
    The L. E. & W. Railroad Co. v. Mackey.
    
      Depositions attached to bill not marked as exhibit — Reviewing court may refuse to treat such as part of bill — Action against railway for personal injury — Contributory negligence — Degree of care expected from child, question jor jury — Section 6980, Rev. Stat.
    
    1. It is not error for a reviewing court to refuse to treat as part of a bill of exceptions a deposition claimed to be the identical deposition given in evidence at the trial, where such deposition is attached to the bill only by being placed between the pasteboard back and the stenographer’s report (although held with sufficient tenacity-to retain its place), and not marked as an exhibit, nor identified by either the trial judge, nor the stenographer, nor by any one.
    2. Where a petition in an action against a railroad company for personal injuries charges that defendant negligently and unlawfully stopped a freight train across a public highway for a period of more than five minutes, and that while plaintiff, after the expiration of that period, was attempting to cross the street between the cars, defendant without warning, wrongfully and negligently backed the train, causing plaintiff’s injuries, such two charges of negligence are not separable in the sense that one only would be the proximate cause • of the injury; taken together they constitute a sufficient allegation of negligence as against a general demurrer.
    3. A child of nine years of age is not guilty of negligence if he exercises that degree of care which under like circumstances would reasonably be expected from one of his years and intelligence. Whether he used such care in a particular case is a question for the jury. And even though the petition might, if the plaintiff were an adult, be construed as disclosing contributory negligence; an averment that the plaintiff was at the time a child of nine years of age, and of immature experience and judgment, is sufficient to rebut the presumption of contributory negligence.
    4. Where, in such case, the evidence at the trial tends to show that a freight train has been permitted to stand across a pub- ' lie street beyond the period of 'five minutes, to the hindrance or inconvenience of travel thereon, in violation of section 6980, Revised Statutes, and persons, rightfully on the street are passing between the cars of the train, it becomes a question for the jury whether or not it is negligence for the company’s servants to move the train without giving timely warning of their intention to do so.
    
      5. Whether, under such circumstances, a child of nine years who attempts to cross and in doing so climbs upon the coupling of a car, is a trespasser or not, is a question for the jury.
    6. It is also a question for the jury whether or not the mere presence of the train is to be taken as notice to such child that the train is likely to be moved at any time.
    (Decided October 29, 1895.)
    Error to the Circuit Court of Mercer county.
    The action below was by the defendant in error, by next friend, against the plaintiff in error to recover damages for alleged negligence. A judgment was obtained in the common pleas which was affirmed by the circuit court. To reverse these judgments the present proceeding is prosecuted.
    
      Marsh da Loree, W. E. Eackenclorn and John B. Cockrum, for plaintiff in error.
    The train was not approaching the crossing in any sense and it is maintained that the law (section 3336, Revised Statutes of Ohio) requires the engineer in charge of an engine in motion and approaching- a turnpike, hig’hway or town crossing upon the same level therewith to sound a whistle at a distance of at least eighty and not farther than one hundred rods from the place of such crossing; and ring a bell continuously until the engine passes such road crossing-. So that as the train was not approaching- a crossing the engineer- on starting the train from its position of rest, on the crossing was not required to sound a whistle or ring a bell, was not required to give signal, or any particular notice of his intention to start his train either forward or backward. If then the engineer was not required to give warning by bell or whistle what act of omission or commission on the part of the servants of the company were committed resulting in injury to the defendant in error ? Faurot 
      
