Taylor, C. J.
(after stating the facts.)
The rulings of the court below upon.' the demurrers to the original and amended declarations, and the entry • of the final judgment thereon are assigned as error.
[23]*23The gist of the contention made by these demurrers is that neither >of 'the counts, of the original or amended declaration, when confessed to be true, makes out a case of legal liability against the defendant company.
There are four counts to the original declaration and two to the amended declaration, and for convenience we will refer to them- as the 1st, 2nd, 3rd, 4th, 5th and 6th counts, in the order in which they appear in the accompanying statement.
The merits of the declaration involves a discussion of the following section 1 of Chapter 4071, acts of the Florida legislature of 1891: “A railroad company shall be liable for any damage done to- persons, stock or other property, by the running of the locomotive, 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 reasonable care and diligence, the presumption in all cases being against the company.” This section, as will be seen on comparison, was adopted here from the statutes of the State of Georgia; Code of Georgia (1873) §3°33 (Ed. of 1895, §2321) ; and seems to have been originally enacted there as early as the legislative session of the years 1855 and 1856.
In the well considered case of Crawford v. Southern Railway Company, 106 Ga. 870, 33 S. E. Rep. 826, in discussing this statute, the court, quoting approvingly from Holland v. Sparks, 92 Ga. 753, 18 S. E. Rep. 990, says; “What will constitute the amount or kind of diligence which will be required as ‘ordinary and reasonable,’ must necessarily vary under different circumstances. It can not be measured or ascertained by any [24]*24fixed and inflexible standard, because the words just quoted are themselves relative terms, and what, under some conditions, would be ordinary, and reasonable diligence might under other conditions, amount to' even gross negligence. For instance, for most purposes, running a passenger train through the country at the rate of twenty-five miles- an hour would be safe, prudent and proper, while to run the same train at this rate over a crossing in a crowded citjr would' amount to wantonness. The measure of diligence due, therefore, by a railroad company to any person is a relative one, and what is or is not due diligence must be arrived at in every case with reference to the -surrounding circumstances and the relations which, for the time being, the company and the person in question occupied towards each other.” And .again, in the same case (Crawford v. Southern Railway Co.), it is said: “Admitting, for the sake of the argument, that the general rule is that a railroad company owes no duty to the trespasser whoi is. upon or dangerously near its track in front of a moving train, until its servants have discovered his presence there, and therefore so far as his safety is- concerned, is not obliged to maintain a,lookout in the direction in which the train is moving, we do not think that this could properly be held to be a uniform, fixed and invariable rale applicable alike to all cases and under all circumstances. Conduct which might, under one set of circumstances, show that all ordinary and reasonable care and diligence had been observed, might, under a different set of circumstances, be insufficient to show an observance of such care and diligence. We think that such a rule could mean no more than this: talcing the locality where the! train is running and all the surrounding circumstances,, if tiróse in control of the movement of the train have no reason to appre[25]*25hend that there may likely be a human being on the track in front of the engine, they are under no- duty to one who may in fact be there, until they have actually discovered that he is there. But if, from the locality or surrounding circumstances, there is reason to' apprehend that the track in front of the locomotive may not be clear of human beings, then it seems to- us, it is the duty of the employes of the company to keep' a lookout ahead of the train. * * * Suppose- that a locomotive, engineer knows that, in a particular locality, people and -especially children, without even an implied license of the railroad company, are likely to- be upon the railroad track, can he, while his train is rushing at great velocity through this locality, fail to- look down the track in front of him, without being guilty of negligence relatively to a child who may be injured or killed by the locomotive? Are people, children as well as adults, likely, at least in daylight, to be very near or upon a railway--track within the limits of a populous city, at points where they have no right to go upon the right of way of the company? If they are, is a man charged with the running and control of a railroad train * * * under no duty, relatively to such people, when his train is running through such a city, either to slacken its speed or to look ahead of his engine? These are questions which we feel sure no court can, as mere matters of law, decide in the negative.” This construction thus put upon this statutory phrase, “all