Mr. Justice Morris
delivered the opinion of the Court:
1. That the defendant’s request for a peremptory instruction to the jury to find a verdict for the defendant, was properly refused, is a proposition that requires no great consideration from us. Clearly there was testimony that should go to a jury both upon the question of the defendant’s negligence and upon that of the plaintiff’s contributory negligence. To go no farther, on the one side, than the alleged violation of the municipal ordinances that have been cited by the defendant, a question of fact for the jury was there plainly presented. It was a question of fact for the jury whether, with reference to the first of those ordinances, the grade of the railroad was approximately even with the adjacent surface, so as to preclude the necessity of enclosing the tracks by a fence. It is argued that, because there was a curb outside of the tracks about eight inches above the surface of the roadway of the street, and because the tracks about the place of the accident were about eighteen inches above the adjacent curb, the tracks were not approximately even with the adjacent surface, and no fence was required. And it is argued, also, that on the south side of the track a fence was impracticable on account of the divergence of the [605]*605Richmond and Danville track or switch. But it is evident that the alleged elevation of the tracks above the adjacent surface was no barrier against temptation to cross the tracks, which was the very thing against which the ordinance sought to guard; for the plaintiff had been in the habit of crossing there for a year before the accident, apparently with the knowledge of the officers of the railroad company in charge at the place, and certainly without protest or objection by them, so far as the record discloses. And the record discloses the fact that subsequently to the occurrence of the accident, the defendant constructed a fence on the north side of the track, such as was required by the ordinance, and which presents an effectual barrier against crossing the tracks. Certainly, it was more favorable to the defendant to let the question go to the jury to determine whether this disregard of the ordinance was in fact a violation of it, than for the court to decide, as a question of law, that there had not been compliance by the defendant with the ordinance. And the same observation is proper in regard to the other ordinance and the matter of a signal light on the advancing end of the engine or tender. But it is due to the appellant to say that no great reliance is placed upon this point, either in the brief or in the argument. Greater reliance is placed upon the questions raised by the other assignments of error, in connection with which the contributory negligence, with which it is sought to charge the plaintiff, may be considered.
2. The next assignment of error to be considered is that the trial court refused to hold, as matter of law, that the plaintiff was bound to exercise the same degree of care and prudence that an adult would have been bound to exercise under like circumstances.
It is not perhaps entirely correct to say, as is here implied, by the appellant, that there was any such refusal by the court below as intimated. The court was not requested by the defendant to make any such ruling; and, of course, it [606]*606could not refuse what it was not requested to do. But it did, on behalf of the plaintiff, and in the second instruction requested by the plaintiff, lay down the converse of the rule. That instruction is in the following words:
“In considering the question whether the plaintiff was guilty of contributory negligence, the jury are instructed that the rule of the law in regard to the negligence of an adult and the rule in regard to that of an infant of tender years are quite different. By the adult there must be given that care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly and can not be visited on another. Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. Of a child of three years of age less caution would be required than of one of seven, and of a child of seven less than one of twelve or fifteen. The caution required is according to the maturity and capacity of the child. That is to be determined in this case by the circumstances of this particular case.”
And to this instruction as requested by the plaintiff and as given by the court with some explanations, which do not in any manner materially alter it, the defendant excepted; and such exception may be regarded as a sufficient basis for the assignment of error now made.
