
    (April 6, 1895.)
    HOLT v. SPOKANE AND PALOUSE RAILWAY CO.
    [40 Pac. 56.]
    'Death of Minor Child — Negligence—Contributory Negligence.— Wliere damage is claimed, for death of minor child by reason of the negligence and carelessness of defendant, it must affirmatively appear from the evidence that the accident resulted from the negligence and carelessness of the defendant and that the imprudence or negligence of the plaintiff did not contribute to the result.
    -Insufficiency of Evidence — Case may be Taken from Jury. — When the evidence clearly shows that plaintiff has not made his case the ease may be taken from the jury or the jury may be instructed to bring in a verdict in favor of the defendant.
    (Syllabus by the court.)
    APPEAL from District Court, Nez Perces County.
    Ashton & Chapman and John R. McBride, for Appellant.
    What is actionable negligence? We answer that negligence consists of an omission to perform a duty which the party guilty of the omission is bound to perform toward1 the one injured, or it consists in the doing of some act to the injury of some other which a reasonably prudent man would not do. Definitions of negligence vary in their terms, but this Is the substance of all, which is accepted in the books and by the courts. (Bailey on Injuries, 406; Nicholson v. Erie Ry. Go., 41 N. Y. 525.) Does the law require that a man consult the public as to how he shall improve his own property? . (Ilounsell v. Smyth, 7 Com. B., N. S., 732, 97 Eng. Com. L. 729.) There is not from the beginning to the end, in the testimony of this case, a word of evidence going to show the circumstances under which the accident happened. (Layman v. City of Brooklyn, 29 Barb. 234.) To entitle the plaintiff to recover, it must appear affirmatively that the accident resulted wholly from the negligence of the defendant, and that the negligence and imprudence of the plaintiff did not contribute to the result» {Payne v. Forty-second St. etc. R. R. Go., 40 N. Y. Super. Ct. 8; Stager v. Ridge Ave. Pass. Ry. Go., 119 Pa. St. 70, 12 Atl. 821; Sorenson v. Manesha Paper and Pulp Co., 46 Wis. 338, 14 N. W. 446; Trapnell v. Red Oak Junction, 76 Iowa, 744, 39-N. W. 884.)
    James W. Reid, for Respondent.
    The rule in these cases rests upon the general principle that the defendant owes to the whole community the duty of abstaining from the necessary doing of anything, upon his own ground or with his own property, which shall put others in peril. (BuswelPs Law of Personal Injuries, secs. 74-76, p. 98; Sioux City etc. R. R. Go. v. Stout, 17 Wall. 665; Bayes 
      
      v. Michigan Cent. R. R. Co., Ill H. S. 242, 4 Sup. Ct. Bep. 369; Randall v. Baltimore etc. R. R. Co., 109 H. S. 478, 3 Sup. Ct. Bep. 322; Evensich v. G. G. & S. F. Ry. Go., 57 Tex. 126, 44 Am. Bep. 586; Keefe v. Milwaukee etc. Ry. Go., 21 Minn. 207, 18 Am. Bep. 393; Kansas Gent. R. R. Go. v. Fitz-simmons, 22 Kan. 686, 31 Am. Bep. 203, and notes; Nagel v. Missouri Pac. R. Go., 75 Mo. 653, 42 Am. Bep. 418; Beck v. Garter, 68 N Y. 83.) The appellant should have erected and maintained a fence or other suitable works to protect persons from danger on the public park that it had opened. The •omission to do so was gross negligence. (Shearman and Bed-field on Negligence, secs. 13, 14; Thompson on Negligence, sec. 1232; Addison on Torts, 49; Cooley on Torts, 647; •Sedgwick on Damages, 563; State v. Railroad Go., 52 N. H. •528; St. Louis etc. R. R. Go. v. Terhume, 50 111. 151, 99 Am. Dee. 504; Marcott v. Marquette etc. R. R. Go., 49 Mich. 99, 13 N. W. 374; Mason v. Shawneetown, 77 111. 533.) If there be a conflict of evidence as to the facts, then the question is for the jury to decide. (1 Borer on Bailroads, 476; Delaney v. Milwaukee & St. Paul Ry. Co., 33 Wis. 67; Chamberlain v. Moo din, 2 Idaho, 642, 23 Pac. 177.)
   SHLLIYAN, "J.