ordinary and reasonable care and diligence,” the absence of which in cases of personal injury by railway companies fastens them- with legal liability, is consonant with the general definition of negligence as entertained by many of the courts and by eminent text-writers. Thus in Railroad Company v. Jones, 95 U. S. 439, it is defined as follows: “Negligence is the failure to [26]*26do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion.” The latter clause of this definition the writer would amend as. follows : The duty is dictated and measured by the exigencies of the occasion, as they were known, to exist, or should reasonably have been known or expected to exist, from other known and existent facts, and circumstances, by the party charged with default. Kay v.Penna. R.R.Co. 65 Pa. St. 269, S. C. 3 Am. Rep. 628; Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. Rep. 619; Young v. Clark, 16 Utah 42, 50 Pac. Rep. 832; Blankenship v. Ches. & O. Ry. Co. 94 Va. 449, 27 S. E. Rep. 20; 2 Shearman & Redfield on Neg. (5th. ed) §484; Florida Central & Peninsular R. R. Co. v. Williams, 37 Fla. 406, 20 South. Rep. 558; Mitchell v. Boston & Maine R. R. 68 N. H. 96, 34 Atl. Rep. 674; Dublin, Wicklow & Wexford Ry. Co. v. Slattery, L. R. 3 App. Cas. 1155. Of course we do' not wish to be understood, in what has been said touching the provisions of our statute quoted above, as holding that in any and all cases and under any and all circumstances such companies are to be held only to the exercise of ordinary
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Taylor, C. J.
(after stating the facts.)
The rulings of the court below upon.' the demurrers to the original and amended declarations, and the entry • of the final judgment thereon are assigned as error.
[23]*23The gist of the contention made by these demurrers is that neither >of 'the counts, of the original or amended declaration, when confessed to be true, makes out a case of legal liability against the defendant company.
There are four counts to the original declaration and two to the amended declaration, and for convenience we will refer to them- as the 1st, 2nd, 3rd, 4th, 5th and 6th counts, in the order in which they appear in the accompanying statement.
The merits of the declaration involves a discussion of the following section 1 of Chapter 4071, acts of the Florida legislature of 1891: “A railroad company shall be liable for any damage done to- persons, stock or other property, by the running of the locomotive, 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 reasonable care and diligence, the presumption in all cases being against the company.” This section, as will be seen on comparison, was adopted here from the statutes of the State of Georgia; Code of Georgia (1873) §3°33 (Ed. of 1895, §2321) ; and seems to have been originally enacted there as early as the legislative session of the years 1855 and 1856.
In the well considered case of Crawford v. Southern Railway Company, 106 Ga. 870, 33 S. E. Rep. 826, in discussing this statute, the court, quoting approvingly from Holland v. Sparks, 92 Ga. 753, 18 S. E. Rep. 990, says; “What will constitute the amount or kind of diligence which will be required as ‘ordinary and reasonable,’ must necessarily vary under different circumstances. It can not be measured or ascertained by any [24]*24fixed and inflexible standard, because the words just quoted are themselves relative terms, and what, under some conditions, would be ordinary, and reasonable diligence might under other conditions, amount to' even gross negligence. For instance, for most purposes, running a passenger train through the country at the rate of twenty-five miles- an hour would be safe, prudent and proper, while to run the same train at this rate over a crossing in a crowded citjr would' amount to wantonness. The measure of diligence due, therefore, by a railroad company to any person is a relative one, and what is or is not due diligence must be arrived at in every case with reference to the -surrounding circumstances and the relations which, for the time being, the company and the person in question occupied towards each other.” And .again, in the same case (Crawford v. Southern Railway Co.), it is said: “Admitting, for the sake of the argument, that the general rule is that a railroad company owes no duty to the trespasser whoi is. upon or dangerously near its track in front of a moving train, until its servants have discovered his presence there, and therefore so far as his safety is- concerned, is not obliged to maintain a,lookout in the direction in which the train is moving, we do not think that this could properly be held to be a uniform, fixed and invariable rale applicable alike to all cases and under all circumstances. Conduct which might, under one set of circumstances, show that all ordinary and reasonable care and diligence had been observed, might, under a different set of circumstances, be insufficient to show an observance of such care and diligence. We think that such a rule could mean no more than this: talcing the locality where the! train is running and all the surrounding circumstances,, if tiróse in control