he was injured within the 150 feet, as the conductor set this brake immediately after his fall. But it is shown that brake shoes raise and lower when set hard if the train is in motion, so as to leave a little space between the shoe and the wheel. It is possible, then, that the clothing was caught after the brake was set. If before, owing to the loosening of the shoe, the cloth might have worked out. As, in backing, the wheel would naturally draw or carry everything next to it up to the end of the brake shoe, the cloth might have been caught after the brake was set. This would be more likely to occur after the wheel had passed over, as the jar would tend to raise the brake, and the mashing of the leg within the cloth would tend to hold that close to the wheel. We cannot say, from the record before us, whether the trousers were caught when the brake was set or at a time subsequent. It was a circumstance to go to the jury to aid in arriving at a just conclusion. But it is said that the brakeman knew nothing of the accident until the train had stopped. Both of them so testified. Mitchell testified that he heard Strong, one of the brakeman, tell Jordon not to pull the pin, as there was some one under the train; that then the train had moved but a car's length after Neet's fall, and that the brakemen made no effort to stop it by setting brakes or otherwise. Davis testified that he saw the accident; called to the brakemen, who were up towards the engine; ran and told them that a man was under the train, when they gave signals, but made no other effort to stop it. The engineer said that he received no emergency signal, but, if he had he could have stopped the train within a car's length. It was moving slowly when Davis went to where the brakemen were, and he says that between the time of the fall and when he informed them of Neet's peril, it had moved about fifteen feet. As he was forty feet beyond the caboose, and the train about eight hundred feet long, we take it that his estimate of the distance the train had moved is not reliable. It is said that no man with feeling would have refused to stop the train, but such an omission may result from a mistaken conclusion that all possible injury has been done. It should be added both brakemen deny receiving any information from Davis. No pressure was being applied by the engine, and by the application of brakes the train could have been stopped within 100 feet. The mere statement of the evidence shows the issue was for the determination of the jury. Again, it is argued that the injury to Neet was so immediately connected with his own negligence in jumping upon the train, and the fall therefrom, that he cannot recover. It is settled in this state that, even though the plaintiff was negligent, if the defendant, knowing this, might have avoided injury by the exercise of reasonable care, and failed to do so, recovery may be had. Benton v. Railroad Co., 55 Iowa, 496, 8 N. W. Rep. 330; Morris v. Railroad Co., 45 Iowa, 29; Sutzin v. Railway Co. (Iowa), 63 N. W. Rep. 712; Orr 2. Railway Co. (Iowa), 62 N. W. Rep. 851; Ford v. Railway Co. (Iowa), 75 N. W. Rep. 650. In Ferguson v. Railway Co., (Iowa) 69 N. W. Rep. 1026, it was held that the evidence did not warrant the finding that the employees of the defendant had knowledge of Ferguson's peril. We conclude that the evidence was such as to warrant the submission of the issue to the jury, and the judgment is affirmed. MISSOURI PACIFIC RAILWAY COMPANY v. Supreme Court, Kansas, November, 1898. CHILD ON RAILROAD TRACK RUN OVER BY TRAIN. - The employees of a railroad company, operating a passenger train, on schedule time, at a point where the presence of trespassing children is not to be suspected by them, who perceive a small object upon the track, of a nature they do not understand, but which they have no reason to believe, from its appearance, or any of the circumstances of the case to be a child or any living thing, or anything of substantial value, which can be injured, or do injury to the train or passengers, are not required to stop or slow up until its nature can be ascertained by them; and if it be a child, but the fact is undiscoverable by them until too late, with approved machinery and appliances, and the exercise of the highest skill and effort upon their part, to avoid injury to it, they will not be considered negligent. (Syllabus by the Court.) ERROR from Court of Appeals, Southern Department, Central Division. From a judgment of Court of Appeals (51 Pac. Rep. 923) affirming a judgment for plaintiff, defendant appeals. J. H. RICHARDS and C. E. BENTON, for plaintiff in error. DOSTER, CH. J. — This was an action to recover damages for the death of an infant, two years and four months old, caused, as alleged, by negligently running upon and over it with a train of A verdict and judgment for $550 were rendered for plaintiffs in the trial court. Upon proceedings in error to the Court of Appeals the judgment was affirmed. 51 Pac. Rep. 923. The case has been cars. ordered here for review. The only question necessary for consideration arises upon the special findings of the jury as to the circumstances of the accident. Such of the findings as are most material to this question are as follows: "1. Did the engineer when he discovered an object upon the track make any effort to slacken the speed of his train, so that it could be stopped, if necessary, before passing over the object? A. Not when he first discovered the object. 2. Could the engineer have stopped the train before striking the child, had he taken such measures as were in his power at the time he first discovered the object on the track, and before he knew and recognized it to be a child? A. Yes. 3. Were the engineer and fireman in doubt as to the nature of the object when they first discovered it upon the track, and until they recognized it as a child? A. Yes. 4. How far was the said Bertie Prewitt from any public highway or crossing at the time of the accident? A. About 147 rods. 5. How far was the house in which the plaintiff and said Bertie Prewitt lived from the place where the said child was injured ? A. About forty-seven rods." "10. Is it not true that, when the engineer in charge of the engine first discovered the object which afterwards proved to be the said Bertie Prewitt, he believed that said object was a piece of paper or weed which had blown upon the track? A. No. II. Is it not true that, when the engineer first discovered the object which afterwards proved to be Bertie Prewitt upon the track, that he believed it to be something that could not be injured, and which would not endanger his train or the passengers upon it? A. Yes. Prior to the time that the engineer or fireman discovered that the