Beannon, Judge:
The Hughes Creek Coal Company is a private corporation engaged in Mining Coal, its works being on land owned by it-on the line of the Kanawha & Michigan railroad. As a part of its operating equipment it has tracks ’for receiving empty railroad cars and loading coal, connecting with the said railroad, as a switch track, but on its own land. It had some empty cars standing on its track. The track had a slight down grade from a point [712]*712at the top of the grade called a lmuclde, the point where empty cars stood. One of the company’s employees, in order to take one of these cars from the knuckle to the coal tipple to be loaded from tire mine, started it down the light one degree grade, it moving by gravity, and having started by prying it with a crow bar, he got on the rear end of the gondola car, and moved slowly, he says occupying him five minutes, to the front end where the brake was, the car moving slowly, at the rate of three or four miles an hour. The plaintiff, a child of twenty three months named Albert A. Martin, got out of the gate of the yard of its home went to this track, and in seeking to cross one of his arms was caught by the moving car and so badly mashed at the elbow that amputation of its arm was necessary. In an action brought by the child a verdict was found for Mm, which was set aside by the court, and Martin brings a writ of error.
The coal company upon its own premises was rising the car in a lawful manner in the transaction of its business. The child had no right upon the railroad track, and was thus, in the eye of the law, a trespasser. It is not legally speaking harsh or unwar* ranted to denominate a child a trespasser under such circumstances ; for he is on the property of others uninvited, where has no right to be; he is in law a trespasser, and the owner of the premises owes him no duty except not to wantonly or wilfully injure him. The same rule here applies to a child as to an adult. Palmer v. Oregon Short Line, 16 Ann. Cases 229 ; 4 Ann. Cases, note p. 680. In note page 247 are cited many cases for the proposition that “the recent cases adhere to the rule that railroad companies ordinarily owe no duty to children trespassing on their tracks, except the negative one not to injure them after discovering their presence.” It owes no affirmative, positive duty. That great writer Thompson, in his work on Negligence, Yol. 1, secs. 1024, 1025, says, “As a general rule, he (the owner of premises) is not bound to keep his premises safe or in any particular condition for the benefit of trespassing children of his neighbor, or for the benefit of children who occupy no more favorable condition than that of the bare licensees.” “The general rule undoubtedly is, that the owner or occupier of land is not bound to take pains to prepare his premises in any particular way, to the end of promoting the safety of children who may come thereon [713]*713as trespassers or as bare licensees; bnt that, as in the case of adults, they take the premises as they find them, and if they are killed or injured by reason of condition in which they find them, this does not give a right to an action for damages. Liability Extends only to Wanton Injuries. One doctrine under this head is that if a child trespasses upon the premises of the defendant, and is injured in consequence of something that befalls him while'so trespassing, he can not recover damages, unless the injury was wantonly inflicted, or was due to the recklessly careless conduct of the defendant.” Thompson personally criticises the rule, but says it is beyond question the established law. We held this same principle in Uthermolen v. Boggs Run Co., 50 W. Va. 457, and Ritz v. Wheeling, 45 W. Va. 457, and Conrad v. Railroad Co., 64 W. Va. 176, and Dickens v. Liverpool Co., 41 W. Va. 511, cases of injury to children. In them is full discussion of this subject, and we shall not repeat their contents, or tediously elaborate. We assert that these cases do lay down principles which control the present ease. As the law says that the coal company owed no duty to this unfortunate child, there could be no legal negligence; and where there is no negligence there is no liability. If the employee had seen the child and taken no care to save it, then we could say there was negligence in law, constituting wanton or wilful injiuy, and therefore legal liability under principles above stated; but the boy who was moving the car did not see the child. It is not proven or claimed that he did. He did not know that the child had been injured until the car reached the tipple, when he was told of the misfortune. The car started before the child reached the track. Just the distance from where the car started to where the child received its hurt is not certain, but from 75 to 90 feet. Bowers, the boy talcing the car down, was not on the end of the car next to the child, where was the only brake, but at the rear end, seeming not to be intent on the brake, as the car was moving so slowty, and the tipple not reached. Why Bowers did not see the child may be that being on the back end of the car, and the box of the oar being four boards high, 4y2 feet from floor to top, he did not see it.
