
    The Cleveland, Terminal and Valley Railroad Company v. Marsh.
    
      Competency of testimony — Qualification of witness — May use; knowledge at time of testifying• — Volunteer assisting servant of corporation, entitled to protection, when — Proof required to establish negligence.
    
    1. It is error to allow a witness to testify, over the objection of the other side, as to the identity of a person, without first qualifying himself by showing that he has some knowledge on the subject.
    
      2'. A witness should testify in accordance with the knowledge he has at the time of testifying, and is not confined to the-knowledge he may have had at a previous time.
    3. One who is invited by a servant of a corporation in charge of1 its work or service to assist him therein, and does so with, some purpose or benefit to be subserved in his own behalf’ in addition to the purpose of so assisting, is not a volunteer, and is entitled while so assisting, to be protected, against the negligence of the servants of the company.
    4. While a railroad company owes a duty to the public to keep-its tracks free from unnecessary danger along where the-public are allowed to use such tracks as a way for travel, one who is not using such tracks as such way, can not be-heard to complain of the breach of such duty, and in case of injury to him, can not bring the breach of such duty to his aid in attempting to recover for an injury caused by reason of some other alleged negligence of the company.
    5. To establish negligence, there should be either direct proof’ of the facts constituting such negligence, or proof of facts from which negligence may be reasonably presumed.. There should be no guessing by either court or jury.
    (Decided October 16, 1900.)
    Error to the circuit court of Summit county.
    The action in the court of common pleas was for the recovery of damages for a personal injury suffered by Raymond G. Marsh, then of the age of ten years, by reason of the explosion of a signal torpedo on the track of the railroad of the plaintiff in error. The injury occurred at the village of Myersville, and at that place the railroad runs north and south, and the main street of the village running east and west ■crosses the railroad, the station and water tank being on the south side of the street, and a switch stand about forty rods north of the street, and another about a quarter of a mile south of the street. The railroad company had employed Milo Swinehart as station agent, and it was his duty to light and place upon the switch stands each evening certain lights supplied by the company for the purpose, and to bring the lanterns in each morning and clean and fill them so as to have them ready for use the next evening. The station agent without authority, and without the knowledge of the company, employed the Marsh hoy to attend to the lamps, and when on his way to the north switch stand with the light on the evening of April 18, 1896, he found a signal torpedo by the side of one of the rails at a point about twenty rods north of the street, and not knowing its dangerous character he put down his lamp, and exploded the torpedo by pounding it with a stone, and the explosion seriously injured him. The petition averred, and the evidence introduced tended to prove, that people, including children, were generally for ye?rs accustomed to pass along and upon the railroad where the injury occurred, without hindrance and with the full knowledge of the railroad company.
    On the day of the accident at the hour of 12:33 noon, a local freight train arrived at Myersville station from the north, and ran upon the switch north of the public highway, entering the same at the north end, and there remained until a passenger train, also from the north, which arrived at 12:47 P. M., had passed, and a passenger train from the south, which arrived at 1:01 P. M., had also passed; at 1:03 P. M. it pulled out onto the main track from the south end of the switch, which was about one-fourth of a mile-south of the highway, and departed south.
    Upon the trial there was evidence admitted over-the objection of the defendant below, which tended, to prove that one of the crew of the freight train obtained a signal torpedo from the station agent, while the train was on the side track that day, and then proceeded toward the north end of his train. As to who placed the torpedo upon the railroad track,, or how it came to be there, there was no evidence except the above as to one of the train crew having-that day obtained such torpedo from the station agent.
    At the close of plaintiff’s evidence, counsel for-the railroad company moved the court to rule out all the evidence relating to the travel of people generally upon and along the railroad track north of the highway, which motion was overruled and exceptions, taken.
    There were also proper exceptions saved to the introduction of certain testimony, and to the refusal of the court to charge as requested, and to the charge-as given, which fully appear in the opinion.
    There was a verdict and judgment for the plaintiff below, which was affirmed by the circuit court, and now the railroad company comes here seeking-to reverse the judgments of the lower courts.
    
