTATION.

Duty of railroad to keep trespassing children from getting on cars. [Carriers, § 303.]

to keep a lookout for boys inclined to climb upon its moving freight trains. Ibid.; Carson v. Atchison, T. & S. F. R. Co. (1918) 103 Kan. 138, 172 Pac. 1000; Swartwood v. Louisville & N. R. Co. (1908) 129 Ky. 247, 19 L.R.A. (N.S.) 1112, 130 Am. St. Rep. 465, 111 S. W. 305.

The court said in the last case that this rule also applies from the very necessity of the matter, without respect to the age or condition of the infant trespasser.

In Vertrees v. Newport News & M. Valley R. Co. (1894) 95 Ky. 314, 25 S. W. 1, where a boy was killed in attempting to jump upon a moving switch engine, the court said that the place was within the private yard of the railroad company, where the boy had no right to go, and the railroad's servants were not required to anticipate or look out for his presence.

The engineer in charge of a switch engine in railroad yards is not bound to stop his train simply because he sees boys in the highway and close to the track, though not in a place of danger, until he sees some act on their part indicative of an attempt to board the cars, even though he knows of the custom of boys to jump upon the trains. Horn v. Chicago, M. & St. P. R. Co. (1904) 124 Iowa, 281, 99 N. W. 1068.

And in Green v. Maysville & B. S. R. Co. (1904) 25 Ky. L. Rep. 1623, 78 S. W. 439, an action for the death of a boy by being run over while attempting to get on a freight train near a public crossing, it was stated that the mere fact of his presence near the track, but not in a place of danger, did not require those in charge of the train to stop and warn him to get farther away, and they could not have anticipated his doing so reckless a thing as "swinging" on the train as it passed him.

A railroad company is not required to employ trainmen to keep boys from jumping on its moving trains. Wilson v. Atchison, T. & S. F. R. Co. (1903) 66 Kan. 183, 71 Pac. 282. The court said that the task of keeping boys from stealing rides and hopping upon cars slowly moving through towns or

railroad yards was too impracticable and burdensome to justify a rule requiring railroad companies to keep children off their cars; and that so to guard trains as to keep boys entirely away from them would require a host of employees, and fix a standard of responsibility which had never received countenance; and that such a standard of duty and responsibility could not be invented and applied by the courts without legislation, and the legislature, instead of requiring railroad companies to provide guards to keep boys from jumping upon moving trains and stealing rides, had declared such action on their part to be a misdemeanor.

And in Berg v. Duluth, S. S. & A. R. Co. (1910) 111 Minn. 305, 126 N. W. 1093, where it appeared that boys occasionally climbed upon box cars. during switching operations in the railroad yards, the court said it was not the duty of the railroad company, where the trainmen chased the boys away whenever they saw them, to take more active or different measures to break up the practice; that the crew usually consisted of a conductor, three brakemen, the engineer, and a fireman, and that it would be unreasonable to require the company to employ a greater number of brakemen than necessary for its purposes; and that, while a number of watchmen might have been employed to patrol the grounds and drive the boys away, or cause their arrest for trespassing upon the railroad grounds, the law did not require the railroad company to do so.

And it is stated in Oregon R. & Nav. Co. v. Egley (1891) 2 Wash. 409, 26 Am. St. Rep. 860, 26 Pac. 973, that no court has gone so far as to hold that railroad companies are the absolute insurers of the lives and limbs of boys who, against their express command, insist upon trespassing upon their property; and that the only way a railroad company could prevent this would be to keep a sufficient number of guards to detect boys in their attempts to board the cars or engines.

A railroad company is not required to guard its cars against the unobserved intrusion of even very young

128); or to see that children do not climb upon a standing train at a street crossing (Haberlau v. Lake Shore & M. S. R. Co. (1898) 73 Ill. App. 261); or to keep a flagman there to prevent children from going upon the standing train (ibid.). In the Haberlau Case a child of six years was injured in attempting to cross the platform of a passenger coach; and it appears from the opinion that the age of the child was held immaterial in determining the duty of the railroad company in this respect.

A railroad company is under no duty to have men posted at proper intervals on the top of freight trains to keep vigilant watch to see that children do not attempt to climb upon the cars. Atchison, T. & S. F. R. Co. v. Plaskett (1891) 47 Kan. 107, 26 Pac. 401, 3 Am. Neg. Cas. 454, rehearing denied in (1891) 47 Kan. 112, 27 Pac. 824. In this case a freight train was standing across a crossing by reason of having come to a full stop momentarily before crossing an intersecting railroad, and the engineer, fireman, and brakeman were all forward on the engine to see if the track was clear, and a schoolboy attempted to climb over the train to go home.

This rule applies also in populous cities. Atchison, T. & S. F. R. Co. v. Plaskett (Kan.) supra.

But it was held in Burke v. Ellis (1900) 105 Tenn. 702, 58 S. W. 855, to be negligence per se to permit a child of six years to climb on and ride upon an open car, loaded with loose earth, liable to slip and throw the child off

at any time, and negligence not to keep children away from such car under such circumstances.

And in Thompson v. Missouri, K. & T. R. Co. (1895) 11 Tex. Civ. App. 307, 32 S. W. 191, where a young boy was killed in attempting to board a moving freight train at a public crossing, and it was alleged that children were, within the knowledge of the trainman, in the habit of boarding trains at such crossing, and that, if a guard or lookout had been stationed at such crossing, he would have seen the child attempting to board the train, and could, by signaling the train, have prevented the injury, it was held that, although there was no statute law in the state requiring railroad companies to keep guards and lookouts at public street crossings, still, under their duty to exercise ordinary care, it might be negligence in some instances to fail to provide such guards and lookouts.

And in Louisville & N. R. Co. v. Steele (1918) 179 Ky. 605, L.R.A. 1918D, 317, 201 S. W. 43, where a boy was injured while getting off a moving coal car, it was held that the railroad company, whose conductor had for a long time permitted boys to catch on his train, was under the duty of anticipating that the injured boy would do what the boys had been in the habit of doing, and therefore under the duty of exercising ordinary care to anticipate and discover his presence on the cars, and to prevent injury to him when his presence was or could have been discovered.

G. V. I.

EMERSON-BRANTINGHAM IMPLEMENT CO., Appt.,

V.

A. J. COOK et al., Respts.

Minnesota Supreme Court - December 4, 1925.

(- Minn. 206 N. W. 170.)

Judgment, § 238lien- property held under unrecorded deed.
1. A judgment is a lien upon the title of the judgment debtor holding
Headnotes by DIBELL, J.