
    Morey, by guardian ad litem, Appellant, vs. Lake Superior Terminal & Transfer Railway Company, Respondent.
    
      February 26
    
    May 29, 1903.
    
    
      Appeal and, error: Divided court: Affirmance or reversal.
    
    Where the supreme court is equally divided, the judgment of the trial court is affirmed.
    Appeal from an order of the superior court of Douglas county: Charles Smith, Judge.
    
      Affirmed.
    
    The appeal is from an order sustaining a demurrer to the complaint, in an action to recover compensation for personal injuries. The circumstances of the injury upon which liability is claimed are that on the occasion in question defendant was operating its train at a speed of twenty miles per hour, whereas the legal limit of speed was fifteen miles per hour, without giving signals of the approach to the street crossing where the injury occurred as the law requires; that 
      Ray Rockwell Morey, tlie person injured, a boy of about twelve years of age, while traveling south upon such street, where it was crossed by defendant’s tracks, intending to proceed to his home on the opposite side thereof, when about thirty-nine feet from the particular track on which he was injured, such point, on account of obstructions to a view to the west, being the first place where he could see a train approaching from that direction if one was in view and in dangerous proximity to his pathway, he looked in such direction, having a clear view of the track to the west for a distance of about half a block from his place of crossing; that there was no train in sight; that he then looked east, keeping on his course till he reached a point about three and one-half feet from the place of injury, when he again looked west and saw a train about thirty-five feet away, coming at such a furious rate of speed as to cause him to be overcome with a sense of fear and to lose his presence of mind and self-control, and to thereby fall toward the track, whereby his left foot was unavoidably placed over the north rail thereof, where it was immediately struck by the train and severed from his leg. Defendant demurred to the complaint for insufficiency. The demurrer was sustained.
    
      Victor Linley, for the appellant.
    For the respondent there was a brief by J. A. Murphy and Heber McHugh, and oral argument by Mr. McHugh.
    
   The following opinion was filed March 21, 1903:

Marshall, J.

In this case the members of the court taking part in considering the questions involved being equally divided in respect thereto, .the order appealed from must be affirmed ex necessitate. The Chief Justice and the writer concur in views harmonizing with the decision of the lower court, while Justices Winslow and Dodge are of a different opinion. In view of that situation it is deemed best not to file an opinion upon the principles of law applicable to the cause.

By the Court: — The order appealed from is affirmed.

A motion for a rehearing was denied May 29, 1903,

Siebecker, J., taking no part.  