      J. P. Bradbury and Allen & Cobbs, for plaintiff in error,
    cited the following cases: Flower v. Pernn, R. R. Co., 69, Pa. St., 210; Rolling Mill v. Corrigan, 46 Ohio St., 283; Wood’s Master and Servant, Sec. 455; 
      Osborne v. Railroad Co., 68 Me., 49; Church v. Railroad Co., 50 Minn., 218; Mayton v. Railroad Co., 63 Texas, 77; Barstow v. Railroad Co., 143 Mass., 535; Wisham v. Rickards, 136 Pa. St., 109; Cooper v. Railroad Co., 36 N. E. Rep., 272; Railway Co. v. Bingham,. 29 Ohio St., 369; Lane v. Atlantic Works, 111 Mass., 136.
    
      Tibbals & Franks, for defendant in error,
    cited the following cases: Railway Co. v. Shields, 47 Ohio St., 387; Osborne v. Railway Co., 68 Me., 49; Barstow v. Railway Co., 143 Mass., 535; Evarts v. Railway Co., 57 N. W. Rep., 459.
   Burket, J.

The first question arises as to the introduction of part of the evidence by Dr. Bauer. He testified that on the day of the accident he was in the station when the freight train from the north pulled in upon the side track, and that “While in there one of the train crew, I took it to be, came in and held a conversation -.” Objection being made, counsel for plaintiff said: “Describe this man that came in.” Counsel for defendant, still objecting, said: “ He may describe the man.” The witness answered: “He was a stranger to me, but he was a trainman, one of the train crew.” The court was asked to exclude and rule out this testimony, but refused to do so, to which there Avas an exception saved. This testimony was. not competent. When a party offers evidence he must first qualify his witness to speak as to the subject matter. Here the witness failed to show that he was qualified to say whether the man was one of the crew or not. And objection being made by counsel for the defendant, it was incumbent upon the plaintiff to show that the witness had some means of knowledge upon the subject, and was not just merely guessing at it.

The same witness also testified that this trainman ■obtained an object from the station agent, and that the trainman and the station agent had some conversation about it, and the station agent said, “Here is one, I have got one,” and handed it to the trainman. That the object was a metallic box about three inches long, two and a half inches wide and three-fourths of an inch thick, with rounded ends. That at the time he did not know what it was, but that he knew at the time of testifying that it was a signal torpedo. To all of this testimony there was objection and proper exceptions saved. As the witness had not qualified as to whether the man who came into the station was a trainman or not the evidence as to the conversation was incompetent.

If the witness did not know on that day what the ■object so delivered by the station agent was, but by knowledge subsequently obtained knew at the time he testified that it was a signal torpedo, it was competent for him to testify to the fact as he knew it to be at the time of testifying. Runyan v. Price et al., 15 Ohio St., 1. A witness may see a stranger and not know who he is, but by knowledge subsequently •obtained, as by acquaintance and association with him he may be able years afterwards to testify positively who the stranger was. A witness should testify as his knowledge is at the time of testifying, and not as his ignorance was at a previous time.

Upon the trial counsel for the railroad company requested the court to charge as follows: except to place the north switch light in position, pursuant to the request of the station agent, Swinehart, then I say to you that the fact that the railroad company had permitted the public to travel over this part of its property without objection, would not entitle the plaintiff to receive, at the time of his injury, that degree of protection from injury which such public would have been entitled to receive, nor that degree of protection he would have been entitled to receive, had he been upon the property as one of the public.”

“If you find that at the time the plaintiff, Raymond Gilbert Marsh, received his injury he was on the property of the railroad company for no purpose

This request was refused, and the court charged the jury upon the same subject as follows:

“And I say to you further upon this point that it is negligence for the servants of such railroad company, wantonly and needlessly and without notice, warning or other precaution, to place and leave exposed to observation, at such point or place on its railroad where the public, including children, are and have been so permitted by the company to travel and pass, an apparently harmless, but in fact highly explosive and dangerous object like a signal torpedo, easily picked up and handled by children and likely to attract them, and known to such servants to be such.
“The question, therefore, gentlemen, comes to this: It is admitted that this boy was injured by the explosion of a signal torpedo on the railroad track. The plaintiff charges that it was placed there and left unexploded, and that at that time and place, and under those circumstances, the track having been commonly used for a long time by the public and by children as a passageway, with the knowledge of the defendant, and with its permission, and that the defendant was guilty of a want of ordinary care in such use of its property, and by placing this torpedo upon its tracks and permitting it to lie there unexploded, whereby the plaintiff was injured. Now, this is the plaintiff’s claim. * * *
“The burden of proof, as I have stated to you, is upon the plaintiff to establish these propositions by a preponderance of the evidence. He must show you that the railroad company permitted its tracks and right of way to be used by the public and by children in the manner that I have already stated to you, and that while he was there upon that track or passing along the same, under the circumstances stated in his petition, that he was injured by the explosion of this torpedo and that the torpedo was placed there and left unexploded by the defendant, its servants or agents.”