      v. Neff, 32 Ohio St., 44; Peterson v. Roach, 32 Ohio St, 374.
    Negligence cannot be alleged without setting forth the acts and omission of the defendant upon which the right of recovery is based, and then showing by appropriate averments that they occurred through the negligence of the defendant. Kinkead’s Code Pleading, volume II, 885.
    There is no averment of any omitted duty of plaintiff in error. The petition must show a legal duty or obligation imposed on the defendant towards the person injured, existing at the time and place of the injury, which the defendant failed to perform, by reason of which the injury was occasioned. Thicle v. McManns, 3 Ind. App., 132; Railroad Co. v. Griffin, 100 Ind., 221; Sweeney v. Railway Co., 10 Allen, 368; Blacks P. & P., section 138.
    It has been held that it is not sufficient to allege that a duty existed and that the defendant violated it, but all the facts showing the duty should be stated. Anges v. Lee, 40 Ill., App., 304; Clark v. Dyer, 81 Tex., 339; Davis v. Guarnieri, 45 Ohio St., 470.
    There was no imposed duty to send their employes to Main street crossing to relieve persons from any perilous position that their curiosity or rashness had Jed them to, before such employes could start their freight train upon its mission for the public. Morrissey v. Railroad Co.,. 126 Mass., 380; Gay v. Electric St. Railway Co., 159 Mass., 238; McGinnis v. Butler, 159 Mass., 233; Railway Co. et al. v. Bingham, Admx., 29 Ohio St., 364.
    Had Joseph Mackey been an adult there certainly would be no question but the act of crossing a train occupying a street crossing by climbing upon and over the coupling of two freight cars, would be an act of rashness, as if injured in the attempt to cross would bar a recovery. Corcoran v. Railway Co., 105 Mo., 399; Howard v. Railroad Co., 41 Kan., 405; Railroad Co. v. Plackett, 47 Kan., 112.
    Joseph Mackey being nine years of age was not a person non sui juris. We maintain therefore that his petition must be as free from disclosing contributory negligence as in case of an adult. Railroad Co. v. Barber, 5 Ohio St., 541; Street Railroad Co. v. Nolthenius, 40 Ohio St., 376; Robinson v. Gary, 28 Ohio St., 241; Railroad Co. v. Whitacre, 35 Ohio St., 627; Voss v. Young, 10 W. L. B., 292; Street Ry. Co. v. Fullbright, 7 W. L. B., 187; Hays v. Gallagher, 72 Pa. St., 140; Hoth v. Peters 55 Wis., 405 ; Engel v. Smith, 82 Mich., 1; Mathews v. Cedar Rapids, 80 Iowa, 459 ; Guess v. Railroad Co., 30 S. C; Oil City, etc., v. Boundy, 122 Pa. St., 449.
    We maintain that the capacity of Joseph Mackey was not the subject of expert evidence.
    The ordinary affairs of life cannot be the subject of expert testimony. Matters concerning which the jury can form an opinion as intelligently as can the witness, are inadmissible. Davis v. State, 78 Ind., 15; Knoll v. State, 55 Wis., 249; Pennsylvania Co. v. Conlan, 101 Ill., 93; Passmore’s Appeal, 27 N. W. R., 601; Hallahan v. Railroad Co,. 102 N.Y., 194; Neilson v. Railroad Co., 59 Wis., 516; Watson v. Railroad Co., 57 Wis., 332; 2 Ohio St., 452.
    The exact question that a railroad is liable to trespassers upon its premises only for wanton or wilful acts of negligence, and that the rule applies to a child of tender years as to an adult, we believe never has been decided by Supreme Court of Ohio, but it appears to be well settled as the law by text writers and by the courts of other states. Morrissey v. Railroad Co., 126 Mass., 380; Patterson Railway Accident Law; 4th Am. Eng. Railroad Cases, 572; Frost v. Railroad Co., 64 N. H., 220.
    The owner is under no duty to a mere trespasser to keep his premises safe, and the fact that the tresspasser is an infant cannot have the effect to raise a duty where none otherwise exists. Nolen v. Railroad Co., 53 Conn., 416; Gay v. Electric Street Railway Co., 159 Mass., 238.
    If a child trespass on the premises of the defendant, and is injured-by something which he does while trespassing, he cannot' recover unless the injury was wantonly inflicted by or was due to the reckless, careless conduct of the defendant. McGuiness v. Butler, 159 Mass., 233; Daniels v. Railroad Co., 154 Mass., 349; McEuchern v. Railroad Co., 150 Mass., 515; McAlpin v. Powel, 70 N. Y., 126; Lake Shore Railway Co. v. Bodemer 139 Ill., 596; Railroad Co. v. Norway, 7 O. C. C. Rep., 449.
    It may be urged that this is not the law of Ohio and that there are decisions against this doctrine, but the decisions that would appear to be against the doctrine here maintained, are found in a peculiar class of cases; which will be found upon examination not similar. Harriman v. Railway Co., 45 Ohio St., 11, known as the torpedo ease; Lynch v. Nurdin, 1 Q., B. 29.
    The rule .in Ohio, declaring what is necessary to make a paper or documenta part of a bill of exceptions, is very clearly stated, in the following cases:
    
      Hicks v. Persons, 19 Ohio, 426; Wells v. Martin, 1 Ohio St., 387; Busby v. Finn, 1 Ohio St., 410.
    