But though Bowers did not see the child, }'et it is argued that he could and should have done so. [714]*714This is claim that the defendant was bound to keep a lookout for the child. This claim is repelled by authorities above, as they hold that as to either children or adults trespassing on private premises the owner owes no duty except not to wantonly injure after discovery of the presence of the child, Here I may cite a case very much kindred to this one as to the general principle above stated, and particularly as to the matter of lookout. It is Emerson v. Peteler, 35 Minn, 481. A contractor was grading a street for a city, and used dump ears in a street moved by gravity to carry away earth. Two children got on one of these cars, and when the cars were in motion a child o'f five years jumped off the ear and was killed. The children were uot seen. The court said, “The only ground upon which negligence is predicated is the failure to provide better police supervision of the movement of the cars in order to prevent children from boarding them. * * * * But we do not think the law required the defendant, under the circumstances, to provide police supervision to keep off intruders or trespassers from these cars, whether children or adults. He was engaged in improving the street, and his cars and track were lawfully in it for such purpose. * * * * Where there is no negligence, the incapacity of the child who happens to be injured cannot create liability. Kay v. Penn R. Co., 65 Pa. St. 369, 371. The burden rested on the plaintiff to establish negligence, and it is not claimed that there was any, unless the failures to employ help to watch and keep children away was such. But the duty which the' defendant owed these children was not to keep constant watch, or to use extraordinary care, to prevent their approach, but when discovered in the exercise of ordinarj’' care, to use proper diligence to prevent injury to them.” The court said, as I say in this case, that it was an instance of unfortunate accident imposing no liability on the contractor.
If these principles do not rule this case, what the use of private property ? Its use is all there is of benefit in it, and if its use is to be so restricted where its benefit? It would be so narrowed.
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Beannon, Judge:
The Hughes Creek Coal Company is a private corporation engaged in Mining Coal, its works being on land owned by it-on the line of the Kanawha & Michigan railroad. As a part of its operating equipment it has tracks ’for receiving empty railroad cars and loading coal, connecting with the said railroad, as a switch track, but on its own land. It had some empty cars standing on its track. The track had a slight down grade from a point [712]*712at the top of the grade called a lmuclde, the point where empty cars stood. One of the company’s employees, in order to take one of these cars from the knuckle to the coal tipple to be loaded from tire mine, started it down the light one degree grade, it moving by gravity, and having started by prying it with a crow bar, he got on the rear end of the gondola car, and moved slowly, he says occupying him five minutes, to the front end where the brake was, the car moving slowly, at the rate of three or four miles an hour. The plaintiff, a child of twenty three months named Albert A. Martin, got out of the gate of the yard of its home went to this track, and in seeking to cross one of his arms was caught by the moving car and so badly mashed at the elbow that amputation of its arm was necessary. In an action brought by the child a verdict was found for Mm, which was set aside by the court, and Martin brings a writ of error.
The coal company upon its own premises was rising the car in a lawful manner in the transaction of its business. The child had no right upon the railroad track, and was thus, in the eye of the law, a trespasser. It is not legally speaking harsh or unwar* ranted to denominate a child a trespasser under such circumstances ; for he is on the property of others uninvited, where has no right to be; he is in law a trespasser, and the owner of the premises owes him no duty except not to wantonly or wilfully injure him. The same rule here applies to a child as to an adult. Palmer v. Oregon Short Line, 16 Ann. Cases 229 ; 4 Ann. Cases, note p. 680. In note page 247 are cited many cases for the proposition that “the recent cases adhere to the rule that railroad companies ordinarily owe no duty to children trespassing on their tracks, except the negative one not to injure them after discovering their presence.” It owes no affirmative, positive duty. That great writer Thompson, in his work on Negligence, Yol. 1, secs. 1024, 1025, says, “As a general rule, he (the owner of premises) is not bound to keep his premises safe or in any particular condition for the benefit of trespassing children of his neighbor, or for the benefit of children who occupy no more favorable condition than that of the bare licensees.” “The general rule undoubtedly is, that the owner or occupier of land is not bound to take pains to prepare his premises in any particular way, to the end of promoting the safety of children who may come thereon [713]*713as trespassers or as bare licensees; bnt that, as in the case of adults, they take the premises as they find them, and if they are killed or injured by reason of condition in which they find them, this does not give a right to an action for damages. Liability Extends only to Wanton Injuries. One doctrine under this head is that if a child trespasses upon the premises of the defendant, and is injured in consequence of something that befalls him while'so trespassing, he can not recover damages, unless the injury was wantonly inflicted, or was due to the recklessly careless conduct of the defendant.” Thompson personally criticises the rule, but says it is beyond question the established law. We held this same principle in Uthermolen v. Boggs Run Co., 50 W. Va. 457, and Ritz v. Wheeling, 45 W. Va. 457, and Conrad v. Railroad Co., 64 W. Va. 176, and Dickens v. Liverpool Co., 41 W. Va. 511, cases of injury to children. In them is full discussion of this subject, and we shall not repeat their contents, or tediously elaborate. We assert that these cases do lay down principles which control the present ease. As the law says that the coal company owed no duty to this unfortunate child, there could be no legal negligence; and where there is no negligence there is no liability. If the employee had seen the child and taken no care to save it, then we could say there was negligence in law, constituting wanton or wilful injiuy, and therefore legal liability under principles above stated; but the boy who was moving the car did not see the child. It is not proven or claimed that he did. He did not know that the child had been injured until the car reached the tipple, when he was told of the misfortune. The car started before the child reached the track. Just the distance from where the car started to where the child received its hurt is not certain, but from 75 to 90 feet. Bowers, the boy talcing the car down, was not on the end of the car next to the child, where was the only brake, but at the rear end, seeming not to be intent on the brake, as the car was moving so slowty, and the tipple not reached. Why Bowers did not see the child may be that being on the back end of the car, and the box of the oar being four boards high, 4y2 feet from floor to top, he did not see it.