In support of the contention in this regard, the appellant cites numerous cases in which, as it claims, children, varying in age from five to thirteen years, have been held, as matter of law, guilty of contributory negligence. But it is unnecessary for us to consider those cases. One or two of them may support the appellant’s proposition; and that there may be cases where, upon the clear and uneontrafiicted evidence, even an infant of tender years may be held, as matter of law, to the result of his own acts as negligence or contributory negligence, may be conceded, as was conceded in the case of McMahon v. Northern Central Railway [607]*607Co., 39 Md. 438, 449. But that is not the proposition here advanced by the appellant. The proposition here is, that for the purpose of determining whether a plaintiff, a child of the age of about twelve years, is liable to the charge of contributory negligence, he is to be held precisely to the same degree of care and prudence that an adult would have been bound to exercise under the circumstances. In answer to the proposition it seems to us to be sufficient to say that it is directly in the face of the decision of the Supreme Court of the United States in the case of Railroad Co. v. Gladmon, 15 Wall. 401, from the opinion in which the plaintiff’s instruction excepted to has been taken verbatim. The rule laid down in that case was reiterated by the same court in the case of Railroad Co. v. Stout, 17 Wall. 660; and we are not advised that it has ever been modified in any respect. That rule we have been called upon to apply in several cases in this court. Railroad Co. v. Falvey, 5 App. D. C. 176; Railroad Co. v. Webster, 6 App. D. C. 182; Reiners v. W. & G. RR. Co., 9 App. D. C. 19. And we must regard it as decisive of the question now raised. As we have intimated, the question raised under this assignment of error is not whether, under all the circumstances of this case, the plaintiff, as matter of law, should be adjudged to have been guilty of contributory negligence; but whether, under circumstances to be submitted to a jury for determination of the issue of contributory negligence, the jury should be instructed that there was no difference between an adult and a child of tender years with regard to such issue. It would be error so to hold; and there was no error in holding the reverse.
3. The appellant’s third assignment of error is founded 'upon the allowance by the trial court of the first instruction requested by the plaintiff to be given to the j ury. That instruction is in the following words:
“The jury are instructed that if they find that the injuries received by the plaintiff on the evening of the 10th of [608]
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Mr. Justice Morris
delivered the opinion of the Court:
1. That the defendant’s request for a peremptory instruction to the jury to find a verdict for the defendant, was properly refused, is a proposition that requires no great consideration from us. Clearly there was testimony that should go to a jury both upon the question of the defendant’s negligence and upon that of the plaintiff’s contributory negligence. To go no farther, on the one side, than the alleged violation of the municipal ordinances that have been cited by the defendant, a question of fact for the jury was there plainly presented. It was a question of fact for the jury whether, with reference to the first of those ordinances, the grade of the railroad was approximately even with the adjacent surface, so as to preclude the necessity of enclosing the tracks by a fence. It is argued that, because there was a curb outside of the tracks about eight inches above the surface of the roadway of the street, and because the tracks about the place of the accident were about eighteen inches above the adjacent curb, the tracks were not approximately even with the adjacent surface, and no fence was required. And it is argued, also, that on the south side of the track a fence was impracticable on account of the divergence of the [605]*605Richmond and Danville track or switch. But it is evident that the alleged elevation of the tracks above the adjacent surface was no barrier against temptation to cross the tracks, which was the very thing against which the ordinance sought to guard; for the plaintiff had been in the habit of crossing there for a year before the accident, apparently with the knowledge of the officers of the railroad company in charge at the place, and certainly without protest or objection by them, so far as the record discloses. And the record discloses the fact that subsequently to the occurrence of the accident, the defendant constructed a fence on the north side of the track, such as was required by the ordinance, and which presents an effectual barrier against crossing the tracks. Certainly, it was more favorable to the defendant to let the question go to the jury to determine whether this disregard of the ordinance was in fact a violation of it, than for the court to decide, as a question of law, that there had not been compliance by the defendant with the ordinance. And the same observation is proper in regard to the other ordinance and the matter of a signal light on the advancing end of the engine or tender. But it is due to the appellant to say that no great reliance is placed upon this point, either in the brief or in the argument. Greater reliance is placed upon the questions raised by the other assignments of error, in connection with which the contributory negligence, with which it is sought to charge the plaintiff, may be considered.
2. The next assignment of error to be considered is that the trial court refused to hold, as matter of law, that the plaintiff was bound to exercise the same degree of care and prudence that an adult would have been bound to exercise under like circumstances.