      
      Robert L. Mattvngly, Patrick E. Kenney and Edgar B. Kinkeacl, for defendant in error.
    A petition against a railroad company for personal injury that charges such company with negligently and unlawfully stopping a train of freight cars across the most public and most frequented street crossing of a village and holding the crossing for an unlawful period of time; and that while the plaintiff, a child of nine years of age, without the capacity to appreciate the danger, was attempting to cross such street between the cars and in plain view of the engineer and any other servants in charge of the train, the servants of such company, negligently and without any warning or attention to the crossing suddenly moved such train backward and thus injured the child, states a good cause of action, and the two alleged causes of unlawfully leaving the train on the crossing and moving the same without warning, are not independent of each other or separable, in the sense that one only would be the proximate cause, of such injury. Rauch v. Lloyd, 31 Pa. St., 358; Railroad Co. v. Stout, 17 Wall., 657; Burger v. Mo. Pac. Ry. Co., 112 Mo., 238; Henderson v. Railway Co., 55 N. W. Rep., 53; Schmitz v. Railway Co., 24 S. W. Rep., 472; Angus v. Lee, 40 Ill. App., 304; Harper v. Railroad Co., 36 Fed. Rep., 102; Davis v. Guernieri, 45 Ohio St., 470.
    Where a railroad company by leaving its train on a street crossing has negligently and unlawfully taken the exclusive possession thereof and unlawfully holds the same as against persons who are congregated at the crossing to pass such point, and some are crossing over the cars in view of the engineer and other servants in charge of the train, it is a question for the jury whether or not the company may suddenly move such train without first giving some warning to apprise persons who may be in positions of danger induced by such obstruction of the highway. Barkley v. Railway Co., 96 Mo., 378; Railway Co. v. Layer, 112 Pa. St., 414; Eaton v. Fitchburg Railway Co., 129 Mass., 364.
    The degree of care required to be exercised by a child of tender years, and the omission of which will constitute negligence on his part, is to' be measured in such case by the maturity and capacity of the individual. And whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from the facts, the question is properly left to the jury. Rolling Mill Co. v. Corrigan, 46 Ohio. St., 283; Railroad Co. v. Snyder, 18 Ohio St., 400; Clark v. Chambers, 3 Q. B. Div., .327; Railroad Co. v. Gladman, 15 Wall., 401; Railroad Co. v. Kelley, 7 Pa. St., 2; 47 Pa. St., 300; 57 Pa. St., 172; Thurber v. Railroad Co., 60 N. Y., 326; Nat. Bank v. City Bank, 103 U. S., 568; Railroad Co. v. Picksley, 24 Ohio St., 654.
    Where a statute declares the obstruction of a street crossing by railroad cars or trains for more than a determinate period unlawful and requires the same to be opened after that period; and declares any obstruction of a street or crossing a, nuisance, it is within the design of such statute to require the railroad company to observe certain rules of care and precaution to provide against injuries to the public or any member thereof. Hayes v. Railway Co. 111 U. S., 239; Taylor v. Railroad Co., 45 Mich., 74; Barnes v. Ward, 9 C. B., 392; State v. Morris R. Co., 25 N. J. L., 437; C. I. R. Co. v. Stead, 95 U. S., 161; Beiseigul v. N. Y. C. R. Co., 40 N. Y., 9; Black v. B. C. R. Co., 38 Iowa, 515; Robinson v. Railroad Co., 48 Cal., 409.
    
      To make a paper a part of the bill of exceptions, it must be incorporated in it, attached to it, or filed with it and so described as to leave no doubt of its identity. Revised Statutes, section 5334; Kerr et al. v. Burns, 12 W. L. B., 68; Hicks v. Persons, 19 Ohio, 426; Wells v. Martin, 1 Ohio St., 387; Bushy v. Finn, 1 Ohio St., 410.
    There are four general classes of persons to regard in an action for injury, (1) Adults, who are in law and fact sui juris and must be free from contributory negligence; (2) infants under seven years of age who are presumed non sioi juris and incapable of contributory negligence; (3) children between seven and fourteen who are not presumed either sioi juris, or non sui jioris, but are primeo fcocie incapable of contributory negligence, the question being one of fact; and (4) infants between fourteen and twenty-one years who are presumed sui jioris and capable of contributory negligence, but such capacity may go to the jury. Rolling Mill Co. v. Corrigan, 46 Ohio St., 283; Schmidt v. Railway Co., 23 Wis., 186; McGreary v. Railroad Co., 235 Mass., 363.
    A general 'allegation of negligence is unlike an allegation of fraud. Railroad Co. v. Wolfe, 80 Ky., 84; Nolton v. Railroad Co., 15 N. Y., 444; Railroad Co. v. Phillips, 66 Ill., 551; Railroad Co. v. O’Neil, 49 Kan., 367.
    The allegation of the age of child taken with the allegation of want of capacity to appreciate the act committed, brings the case squarely within the rule announced in Lynch v Hurdin, 1 Q. B. 29; 41, E., C. L. 422; Railroad Co. v. Snyder, 18 Ohio St., 400; Harriman v. Railroad Co., 45 Ohio St., 11; Patterson’s Ry. Accident Law, sections 71, 72, 73, and authorities cited.
    