But though Bowers did not see the child, }'et it is argued that he could and should have done so. [714]*714This is claim that the defendant was bound to keep a lookout for the child. This claim is repelled by authorities above, as they hold that as to either children or adults trespassing on private premises the owner owes no duty except not to wantonly injure after discovery of the presence of the child, Here I may cite a case very much kindred to this one as to the general principle above stated, and particularly as to the matter of lookout. It is Emerson v. Peteler, 35 Minn, 481. A contractor was grading a street for a city, and used dump ears in a street moved by gravity to carry away earth. Two children got on one of these cars, and when the cars were in motion a child o'f five years jumped off the ear and was killed. The children were uot seen. The court said, “The only ground upon which negligence is predicated is the failure to provide better police supervision of the movement of the cars in order to prevent children from boarding them. * * * * But we do not think the law required the defendant, under the circumstances, to provide police supervision to keep off intruders or trespassers from these cars, whether children or adults. He was engaged in improving the street, and his cars and track were lawfully in it for such purpose. * * * * Where there is no negligence, the incapacity of the child who happens to be injured cannot create liability. Kay v. Penn R. Co., 65 Pa. St. 369, 371. The burden rested on the plaintiff to establish negligence, and it is not claimed that there was any, unless the failures to employ help to watch and keep children away was such. But the duty which the' defendant owed these children was not to keep constant watch, or to use extraordinary care, to prevent their approach, but when discovered in the exercise of ordinarj’' care, to use proper diligence to prevent injury to them.” The court said, as I say in this case, that it was an instance of unfortunate accident imposing no liability on the contractor.
If these principles do not rule this case, what the use of private property ? Its use is all there is of benefit in it, and if its use is to be so restricted where its benefit? It would be so narrowed. If this coal company could no.t freely use, on its own ground, this car in the necessary transaction of its work; if that use must be hampered by the duty of keeping a. constant Argus-' eyed watch, it would largely detract from and damage right of [715]*715private property. If these principles do not apply where is the limit?'
It is contended that as the law of West Virginia requires public railways to keep a watch on the track to see children, the samé reason called for,a watch of the defendant’s switch track. The preponderance of authority perhaps is that a railroad company is not bound to keep a watch for children on its track. Palmer v. Short Line, 16 Ann. Cases 228, and note p. 247; Southern R. Co. v. Chatman, 4 Ann. Cases 675 and note p. 680. But our law is different. Gunn V. Railroad, 42 W. Va. 676. However there is a difference in this respect between a public railroad and one of a coal operator used on his own premises for transacting his private business. The one is a public road, the other private. The public railroad train, traverses great stretches of country, at great speed, the coal operator’s cars go slowly a short distance. We know by judicial cognizance as a matter 'known of all men, that great numbers of people do walk on the public railroad track, and their presence on it in many instances may be expected; not so in the case of the private track operated in carrying on a coal mine.
We think on principles above stated that there was no error in giving the following instructions: No. 2. “The court instructs the jury that the burden of proving negligence is upon the plaintiff, and that the bare fact that the plaintiff was injured does not raise a prima facie presumption of negligence on the part of the defendant.” No. 3. “The court instructs the jury that the defendant owed no duty to mere trespassers to keep its premises safe, and the fact that the trespasser is a child does not alter the duty owed to him.” No. 4. “The court instructs the jury that the only duty owed by the defendant to the plaintiff was not to wantonly or wilfully injure him.” No. 5. “The court instructs the jury that the defendant was not bound to take pains to prepare his premises in any particular way or the cars used thereon to the end of promoting safety of children who might come thereon as trespassers or as bare licensees, but that the plaintiff must take the premises as they were and as they were being used at the time he came on them, and if they believe from the evidence that the defendant, through its servants, did not wilfully or wantonly injure the plaintiff, then they must find for the de[716]*716fendant.” No. 6. “The court instructs the jury that the law is that the defendant owed to the plaintiff no higher duty or obligation than it owed to an adult who may have been a trespasser upon its premises, and that in order for the plaintiff to recover he must show by a preponderance of the evidence that Ed Bower the agent of the defendant company wilfully or wantonly caused the injury complained of in the plaintiff’s declaration.”
We think the court should have given instruction No. 1 as follows: “The court instructs the jury that the evidence in this case is not sufficient to support the verdict for the plaintiff, and they must therefore find for the defendant.”
Under these principles we affirm the judgment of the circuit court granting a new trial.
Affirmed.