Proper exceptions were saved to this charge, and to the refusal of the court to charge as requested. The court erred in refusing to charge as requested, and in the charge as given, and in refusing to rule out the evidence as to the travel of the public, including children, upon and along the railroad, and also in receiving such evidence. The error occurred by regarding the principles of the case of Harriman v. Railway Company, 45 Ohio St., 11, as applicable to the facts of this case. In that case an unexploded signal torpedo was knowingly and recklessly left on the railroad track at a point where the public, including children, had for years been permitted to cross the track, using it as a path of travel, and the torpedo was picked up by a boy at that place while using the path of travel in the usual manner, as one of the public passing and repassing along the same, while in the case at bar the torpedo was not picked up by the boy while passing along and upon the railroad track as one of the public, but while going upon the track in the performance of his engagement with the station agent to light the lamp at the switch stand. His being upon the track at that time was not induced by the fact that the track had been used for years as a line of travel by the public, but by reason of his engagement to light the lamps. His rights and the liabilities of the railroad company would have been the same if the track of the railroad company had never been used as a line of travel, or if the injury had occurred while the boy was going to the switch stand south of the highway where the railroad was not used as a line of travel, so far as appears in this case. The principle is the same as that held in Kelley v. Columbus, 41 Ohio St., 263, 270, where the court say: “If there had been a business room in the building, or upon another part of the lot which would have been an implied invitation to the public to go there, it still would not help the plaintiff when he admits that he did not go upon the lot for any such purpose.”

Counsel for the railroad company also requested the court to give the following charges to the jury which were refused and exceptions taken:

“2. I say to you further that if you find that he was upon that part of the property of the railroad company where he received his injury, at the time he received his injury, only for the purpose of placing the north switch light in position at Swinehart’s request, then his right to be there was no greater than that of a licensee and the company was under no obligation to do more than refrain from inflicting wilful injury upon him
“3. I say to you further that, if you find that plaintiff was at the place where the injury was received for no purpose except to carry out the request of Swine-hart as to the switch light, then and thereby he assumed all risks of injury, short of wilful injury, that might result from the negligence of any servant of the company.
“4. If you find that any member of the train crew of the local freight train which reached Myersville between twelve and one o’clock P. M., on the day of the accident left an unexploded torpedo upon the property of the railroad company, where the plaintiff received his injury, which torpedo was found and exploded by the plaintiff .at that place while there pursuant to the request of Swinehart to place said north switch light in position, and in consequence thereof he received the injuries complained of, then I say to you further that such act of said member of that train crew would not constitute negligence of the company of which the plaintiff could in law complain.
“5. The petition in this case does not aver that the defendant had knowledge of the fact that the plaintiff was lighting and carrying the switch lamps back and forth along the railroad or that the plaintiff was going back and forth along the railroad for any purpose, and unless you can find from the evidence that the injury to the plaintiff was willfully and intentionally caused by the defendant, then your verdict should be for the defendant.”

There was no error in refusing these requests.

The requests are all founded upon the theory that one who, upon request, voluntarily assists the servant of a corporation in the performance of his duties without the knowledge of the officers, the servant having no authority to procure such assistance, is a volunteer, and can recover from the company only for wilful injuries inflicted upon him. Upon the hearing this view was persistently urged by counsel for plaintiff in error, both in their brief and upon oral argument.