It is not perhaps entirely correct to say, as is here implied, by the appellant, that there was any such refusal by the court below as intimated. The court was not requested by the defendant to make any such ruling; and, of course, it [606]*606could not refuse what it was not requested to do. But it did, on behalf of the plaintiff, and in the second instruction requested by the plaintiff, lay down the converse of the rule. That instruction is in the following words:
“In considering the question whether the plaintiff was guilty of contributory negligence, the jury are instructed that the rule of the law in regard to the negligence of an adult and the rule in regard to that of an infant of tender years are quite different. By the adult there must be given that care and attention for his own protection that is ordinarily exercised by persons of intelligence and discretion. If he fails to give it, his injury is the result of his own folly and can not be visited on another. Of an infant of tender years less discretion is required, and the degree depends upon his age and knowledge. Of a child of three years of age less caution would be required than of one of seven, and of a child of seven less than one of twelve or fifteen. The caution required is according to the maturity and capacity of the child. That is to be determined in this case by the circumstances of this particular case.”
And to this instruction as requested by the plaintiff and as given by the court with some explanations, which do not in any manner materially alter it, the defendant excepted; and such exception may be regarded as a sufficient basis for the assignment of error now made.
In support of the contention in this regard, the appellant cites numerous cases in which, as it claims, children, varying in age from five to thirteen years, have been held, as matter of law, guilty of contributory negligence. But it is unnecessary for us to consider those cases. One or two of them may support the appellant’s proposition; and that there may be cases where, upon the clear and uneontrafiicted evidence, even an infant of tender years may be held, as matter of law, to the result of his own acts as negligence or contributory negligence, may be conceded, as was conceded in the case of McMahon v. Northern Central Railway [607]*607Co., 39 Md. 438, 449. But that is not the proposition here advanced by the appellant. The proposition here is, that for the purpose of determining whether a plaintiff, a child of the age of about twelve years, is liable to the charge of contributory negligence, he is to be held precisely to the same degree of care and prudence that an adult would have been bound to exercise under the circumstances. In answer to the proposition it seems to us to be sufficient to say that it is directly in the face of the decision of the Supreme Court of the United States in the case of Railroad Co. v. Gladmon, 15 Wall. 401, from the opinion in which the plaintiff’s instruction excepted to has been taken verbatim. The rule laid down in that case was reiterated by the same court in the case of Railroad Co. v. Stout, 17 Wall. 660; and we are not advised that it has ever been modified in any respect. That rule we have been called upon to apply in several cases in this court. Railroad Co. v. Falvey, 5 App. D. C. 176; Railroad Co. v. Webster, 6 App. D. C. 182; Reiners v. W. & G. RR. Co., 9 App. D. C. 19. And we must regard it as decisive of the question now raised. As we have intimated, the question raised under this assignment of error is not whether, under all the circumstances of this case, the plaintiff, as matter of law, should be adjudged to have been guilty of contributory negligence; but whether, under circumstances to be submitted to a jury for determination of the issue of contributory negligence, the jury should be instructed that there was no difference between an adult and a child of tender years with regard to such issue. It would be error so to hold; and there was no error in holding the reverse.
3. The appellant’s third assignment of error is founded 'upon the allowance by the trial court of the first instruction requested by the plaintiff to be given to the j ury. That instruction is in the following words:
“The jury are instructed that if they find that the injuries received by the plaintiff on the evening of the 10th of [608]*608December, 1894, by being run over by a locomotive on the defendant’s railroad track on Maryland avenue, in the city of Washington, were caused by the negligence of some person or persons in the employ of the defendant company, then the plaintiff is entitled to a verdict, unless the jury further find from the evidence that the plaintiff’s own negligence contributed to the injury; and in determining whether the injury was caused by the negligence of the defendant’s employees or any of them the jury have aright to take into consideration the facts: (1) that the railroad tracks at the point where the accident occurred were not protected by a fence, as required by the regulation of the District Commissioners,' which is in evidence; (2) whether the light at the front end of the train was substantially such a light as required by the regulation of the District Commissioners, given in evidence, or such a light as was requisite to give proper warning of the approach of the train; (3) the distance passed over by the train after it struck the plaintiff before it was brought to a stop, and (4) all the evidence in the case tending to show whether or not the persons in charge of the engine drawing the train were keeping a proper lookout, and the jury will consider all the evidence in the case bearing upon these questions.”