said object was a child, did they, or either of them, believe, or have any reason to believe that a child might be upon the railway track at that point? A No. A No. 13. Is it not true that from the time the said object was first discovered upon the track by the engineer and fireman, up to the time when they discovered that it was a child, both said engineer and fireman believed that it was a piece of paper or weed, or something of that character, which could neither be injured nor do damage to the train? A. No." "15. Was the place where said Bertie Prewitt was injured a place that was frequented by children, or where children were in the habit of playing or being? A. No. 16. From the time the object which afterwards proved to be Bertie Prewitt was first discovered by the engineer or fireman, did the said Bertie Prewitt move, or give any signs of life which could be noticed by either the fireman or engineer? A. No." "19. Did either the engineer or fireman, prior to the time they, or either of them, discovered that said object was a child, have any idea that it was any living thing? 12. A. Yes." "52. Does not the evidence show that the child was at and before the time it was killed, lying motionless on the southern slope of the surfaced earth, between the rails? A. Yes. 53. Does. not the evidence show that, when the engineer and fireman first discerned the child, they did not know what it was, but thought it was a paper or weed? A. Yes. 54. Does not the evidence show that neither the engineer nor the fireman knew that it was a living creature until after the engineer asked the fireman what it was, and just prior to the time that he reversed his engine and applied the brakes. A. Yes. 55. Does not the evidence show that if the engi neer had doubt at all as to what the character of the object was, up to the time that he discovered that it was a child, and the time when he applied the brakes and reversed his engine, he had no thought that it was a child or human being? A. Yes. 56. Does not the evidence show that, as soon as the engineer discovered it was a child, he did everything in his power to stop the engine and train and save its life? A. Yes." "58. Is it not true, as established by the evidence, that the train was equipped with the best modern appliances, and with what is known as the Westinghouse Improved Air Brakes,' for the stopping of the engine and train in cases of emergency, and that they were in good working order at the time of the accident? A. Yes. 59. Is it not true that the engineer in charge, Peter Lahey, was above the average engineer, in sobriety, good habits and skill? A. Yes. 60. Does not the evidence show that at the time of the accident the engineer was in good health, and in full possession of all his faculties? A. Yes. 61. Does not the evidence show that the fireman, Leroy Ligitt, was a skilful fireman and a man of good habits, and faithful in the discharge of his duty? A. Yes; according to testimony." Other findings not important to set out in full, disclose the fact that a ditch and a hedge fence, with an opening in it, intervened between the house of the child's parents and the place of the accident. From all these findings it would appear that the child had wandered from the care of its parents to the railroad track, and had laid down 147 rods from any public highway crossing, and was probably asleep at the time of its death. Such cases greatly move the sympathies, and incline us all to try to find for the stricken parents some balm to assuage their grief. The law, however, will not impose penalties upon an innocent cause of human sorrow, however poignant the suffering may be. Do the findings show fault upon the part of the railroad company through the negligence of its employees? The findings numbered 10 and 53 would appear to be contradictory, as to what the engineer thought the object on the track was when he first discovered it. So far as the fact inquired about, and concerning which answers were made, is involved in the substance of the case, a claim of reversal might be founded upon these contradictory findings. We will not, however, base our judgment upon any theory of inconsistency in the findings, but upon the substantial facts of the case disclosed by them as a whole. These substantial facts were that the child was not run upon at a public highway crossing, nor at a place frequented by children, and that there was nothing in its appearance to indicate to the enginemen that it was a human creature, or any living thing which could be injured, or do injury to the train or passengers, until it was too late to avoid running over it. In view of such fact, can the railroad company be rightfully accused of negligence? We feel sure that it cannot. Regard must be had at the outset, in the consideration of such cases, to the duties resting upon railroad companies as public carriers of passengers and property, and to the manner in which those duties must, of necessity, be discharged. Trains must be run upon schedules of time. They cannot conform to the schedule, if obliged to stop at the appearance upon the track of all objects, the nature of which is only discernible upon near approach. Rags, papers, weed, fowls, and small animals are perceived and run over between all the stations, in the travel of a train. To stop or even to slow up at the sight of all these objects would entail upon the trainmen a consumption of time and a degree of carefulness which would make the business of railroading a difficult, burdensome, and unsystematic one indeed. The obligations resting upon railroad men in the operation of trains rise or increase, of course, with the thickening or increase of warning circumstances of peril. So they do in all human affairs where dangerous agencies are employed. The failure to rise in care. and diligence to the height of a dangerous occasion, as indicated by circumstances, is negligence. If, however, no circumstances indicating danger are known or perceivable, though they really exist, it cannot be said that negligence has occurred. In this case, had the object perceived by the trainmen been at a highway crossing, where the presence of small children might be suspected, or had it been at a place frequented by them for play, near a school house, or in or on the outskirts of a village, the case might be different. A railroad company owes some duty to trespassers. It must not wantonly run its trains upon them, even though they be trespassers. It must have a care for them at places and under circumstances where trespassing is liable to occur, but it does not owe to them, however guiltless of intelligent wrong conduct they may be, to care for them in out of the way and unusual places, unless signs and circumstances |