Where a person at the request of a servant of a corporation, assists such servant in the performance of his work without any purpose or benefit of his own to be served by such assistance, he is regarded as a mere volunteer, and the requests to charge would be applicable to such a case. But where he has a purpose or benefit of his own to be served by such assistance, in addition to the purpose of assisting the servant, he is regarded as acting in his own behalf, with at least the acquiescence of the company. A trespasser who is upon the company’s premises wrongfully, and a mere volunteer, stand upon substantially the same footing, and are entitled to recover only for such negligence as occurs after the servants of the company discover their perilous situation, that is for wilful or intentional injury. But there is a class between mere volunteers and trespassers and partaking somewhat of the characteristics of each, that is where the person assists the servant at his request, not only for the purpose of assisting in the work of the master, but also for a purpose and benefit of his own. In such cases it cannot be said that he is wrongfully upon the premises, because he is invited by the servant in charge. The master may not have assented, but neither has he dissented, and being there upon the invitation of the servant in charge and there being no dissent of the master, he is regarded as being there by sufferance. And being there by sufferance he is rightfully there for the double purpose-of aiding the servant, and thereby furthering the interests of the master, and of furthering his own private interests in his own behalf and for his own purposes and benefits. In such cases the person so assisting cannot be held to thereby become a servant of the master, because the servant inviting such assistance has no power or authority to employ other servants, and therefore the law of fellow servants is not applicable. As such assistant is not a trespasser, and not a fellow servant, and not a mere volunteer, the law assigns to him without name the position of one, who, being upon the premises of another by the sufferance of such other, performing labor or service for his own purpose and benefit in his own behalf, is entitled of right to be protected against the negligence of the owner of the premises or his servants. The case of Street Railway Co. v. Bolton, 43 Ohio St., 224, was decided upon this principle, although the principle is not very clearly stated in the report of the case. The case of Eason v. S. & E. T. Ry. Co., 65 Texas, 577, belongs to the same class. The court in that case say: “The principle upon which a recovery is allowed is this: The injured person is not a volunteer, but engaged at the request or with the permission of the railway’s agents in a transaction of interest as well to himself or his master as to the railroad company, and this entitles him to the same protection against the negligence of the company’s servants as if he were at the time attending to his own private affairs. Though, performing a service beneficial to both, he is doing so in his own behalf, and not as a servant of the company. The request or acquiescence gives him the right to perform the' service; the fact that he acts in his own behalf, however beneficial his labors may be to the company, gives him the right to be protected against the negligence of the company’s servants.”

There is also a clear explanation of this principle in Church v. C. M. & St. P. Ry. Co., 50 Minn., 218, 221. Many other cases illustrating this principle in its application to different facts are found in the above cases, and in cases cited by counsel in their briefs and which the reporter will carry into the report of this case.

As the boy in this case by his engagement with the station agent was to perform a service in lighting and cleaning the lamps beneficial to the company on the one hand, and to himself on the other, as he was to receive and did receive pay from the agent' for his services, we think that he was on the railroad at the time of the injury by the sufferance of the company, not as a servant of the company, nor as a trespasser, nor as a mere volunteer, but as one performing a service in his own behalf and for his own purpose and benefit and entitled of right to be protected against the negligence of the servants of the company.

One case is cited by counsel for defendant in error, and we know of no other, Rhodes v. Georgia R. R. & Banking Co., 84 Georgia, 320, where it is in effect held that where a child under the age of discretion assists, upon request, the servant of a railroad company in the performance of his duties without any purpose or benefit of his own to be subserved thereby, and therefore a mere volunteer, and is injured by the negligence of such servant while in the act of assisting him, the company is liable to such child in damages. Whether this decision was induced by the statutes of that state does not clearly appear, but it probably was, because in addition to their statutes as to children under the age of discretion referred to in the opinion, section 3033 of their code provides as follows: “A railroad company shall be liable for any damages done to persons, stock, or other property, by the running of the locomotives, or cars, or other machinery of such company, or for damage done by any person in the employment and service of such company, unless the company shall make it appear that their agents have exercised all ordinary and reasonble care and diligence, the presumption in all cases being against the company.” The injury in that case occurred in moving a freight car.

This section is broad enough, to make a railroad company liable to mere volunteers whether adults or infants, and yet it is conceded in the opinion that a mere volunteer cannot recover. The exact ground of the decision is not clearly pointed out, and whether the courts of this state would go to the extreme limit of that case may well be doubted. But we are not required, however, in the case at bar, to go to the extent of the Georgia case, because here the boy had a right to be protected against the negligence of the servants of the company upon the principles hereinbefore stated.