      In this case where there was no duty owing- to the railroad company by the child except to exercise ordinary care of a child it is necessary to negative contributory negligence. The matter of contributory negligence being one of defense to be made out by the defendant. Street Ry. Co. v. Nolthenius, 40 Ohio St., 375; Robinson v. Gary, 28 Ohio St., 241; Voss v. Young, 10 W. L. B., 292.
    At common law children under seven years of age are conclusively presumed to be without discretion and incapable of committing crime. And between seven and fourteen years of age they are prima facie incapable of exercising judgment and discretion, but evidence is received to rebut the presumption of incapacity. 1 Bishop Orim. Law, section 368; 1 Wharton Crim. Law, 58. The question of capacity is for the jury and not one of law to be determined by the court. 1 Thompson, Negligence, 452; Byrne v. Railroad Co., 83 N. Y., 620; Dowling v. Railroad Co., 90 N. Y., 671: O'Mara v. Railroad Co., 38 N. Y., 445; Mowrey v. Railway Co., 51 N. Y., 666; 60 N. Y., 336; 26 N. Y., 591.
    The trespass and unlawful act began with the unlawful stopping of the train and only ended with clearing the crossing. Murray v. Railroad Co., 70 Am. Dec., 219; Railroad Co., 112 Mo., 238; Henderson v. Railway Co., 55 N. W. Rep., 53; Schrintz v. Railway Co., 24 S. W. Rep., 472; 37 N. E. Rep., 406.
    A child is not guilty of contributory negligence if he exercises that degree of care which, under the same or similar circumstances, would be reasonably expected from one of his age and capacity, and where the petition charging the negligence is sufficient and the evidence proves its allegations, the question is properly left to the jury. Railroad Co. v. Spearen, 47 Pa. St., 300; 105 Mo., 399; 101 Mo., 12; 103 U. S., 668.
    The proximate cause of the injury of Joseph Mackey was .the entire mismanagement and negligent conduct of the servants of the defendant in the obstruction of the street crossing and sudden movement of the train without any warning. To split such a single, simple, individual cause into two causes and to christen them proximo, and remota, is to embarass ourselves unnecessarily and to obstruct the course of justice. Nagee v. Railroad Co., 75 Mo., 653; Railroad Co. v. Reaney, 42 Md., 117.
    The blocking of street crossings in the state of Ohio for more than five minutes, when it is unnecessary, is an offense and prohibited by statute, sections 4748, 6980a; and is a nuisance, section 6921, Railroad Co. v. Morey, 47 Ohio St., 215; and is against the policy of the ■ state. Railroad Co. v. Maurer, 21 Ohio St., 421.
   Spear, J.

1. A preliminary question is made, with respect to the action of the circuit court in overruling a motion to reattach certain depositions to the bill of exceptions. It is recited in the bill that depositions of the witnesses named were given in evidence, and that they are attached, marked respectively Exhibits “E” and£ £F. ’ ’ Proof was heard for and against the claim that the depositions were ever part of the bill. Giving to the testimony a construction most favorable to the plaintiff in error the question, reduced to its last analysis, is whether a paper claimed to be the identical paper given in evidence at the trial, which was attached to the bill of exceptions only by being placed between the pasteboard back and the stenographer’s report, in which position it was held with sufficient tenacity to retain its place, but which paper was not marked nor identified as an exhibit, either by the trial judge or the stenographer, or by any one, can be treated as a part of the bill. We think it cannot. The circuit court did not err in overruling the motion, nor in refusing to pass upon the weight of the evidence Hicks v. Persons, 19 Ohio, 426; Wells v. Martin, 1 Ohio St., 386; Busby v. Finn, Id., 409.