of the movement of the train have no reason to appre[25]*25hend that there may likely be a human being on the track in front of the engine, they are under no- duty to one who may in fact be there, until they have actually discovered that he is there. But if, from the locality or surrounding circumstances, there is reason to' apprehend that the track in front of the locomotive may not be clear of human beings, then it seems to- us, it is the duty of the employes of the company to keep' a lookout ahead of the train. * * * Suppose- that a locomotive, engineer knows that, in a particular locality, people and -especially children, without even an implied license of the railroad company, are likely to- be upon the railroad track, can he, while his train is rushing at great velocity through this locality, fail to- look down the track in front of him, without being guilty of negligence relatively to a child who may be injured or killed by the locomotive? Are people, children as well as adults, likely, at least in daylight, to be very near or upon a railway--track within the limits of a populous city, at points where they have no right to go upon the right of way of the company? If they are, is a man charged with the running and control of a railroad train * * * under no duty, relatively to such people, when his train is running through such a city, either to slacken its speed or to look ahead of his engine? These are questions which we feel sure no court can, as mere matters of law, decide in the negative.” This construction thus put upon this statutory phrase, “all ordinary and reasonable care and diligence,” the absence of which in cases of personal injury by railway companies fastens them- with legal liability, is consonant with the general definition of negligence as entertained by many of the courts and by eminent text-writers. Thus in Railroad Company v. Jones, 95 U. S. 439, it is defined as follows: “Negligence is the failure to [26]*26do what a reasonable and prudent person would ordinarily have done under the circumstances of the situation, or doing what such a person under the existing circumstances would not have done. The essence of the fault may lie in omission or commission. The duty is dictated and measured by the exigencies of the occasion.” The latter clause of this definition the writer would amend as. follows : The duty is dictated and measured by the exigencies of the occasion, as they were known, to exist, or should reasonably have been known or expected to exist, from other known and existent facts, and circumstances, by the party charged with default. Kay v.Penna. R.R.Co. 65 Pa. St. 269, S. C. 3 Am. Rep. 628; Union Pacific Ry. Co. v. McDonald, 152 U. S. 262, 14 Sup. Ct. Rep. 619; Young v. Clark, 16 Utah 42, 50 Pac. Rep. 832; Blankenship v. Ches. & O. Ry. Co. 94 Va. 449, 27 S. E. Rep. 20; 2 Shearman & Redfield on Neg. (5th. ed) §484; Florida Central & Peninsular R. R. Co. v. Williams, 37 Fla. 406, 20 South. Rep. 558; Mitchell v. Boston & Maine R. R. 68 N. H. 96, 34 Atl. Rep. 674; Dublin, Wicklow & Wexford Ry. Co. v. Slattery, L. R. 3 App. Cas. 1155. Of course we do' not wish to be understood, in what has been said touching the provisions of our statute quoted above, as holding that in any and all cases and under any and all circumstances such companies are to be held only to the exercise of ordinary care in the narrowest and most confined sense of the term “ordinary;” but our meaning is that such companies in every case falling within the purview of this statute are bound to exercise all ordinary and reasonable care-and diligence strictly commensurate with the, exigencies of the occasion and demanded by the relationship that it bears for the time being to' the party in question. Thus it is generally held that to passengers on its trains such com[27]*27panies are due the highest degree of care. The word “highest” is the superlative in comparisons. When the care due from them to their passengers is held up in comparison to that due to a trespasser on their tracks, or to one of their conductors or brakemen, or to a tramp stealing his passage, it may properly be termed “highest;” and the purpose of this statute is not to' abrogate these established phrases expressive of comparative degree of care due in varying cases to' persons occuping different relations to the company and surrounded by varying circumstances and conditions, but its meaning is that in order to fulfill the measure, of “all ordinary and reasonable care and diligence” in-the particular case of a passenger the care ordinarily demanded towards passengers, which is the highest degree of care, strictly and reasonably commensurate with his relationship as such to the companyand with the circumstances of the situationmust be observed; in that of a trespasser on its tracks all the care and diligence ordinarily and reasonably commensurate with his particular relationship' to* the company and with the circumstances of the situation, whenever under a duty to him, though it is a different kind of care, and may properly be said to be much lower in degree to that due to' the passenger, and so on in all the varying cases as they may occur.