As the company had employed a proper person for station agent, it had the right to rely upon him, and presume that he would perform his duty as to lighting and cleaning the lamps, and it was not bound to anticipate that the station agent would employ a boy of tender years to perform that duty for him; and, therefore, it was not bound to keep its right of way in a safer condition than would have been required in. case the station agent had attended to the lights himself. If, however, the company had knowledge that the boy was actually performing that service, and for that purpose was daily passing over and along, its track, it was bound to anticipate that an unexploded signal torpedo upon its track might be picked up and exploded by him to his injury; and the leaving of such torpedo upon the track, either wrongfully, or negligently by the servants of the company, would be such negligence as would, in case of injury to the boy by reason thereof, sustain an action against the company.

Counsel for defendant in error have cited and strongly urged the cases of Defiance Water Co. v. Olinger, 54 Ohio St., 532, and Bradford Glycerine Co. v. Manufacturing Co., 60 Ohio St., 560, but those cases are not applicable to the case at bar. The principle of those cases and Fletcher v. Rylands, 1 Exch. L. R., 265, upon which they are founded is, that if the owner of a dangerous animal or substance allows it to escape, or sends it from his own premises upon the premises of another, he is liable for all proximate damages resulting therefrom. In the Defiance-Water Co. case, water was allowed to escape, and in the Bradford Glycerine Company case, force or concussion was allowed to escape to the premises of another, and it Avas held that proper damages might be recovered. The following cases throw some light upon the rights of the parties where some substance is cast upon the premises of another: C. & H. Coal & Iron Co. v. Tucker, 48 Ohio St., 41; Collins v. Chartiers Valley Gas Co., 131 Pa. St., 143; Letts v. Kessler, 54 Ohio St., 73; Kelley v. Ohio Oil Co., 57 Ohio St., 317.

In -the case at bar nothing was sent or allowed to-escape from the premises of the railroad company, but the injury occurred upon its own premises. The-boy came to the dangerous object, instead of its escaping and going to him. The principles governing' the two conditions are very different.

As signal torpedoes are necessary in the operation of trains on railroads, the possession of them by men of the train crew cannot be regarded as negligence, and it cannot be presumed that they are negligently used, but negligence in such a case as in all others must be proved either by testimony directly establishing the fact, or by the proof of facts from which such negligence will reasonably follow and be presumed. The jury cannot be allowed to guess that there was negligence without some proof thereof, either direct or inferential.

For the errors above pointed out the judgments of the lower courts are reversed, and the cause remanded to the court of common pleas for a new trial.

Juclgments reversed.

Williams, J.,

dissenting. The purport of the instruction requested by the defendant, the refusal to give which is made a ground for reversing the judgments below, is, in its application to the facts of this case, that because the plaintiff, when he received the injury of which he complains, was on the defendant’s railway at the instance and procurement of the agent of the company, it was absolved from the duty of observing ordinary care for his protection, and liable only for wilful injury. It is to the maintenance of that proposition that the argument in the briefs for the plaintiff in error is chiefly directed. The statement of the proposition as there made is, that as the jury specially found “the evidence did not show that the boy (the plaintiff) was upon the property of the company for any purpose except the performance of his contract with the station agent, the proper person for the boy to look to for protection or indemnity would be the person (the agent)- who sent him into danger;” and that, “under these circumstances the company owed him no duty of protection except against wilful injury.”

The evidence shows that the defendant had entrusted to its station agent the duty of keeping lighted a switch some distance from the station at all proper times, the method of doing which was by placing there at night lighted lamps that were left in the agent’s custody for that purpose. These lamps were carried from the station to the switch in time to be lighted before dark, and the next day taken back to the station to be cleaned and made ready for use at the switch at night. The defendant’s agent who had the full charge of this work employed the plaintiff, a boy ten years of age, to carry the lamps both ways between the station and the switch. He had been performing that service daily for several months before receiving his injury. While so engaged he was frequently noticed on the railway by the defendant’s employes in charge of and operating trains over the road at that place; and the jury found, in response to an interrogatory submitted by the defendant, that prior to the plaintiff’s injury, the conductors, engineers, and brakemen of the defendant’s trains had opportunities to know that “the plaintiff was accustomed to pass up and down the track to attend to the switch lights.” It was while the plaintiff was upon the defendant’s railway in the performance of this work that he found the torpedo and was injured by its explosion.