2. It is insisted that the petition fails to state a cause of action, and that the trial court therefore erred in overruling a general demurrer to that pleading. The criticisms are that there is no averment that the train was unnecessarily detained on the crossing; that the allegations of negligence are mere epithets, and not a statement of the omission of any duty, and that the presumption of contributory negligence arising from the facts stated is not overcome by proper averments.

Omitting formal parts, the petition alleges in substance that the plaintiff was a minor of the age of nine years; that defendant’s track through the village of Coldwater intersects and crosses Main street at grade; that Main street is a common thoroughfare and highway, tlie principal street of said village, and the point of junction bothapublic highway and street crossing, necessarily much used and frequented by the public. On June 5, 1890, the defendant did negligentlyandunlawfully, and without due care on the part of the servants of said defendant in charge thereof, leave a long train of freight cars attached to a locomotive, standing upon and over, obstructing and blocking said crossing for a period of more than five minutes, without any attention to said crossing or the consequence to the convenience or life and limb of persons having occasion to pass such obstruction. That at the time aforesaid, during the hour of noon of said day, while said train was so unlawfully standing on said crossing, the plaintiff, a child of tender years and immature experience and judgment, was lawfully passing along said street going to a point beyond said crossing on Main street. When, arriving at said crossing and in full view of the engineer’s position, and in full view of any servant being on the lookout or keeping watch over said train, he found said crossing so obstructed and blocked by said defendant’s train; that after remaining at, said crossing for more than five minutes, and receiving no warning, plaintiff, in full view of the engineer’s proper position, and within the knowledge of ordinary prudence of defendant’s servants, attempted to pass over and cross such obstruction. While so passing over said cars defendant’s servants, without any care or attention to said crossing, or the consequence to any one attempting to pass such unlawful obstruction, without due care, without signal, without notice, without warning, did then and there imprudently, carelessly, negligently and wrongfully start said ears suddenly and violently backward, whereby said plaintiff’s right foot was caught between the couplings of two ears, and the injury followed.

If the action were to recover the penalty prescribed by section 4748, Revised Statutes, or to recover damages arising to any person by reason alone of the obstruction, it would be necessary to aver that the obstruction was continued unnecessarily, for that condition is incorporated in the statute. But section 6890, Revised Statutes, which provides that “any person who permits any car or locomotive of which he has charge to remain upon or within thirty feet of the center or across any public road, street, or alley, for a period longer than five minutes * * * shall be fined, ” etc., does not impose the requirement of showing that the cars were so permitted to remain unnecessarily, and the language quoted clearly implies the duty to remove the obstruction after the lapse of five minutes. Notice of this statute being taken, the neglect of duty is implied from the statement of the fact of continued obstruction. So construed, the petition makes a case of violation of duty, and this, with the averment that the act was negligently done and the further allegation that the starting of the ears, by which the injury was immediately caused, was done negligently, without warning and wrongfully, we think is sufficient charge of negligence as against a general demurrer. The general rule is that allegations which adequately state the facts of negligence are sufficient to constitute a good pleading. An allegation specifying the act, the doing of which caused thq injury, and averring generally that it was negligently done, states a cause of action, although it be not apparent from the complaint how the injury resulted from the negligence alleged.” Boone’s Code Pleading, section 174; Bliss’ Code Pleading, section 211a/ Maxwells’s Code Pleading, 251) Gulf, etc., Railroad v. Washington, 49 Fed. Rep., 347; Rushville v. Adams, 107 Ind., 475. Nor are the two negligent acts independent of each other. Both concur in constituting an act of negligence, viz.: the negligent starting of a train, negligently and unlawfully obstructing a street crossing. Burger v. Railway, 112 Mo., 238.