This ease was before this court at its November term, 1893, and the decision is reported in 3 Idaho, 703, 35 Pac. 39. The cause was remanded for a new trial, and ■a new trial was had upon the issues made by the original complaint and answer, before a jury, and a verdict found in favor ■of the respondent for the sum of $2,620, for which sum a judgment was entered. Thereafter a motion for a new trial was •made and denied. This appeal is from the judgment and the •order overruling the motion for a new trial. The appellant assigns nineteen errors alleged to have been committed in the trial of the caus.e.

It is insisted that the complaint does not state a cause of action. This question was passed upon in the former opinion of this court (3 Idaho, 703, 35 Pac. 39), and the court there held that the complaint stated a cause of action. It would seem to ns that that decision settled the question, so far as that complaint was concerned; but, as this question is urged with so much zeal, we have again carefully considered it, and are fully convinced that our former decision upon that point was correct.

The first error assigned is the insufficiency of the evidence to justify the verdict. The evidence shows that the well in which the plaintiff’s child was drowned was upon the private grounds of the defendant, and remote from any street or sidewalk, and that at.the time of the accident the child was not traveling on any public street or sidewalk, but was upon the private land of defendant, without the knowledge, invitation, or consent of defendant. Nor is it shown that the defendant had any machinery or other improvements upon said lot, whatever, that would attract children there. The evidence shows-that the defendant company • purchased the lot upon which the well was situated with the intention of using it, with other-lots, for depot grounds; that the roadbed was graded along the-northerly side of said lot, along the southerly bank of the Clear Water river. Thereafter, about February, 1891, work was stopped. The contractors quit work and nothing furtherlias been done toward the completion of said road. No depot was erected, and the lots purchased for its site remained the same as when the former owners left them, after removing their improvements therefrom. The defendant did not occupy said lots for any purpose whatever. The evidence also shows that, when the person from whom the defendant company purchased the lot on which said well was situated removed her improvements therefrom, she put actable top over the mouth of said well. It is also shown that said well was covered many times, by divers persons, with planks spiked down, and with boards covered with cord wood; that campers or others would remove the covering, and leave the well open. It is shown that the well was covered as late as the fifteenth day of April, 1891, with boards, with a stick of timber across them. The mouth of the well was entirely covered. The evidence shows that the well was properly covered, "and was afterward uncovered by-strangers, without the knowledge or consent of the^defendant. The evidence further shows that it is about thirteen hundred feet from the premises where the plaintiff resided to the well in question; and for a parent to permit his two and one-half year old child to stray away from home that distance shows that the parent was very careless, to say the least. We are fully satisfied from the evidence that the defendant company exercised due care in keeping said well covered. If the rule contended for by respondent prevailed, the defendant would be hable for damages if a child climbed one of the trees growing on said lot,, and fell therefrom, and was injured or killed. The tree in the case should be considered as something attractive to children, and the owner must cut it down, or so protect it that a. child could not reach it to climb it, or be liable in damages. There is nothing in the evidence showing how the child came-lo fall in the well. It does not show whether it was thrown in, or accidentally fell in. It appears that a playmate was-with the child, and the evidence does not show but that the-child was carelessly pushed into the well. This question is-left wholly to speculation, inference, or conjecture. In Sherman v. Lumber Co., 77 Wis. 22, 45 N. W. 1079, the court says^ “Every party to an action at law has a right to insist upon a verdict or finding based upon the law and the evidence in the case, and not, in the absence of the evidence, upon mere inference, conjecture, or personal experience.” In Lehman v. City of Brooklyn, 29 Barb. 234—which is a ease where a child was found drowned in a well, the cover of which had been' left open, and it was admitted to have been negligence to leave-the well open, it being situated in a. public street — the court says: “To entitle plaintiff to recover, it must appear affirmatively that the accident resulted wholly from the negligence of the defendant, and that the negligence or imprudence of the-plaintiff did not contribute to the result.” If that rule be applied to the case at bar, the plaintiff has totally failed to make his case. He has failed to show negligence on the part of the defenclant, and has failed to show that negligence on his part did not contribute to the death of the child.

The ninth error assigned is that the court erred in refusing to give to the jury the following instruction requested by defendant at the time both parties rested the case, to wit, “You are instructed that there is not sufficient evidence in this case to justify a verdict for the plaintiff, and you will therefore return a verdict for defendant.” This instruction should have been given, and it was prejudicial error to refuse it.

In our view of the case, it is not necessary for us to pass upon all the errors assigned. The evidence clearly Shows that the plaintiff is not entitled to recover. The judgment is reversed, and the court below is ordered to enter judgment in favor of the defendant.

Morgan, C. J., and Huston, J., concur.  