Applying these principles to the several counts of the declaration, we think that the first count states a case calling for a defence, and submissible to' a jury. Conceding that its allegations are insufficient to' show the existence of a public crossing of its tracks at the point of the alleged injury, in the broadest-sense of the term “pubic crossing,” entitling the public of right generally to go there, yet it does definitely allege that the, defendant itself maintained an open roadway into its yard and [28]*28across its tracks for the use of all persons receiving or delivering freight from or to it, which is equivalent to an allegation of an express invitation by the defendant to all persons receiving or delivering freight to- go- there, and that all such persons could lawfully and rightfully go there; and ,without giving his age, it also- alleges that the plaintiff was lawfully there. Under these circumstances, admitted by the demurrer to- be true, it was the duty of the company, dictated by. these alleged facts and circumstances, to use all ordinary and reasonable care-in moving- its cars about such crossing to avoid injury to persons thus invited there and who might reasonably have been expected to be, there. One of such precautions, at least, under the circumstances, was- to give the ordinary signals of warning of the approach of cars which it alleg-es was not done; and it is also> alleged that it negligently pushed its cars back upon the plaintiff with great speed.
The second count of the declaration, without alleging plaintiff’s age, follows the approved form as set out in 2 Chitty on Pleading (16th Am. ed.) 576 and is, we think, not subject to> demurrer. Contributory negligence, if any, on the part of the plaintiff in such'cases need not be expressly negatived in his declaration, but is matter of affirmative defence. This was true before the enactment of section 2 of said Chapter 4071, acts- of 1891, and since the adoption of this statute, that makes contributory negligence, only a partial defence, the rule of pleading applies with even greater force.
What is said of the second count applies substantially also to the third count.
Conceding that the fourth count does not sufficiently allege the existence at the place of the injury of a public crossing of the defendant’s tracks, yet we think [29]*29it states a case for the submission to a jury on. the question as to whether the defendant company used all ordinary and reasonable care and diligence called for, demanded and dictated by the exigences of the. occasion as they are alleged to have existed. The count in question alleges in substance that tire defendant maintained its tracks and switchyard in the city of Jacksonvillle in close proximity to Bay street of said city; that it kept and mantained an opening or roadway, forty feet in width, from Bay street into its yard and across its tracks. What were the uses or purposes for which this roadway was kept or maintained are not alleged, but its existence is clearly stated; that the plaintiff, without fault or negligence on the part' of his parents, and without their knowledge, he being of the age of only three years' and four months, wandered into said yard through said opening or roadway, and while playing on the crossing, unconscious of his danger, the defendant by a “kicking switch,” and without any signal or warning, and without any brakeman being on the rear end of the cars, or at said crossing violently backed its cars over him, inflicting the severe injuries alleged. There is no allegation that the defendant inflicted the injury after discovering the plaintiff, or that it was wantonly or purposely done. Under these circumstances it presents a question for a jury to determine whether, in view of all the surrounding facts and circumstances, such as that the defendant’s switch yard was located in. a populous city like Jacksonville, that it maintained' into’ said yard apd across its tracks an open roadway or driveway leading out to the thoroughfare called Bay street in said city, of the width of an ordinary street, it was reasonable for the defendant and its servants to anticipate that persons would in all probability, at some time or other, wander into its yard [30]*30and. be there exposed to danger, and thus ■ anticipating, whether it was in the exercise of all ordinary and reasonable care and diligence, commensurate with the exigencies of the occasion in not keeping a barrier or guard of some kind at said opening, or if so-, in >kicking back cars, across the entrance of said roadway into said yard without signals, of warning, and without having a brakeman on the rear of said cars, and without having said cars under the control of either a brakeman or an engine when propelled backward at great speed.
What is here said of the fourth count applies with greater emphasis to the allegations of the fifth and sixth counts.
It follows from what has been said, that the court below erred in sustaining- the two demurrers to the original and amended declaration and in the entry of the final judgment thereon ag-ainst the plaintiff. It is therefore ordered that the judgment of the court be reversed with directions to overrule the demurrers to the original and amended declaration, and for such further proceedings as may be consonant with law.