Independent of the plaintiff’s right to go upon the railroad at that place, because it had, by the acquiescence of the defendant, practically become a generally traveled highway, he was in no sense a trespasser or wrong-doer. Though the contract with the defendant’s agent was not binding on the company for want of authority on his part to make it, and no contractual relation existed between the company and the plaintiff, he was, nevertheless, there in the performance of a service for the company at the express invitation of its agent in whose control that service had been, placed by the company. Even if notice to the defendant’s station agent of the presence of the boy on the-railway under those circumstances, and of his daily-custom of passing along the track while engaged in the work he was so employed to do, should not beheld sufficient to charge the company with notice of' such use, the defendant otherwise had the means of' knowing by the exercise of ordinary care, that the plaintiff in the performance of his service was required and accustomed to go from the station to the switch and back, and thus necessarily pass along the company’s track; from which it might properly be inferred that the defendant acquiesced in that use of its track. And, a person of ordinary prudence would reasonably expect that the boy would pick up-an attractive article like an unexploded torpedo left, exposed at that place, and following his childish instincts, would be likely to handle and explode it. The company should, therefore, be held to the use of ordinary care to prevent the exposure of the boy to that situation of danger. Harriman v. Railroad Co., 45 Ohio St., 11; Railway v. Shields, 47 Ohio St., 387; Powers v. Harlow, 53 Mich., 507.

Beside, it is held in the majority opinion in this case, as I understand it, that, as the plaintiff, when he was injured, was on the defendant’s road in pursuance of his engagement with the station agent, in the performance of a service for the benefit of the company, of which the agent had control, the duty of due care to protect the plaintiff against injury rested upon the company. In that opinion it is said that “as the boy in this case by his engagement with the station agent was to perform a service in lighting and cleaning the lamps beneficial to the company on the •one hand, and to himself on the other, as he was to receive and did receive pay from the agent for his ¡services, we think that he was on the railroad at the time of the injury by the sufferance of the company, not as a servant of the company, nor as a trespasser, nor as a mere volunteer, but as one performing a service in his own behalf and for his own purpose and benefit, and entitled of right to be protected against the negligence of the servants of the company.”

In either view of the case, therefore, ordinary care was the measure of the defendant’s obligation to the plaintiff, and the refusal of the court to charge as requested, that the company was liable only for wilful injury, was not error.

The doctrine of fellow-servants appears to be inapplicable to the case. The cause of action arose in April, 1896, and the action was commenced in August of that year. The negligence charged as the proximate cause of plaintiff’s injury is not that of the station agent, but is that of the defendant’s employes in charge and control of its trains, a separate and distinct department of its service; so that, under our statute they were neither fellow-servants of the station agent, nor of the plaintiff if he may be called the servant of the company at all.

The reversal of the judgments for error in the charge given by the court, is based on the proposition that, because the plaintiff, when injured, was on the defendant’s roadway under his engagement with the •station agent, he lost the right which he otherwise had as one of the public that used the railroad, with permission of the company, as a travelled highway. If, however, as held in the majority opinion, the plaintiff was rightfully on the railroad track when he was-injured, because he was there in pursuance of his engagement with the defendant’s agent, and that gave him the right to protection from the negligence of the defendant, it would seem to be unimportant that he should have that right for any other reason; for, if the company was liable for its negligence upon the ground stated, the plaintiff was entitled to recover .upon proof of such negligence, and no contributory negligence appeared, although he was not then in the use of the track as one having the right to it as a generally travelled way. In that view of the case the portion of the charge in question was unavailable as a ground of error, because immaterial. But no-reason is given, nor is any perceived, why both rights-may not coexist; nor why the exercise of one should destroy the other. Indeed, the use of the railroad track by the plaintiff when pursuing his employment, with the station agent was a use of it as a way of travel; and his right to use it as a travelled way was not impaired, nor that nature of its use changed, by the fact that the defendant’s agent requested him to-make that use of it, any more than it would be if he travelled over the track at the request of any other' person, or on an errand for his parents, or on his. way to school. The only effect of his employment by the defendant’s agent was to give him an additional ground for claiming that he was lawfully on the railway when he received his injury. -