Nor is the petition faulty in that it does not sufficiently negative the presumption of contributory negligence. It is well settled that a child is presumed to possess only such discretion as is common to children, and is, therefore, held only to the exercise of such care as is reasonably to be expected from children of his own age and capacity. Rolling Mill Co. v. Corrigan, 46 Ohio St., 283. The law as to personal responsibility of a child for his acts is declared by Bishop, in his work upon Criminal Law, section 368, in these words: “Since, in reason criminal capability depends on the understanding rather than the age, there can be no fixed rule of ■ age which will operate justly in .every possible case. But an imperfect rule is practically better than none. Therefore, at the common law, a child under seven years is conclusively presumed incapable of crime. Between seven and fourteen the law also deems the child incapable, but only prima facie so, and evidence may be received to show criminal capacity.” The rule is sustained by many authorities, and may be regarded as an accepted rule of criminal law; and it would seem that the principle should have application to a case of negligence. Prof. Thompson, in his work on Negligence, at page 1181, comments as follows: “Two questions arise: 1. At what age or period of a child’s development shall it be held to be sui juris for the purpose of cases of this kind; 2. Whether this is a question of law or a question of fact. When the age of the child admits of no doubt as to its capacity to avoid danger, the court will decide this question as a matter of law. * * If there is any doubt as to the child being of the age and capacity that in law constitutes one sui juris, it should be submitted to the jury to say by their verdict whether he is so or not. ” The rule is tersely stated by Mr. Justice Hunt, in Railroad Co. v. Gladmon, 15 Wallace, at page 408, thus: “The caution required is according to the maturity and capacity of the child, and this is to be determined in each case by the circumstances of that case.”

Unless, therefore, it can be held as matter of law, that the injured person had the capacity to foresee and avoid danger, negligence will not be imputed to him. And inasmuch as this presumption will not be visited upon children under the age of fourteen, it follows that the averment that the plaintiff was a boy of nine years of age, and that he was of immature experience and judgment, is sufficient to rebut any legal presumption of contributory neglig-ence from other facts appearing in the petition. Sharswood’s Blackstone, Vol. 1, 435, 464; Vol. 4, 20; Rauch v. Lloyd & Hill, 31 Pa. St., 358; Nagle v. Railroad, 88 Pa. St., 35, 39; Rhodes v. Railroad, 84 Ga., 320; Thurber v. Railroad, 60 N. Y., 326; Dowling v. Railroad, 90 N. Y., 670.

3. Defendant’s counsel asked the court to charge the jury that “If you find in this case from the evidence, that defendant’s train of cars occupied Main street crossing in Coldwater, Ohio, for a period exceeding five minutes, and more, than the statutory period, and you further find that plaintiff, while said train so occupied said crossing, climbed up between two of defendant’s cars in said train, he, by so doing became and was a trespasser, and while so trespassing the defendant owed him no duty in moving the train from such crossing, unless you find from the evidence, that defendant .and its servants operating the train knew of his presence there,” which was refused.

This request implies that, under the circumstances stated, the plaintiff would, as matter of law, be a trespasser if he climbed up between two of the cars while attempting to cross over. We think this a question of mixed fact and law. The evidence tended to show that at the time the attempt to cross over was made the crossing had been obstructed for more than five minutes to the hindrance of travel thereon, which act of continued obstruction, if proven, was a violation of law and made the company itself a trespasser. Its cars were where they had no right to be, while, if the boy was rightfully upon the crossing, as the evidence tended to show he was, he was where he had a right to be, and his attempt to pass the obstruction by climbing upon the ears would not make him a trespasser. It was, we think, for the jury to say whether he was a trespasser or not.

Defendant’s counsel also requested the court to charge “That if a public highway is completely blocked by a united freight train, attached to an engine, such possession of the highway by the train, even though such possession extends beyond the statutory time, is notice to all traveling public, children and adults alike, of the presence of such train at such place, and that it is likely to be moved at any time, and such train in that condition is not an invitation to any of the traveling public to pass over' the crossing by climbing upon, or over such train,” which was refused.

One objection to this request is that it ignores the difference between the responsibility of adults and children already adverted to. Whether or not the presence of a train upon a crossing should be treated as notice to a child of nine years of age that it is likely to be moved at any time depends upon the degree of intelligence and judgment possessed by the child, and that, as we have already found, is a question of fact for the jury. Besides this, it might he argued that the train would naturally furnish temptation to such a child, when desiring to pass, to take great risk in doing so, and that trainmen, as reasonable men, ought to anticipate that children would exercise only the discretion usual among’ children, and, if circumstances indicated their presence at the crossing, to take reasonable precautions for their safety.

The charge as a whole was excepted to. We think it correctly presents the law, and is as favorable to the defendant below as its counsel could well ask.

Other questions were argued. They have all been considered, but we do not find anything in the record which would warrant a reversal of the judgment. Judgment affirmed.  