To this instruction exception was taken, on the ground that it was not based upon any sufficient testimony in the case, and that it was, in part at least, inconsistent with the allegations of the declaration. That the instruction .is inaptly drawn, is loose in its phraseology and grammatical construction, and is perhaps to some extent misleading, seems to be quite clear; and if it stood alone, there might be grave question whether it would not warrant a reversal of the judgment. It refers to certain suggestions for consideration as being fads, when only one of the matters suggested could, with any propriety of language, be so characterized; and even that one seems to assume that the failure of the railroad company to construct a fence at the [609]*609place of the accident was an act of negligence per se, without reference to the question of its practicability or to the question whether the relation of the tracks at that place to the adjoining surface of the roadway justified the application thereto of the ordinance in regard to fencing. But the instruction does not stand alone; it was given to the jury by the court with an explanation so clear and ample as to leave no doubt of its meaning. The court informed the jury that they were not to understand from the instruction that the mere failure to keep a fence at this point should be regarded as being per se an act of negligence; but that it was for the jury to determine, under all the circumstances of the case, whether it was practicable and proper to have a fence at that point. Similarly in regard to the signal light upon the engine, the jury were told that the failure of the company to provide such a light for the engine as was required by the regulation of the Commissioners would not be an act of negligence, if the light that was there was a proper and sufficient one to give warning of the approach of the train. The instruction, so construed and explained, was as favorable to the defendant as it could reasonably expect.
The third and fourth suggestions of the instruction seem to be based upon the opinion of the Supreme Court of the United States in the case of the Grand Trunk Rwy. Co. v. Ives, 144 U. S. 408, 427; but it is argued that there was here no testimony to support them. Precisely the same argument, on the same grounds, was made in that case, and if, in this regard, there is any difference between that case and this, wre fail to find it. There the Supreme Court, by Mr. Justice Lamar, said:
“But it is claimed that the last paragraph of that portion of the charge last above quoted, referring to the question whether or not the trainmen kept a proper lookout and managed the train in a prudent and cautious manner, was erroneous, because, so it is claimed, ! there was no evidence [610]*610that the train hands kept no proper lookout, &c.’ This contention is also without merit. There was evidence that the ordinary signals of blowing the whistle and ringing the bell at the crossing were not given, and that the train was running at a more rapid rate than was permitted by the city ordinance. If the jury believed that evidence, they must necessarily have found that the trainmen did not keep a proper lookout, and did not manage the train in a prudent and careful manner.”
4. The refusal of the trial court to grant the sixth instruction requested by the defendant is the ground for the fourth and last assignment of error that is urged upon us. That instruction was in the following words:
“If the jury shall be satisfied from the evidence that a lighted lantern was suspended on the end of the engine which was being ‘backed’ into the city before and at the time of the accident, then and in that case it is immaterial, under the declaration in this case, whether or not such lighted lantern fulfilled the requirements of the police' regulations on that subject.”
Under the exception to the refusal of this instruction, and to some extent also under the exception to the granting of the first instruction requested by the plaintiff, which we have just considered, the theory of the appellant seems to be that there was a fatal variance- between the plaintiff’s declaration and the proof in the case. It is argued that the allegation of the declaration is that there was no light on the rear part of the engine, which was the part that was moving forward; and that, as the testimony shows, and may be assumed to show conclusively, that there was a lighted lantern on such rear part, this element of a light is entirely eliminated from the controversy. But we do not understand the allegation of the declaration to be as claimed in this argument. The words of the declaration are that “ there was no light on the rear part of said engine to indicate its approach,” and the reasonable intendment of this state[611]*611ment is, not that there was no light at all upon the rear part of the engine, but that there was no such light as would indicate its approach. And it was left to the jury, as already stated, to determine whether there was such a light, regardless of the fact that it may not have conformed to the regulation of the Commissioners. This was as favorable to the defendant as it had any good reason to expect; and the sixth instruction requested by the defendant was properly rejected.
We find no error in the record of this case that, in our opinion, would justify a reversal of the judgment; and that j udgment must therefore be affirmed, with costs. And it is so ordered.