But, if it were otherwise, and he was on the railroad only in pursuance of his employment, he was,, as has been seen, lawfully there; and, on that ground entitled to recover in his action, if, without fault on his part, his injury was caused, as he claimed, through the negligence of the company in the use of the torpedo; and hence, it became not only proper, but necessary, that the jury should be instructed as to what would constitute negligence in the use of such dangerous instruments by a railroad company where children should be expected to go. The instruction which the court gave on that subject is part of the charge for which the judgments below have been reversed, and is as follows: “It is negligence for the servants of such railroad company, wantonly and needlessly, and without notice, warning or other precaution, to place and leave exposed to observation, at such point, or place on its railroad, where the public, including children, are and have been so permitted by the company to travel and pass, an apparently harmless, but in fact highly explosive and dangerous object, like a signal torpedo, easily picked up and handled by children and likely to attract them, and known to such servants to be such.” This portion of the charge is taken from the syllabus in the Harriman case, supra. Its soundness as a proposition of law is not disputed. Its principle has been accepted and approved in many cases, not only in this state, but in. other states generally. Its applicability to this case, in either view that has been taken of it, seems evident. Beyond that instruction and the statement cf the plaintiff’s claim, there is nothing more in the charge complained of, except that the burden was on the plaintiff to show “that the railroad company permitted its tracks and right of way to be used by the public and by children in the manner that I have already stated to you, and that while he was there upon that track or passing along the same under the circumstances stated in his petition, that he was injured by the explosion of this torpedo, and that the torpedo was placed there and left unexploded by the defendant, its servants or agents.”

Certainly it was not improper for the court to ■charge the jury that the burden was on the plaintiff to show that he was injured by the explosion of the torpedo, and that it was placed on the track where found, and left unexploded, by the defendant, its servants, or agents, as alleged in the petition. That burden was indisputably upon the plaintiff. The objection can only relate to that part of the charge which placed on the plaintiff the burden of proving “that the railroad company permitted its tracks and right of way to be used by the public, and by ■children,” as a public travelled way; and the ground ■of the objection stated is, that it was not applicable to the case because the plaintiff, when injured, was not using the track in that way, but was using it in pursuance of his engagement with the station agent.

If the plaintiff had the right to claim that he was lawfully upon the railroad when he was injured because it had become a public travelled highway at that place by the defendant’s permission, then it is conceded this charge would be correct, pertinent and material. And, if his right to be on the track is restricted to the ground that he was there in the performance of his engagement with the defendant’s agent, under the rule declared in the majority opinion, the proof required by this instruction was wholly unnecessary to his recovery. It simply imposed upon him a burden that was not incumbent on him, and in this respect might be harmful to him; but the imposition of such unnecessary burden on him could in no way be harmful to the defendant. On the contrary, it gave the defendant an additional chance of •escaping liability at the hands of the j.ury, if the plaintiff failed to make the proof required by the instruction, a chance to which the defendant was not entitled. Instead, therefore, of this instruction being prejudicial to the defendant, it might have proven beneficial. In any aspect of the case the charge given affords no ground for a reversal of the judgment.

The testimony held to be incompetent relates to a transaction and conversation between a person of whom the witness speaks as a “trainman” and the agent in charge of the defendant’s railroad station, by which the former obtained from the latter in the station, a signal torpedo. These instruments are kept by the agents at railroad stations for the use of trainmen for giving signals in the operation of trains. The testimony is held incompetent because the witness did not first qualify himself to speak of the person referred to as a “trainman.” The occurrence to Avhich the testimony relates took place at the station near which the plaintiff was injured, and at a time Avhen a freight train had recently arrived. That station is situated in a small village.where few persons went, and the agent appears to have attended to all business at the station, even to the lamps at the switch some distance away. No other employes were required. These facts were before the court and jury when the witness testified. The identification of a trainman is not the subject of expert testimony. The identity of a conductor or engineer passing from a train just arrived into the station, is as obvious to common observation, as that of a policeman on his beat in a city. And it would seem as unnecessary to the competency of testimony of the acts of the former for whose use signal torpedoes are kept, in obtain- ' ing such instruments of the agent at the station where they are kept for that purpose, that the witness should first testify lie knew the person to be a conductor or engineer, as it was that he should first testify he knew the person in charge of the station to be the station agent, or would be that he knew a policeman when he saw one, before he could testify that he saw a policeman make an arrest. If there was any doubt of the accuracy of the witness’ knowledge on the subject he was open to cross examination, and the weight of his testimony in that respect, as well as in all others, was for the jury.

For these reasons I am unable to concur in the majority opinion, or in the judgment.

Minshall, J., concurs in the dissenting opinion.  