RAMSEY, J.
(after stating the case). Defendant contends that the plaintiff was either a bare licensee or trespasser; that he was of sufficient age to be charged, as a matter of law, with having assumed the risk incident to the dangerous position he occupied on the pilot step of the engine at the time the watchman moved the engine, and that, being a trespasser or licensee, it owed him no duty except that it should not wantonly or willfully injure him, and should exercise ordinary care not to injure him after discovering him in a perilous position. Defendant contends that the watchman’s conduct in permitting plaintiff to assist him and occupy the dangerous place on the pilot step of the engine was wholly unauthorized, beyond the scope of his authority, and consequently the proximate cause of plaintiff’s injury was either the unauthorized conduct of the watchman in permitting the boy to assist him, or the act of the plaintiff in falling off the engine; that it is admitted by plaintiff that the injury was not occasioned by any defect in the road-bed or machinery or method of operating the engine. ¡Defendant cites a number of cases, notably Daugherty v. Chicago, M. & St. P. R. Co. (Iowa) 14 L. R. A. (N. S.) 590, holding that the master is not liable for the unauthorized acts of his employe in permitting a child to occupy a dangerous position on the master’s vehicle or premises. See, also, Foster-Herbert Cut Stone Co. v. Pugh (Tenn.) 91 S. W. 199, 4 L. R. A. (N. S.) 804; Schulwitz v. Delta Lumber Co., 126 Mich. 559, 85 N. W. 1075; Mahler v. Stott, 129 Mich. 614, 89 N. W. 340; Formall v. Standard Oil Co. (Mich.) 86 N. W. 946; Curtis v. Tenino Stone Quarries, 37 Wash. 355, 79 Pac. 955; Buch v. Amory Mfg. Co., 69 N. H. 257, 76 Am. St. Rep. 163; Bowler v. O’Connell, 162 Mass. 319, 44 Am. St. Rep. 359; Flower v. Pennsylvania R. Co., 69 Pa. 210, 8 Am. Rep. 251; Keating v. Michigan Central R. Co. (Mich.) 37 Am. St. Rep. 328.
WRile sometimes difficult to distinguish a license from an invitation, it is clear from the record in this case that the plaintiff was neither a licensee nor invitee. A license implies permission or authority. The permission and authority amounting to a license must be either expressly or impliedly granted. A mere sufferance or failure to object to one’s presence upon another’s premises is not sufficient within itself to constitute a license, unless under such circumstances that permission should be inferred. Elliott on Railroads, vol. 3, sec. 1245. Neither sufferance, nor permission, nor passive acquiescence, is equivalent to an invitation. Elliott on Railroads, vol. 3, secs. 1154 and 1249. The permission of the night watchman for plaintiff to assist him and ride on the pilot step of the engine did not make plaintiff an invitee. The night watchman had no authority to invite the plaintiff to assist him or to permit him to occupy the place on the engine pilot step. That is clear. Forbrick v. General Electric Co., 92 N. Y. Supp. 36; Larmore v. Crown Point Iron Co., 101 N. Y. 291, 54 Am. Rep. 718; Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175. The measure of the railroad’s dluty to an invitee is not involved in this case, and we will pass that by.. It is also clear that the plaintiff was not a licensee. Plaintiff had no permission from anyone having the slightest authority to grant him permission to be on or about the engine, and it is not shown that any authorized agent or servant of the defendant either expressly or impliedly permitted the plaintiff to be on or about the engine, and being there in violation of the rules of the company, he was not a licensee. Bouvier’s Law Dictionary (3d Ed.) vol. 2, p. 1974; Means v. Southern Calif. R. Co., 144 Cal. 473, 1 Ann. Cas. 206; A., T. & S. F. R. Co. v. Cogswell, 23 Okla. 181, 99 Pac. 923; Midland V. R. Co. v. Littlejohn, 44 Okla. 8, 143 Pac. 1; Brown v. Boston & M. R. Co. (N. H.) 64 Atl. 194; Norfolk
&
W. Ry. Co. v. Denney’s Admr., 106 Va. 383, 56 S. E. 321. Plaintiff was not upon the engine to transact any business between himself and defendant. He got on the engine on his own volition, uninvited, in violation of the rules of the company, and was a trespasser. But whether he was a trespasser or bare licensee makes no difference. If he was a mere licensee,
the defendant owed him no legal duty except not to wantonly or willfully injure him and to exercise ordinary care not to injure him when found in a perilous position. Plaintiff’s counsel contend that, although the watchman had no authority to permit the boy to ride on the engine, and 'although plaintiff may be treated as a trespasser, nevertheless, the defendant is responsible for the conduct of the watchman in moving the engine with the plaintiff standing on the pilot step; that no matter how the boy got on the engine, whether at the invitation of the watchman or on his own motion, the defendant owed him ‘the duty to exercise ordinary care not to injure him; that the watchman in moving the engine was acting in the line of his service and in the scope of his authority, and that when he discovered the boy on the pilot step of the engine, it then became the duty of the watchman to put the boy off, and that the failure to discharge that duty before moving the engine was the proximate cause of the boy’s injury. The law is well settled in this state that, although a trespasser is a wrongdoer, and the courts do not ordinarily aid a wrongdoer, nevertheless, the owner of the premises cannot justifiably, wantonly, willfully or maliciously mistreat or injure him; also that the owner of the premises is responsible for the failure to use ordinary care to avoid injuring the trespasser after discovering his perilous position. That rule is pretty well settled in this jurisdiction. Thorp v. St. Louis & S. F. R. Co., 73 Oklahoma, 176 Pac. 240; Atchison, T. & S. F. R. Co. v. Miles, 69 Oklahoma, 170 Pac. 896; Wilhelm v. M., O. &
G.
R. Co., 52 Okla 317, 152 Pac. 1088. In starting and running the engine, the watchman was undoubtedly within the scope of his duty; he was performing services for his master. No one would deny that it would have been the duty of the watchman to have endeavored to stop his engine before running into a trespasser discovered in a perilous position on the track. While he had the right to presume that the-track was clear, and was under no obligation to keep a lookout for trespassers, as held by this court in Atchison, T. & S. F. R. Co. v. Miles, supra, nevertheless, if he had discovered a trespasser in a perilous position on the track, it would have been his duty to exercise ordinary care to avoid doing him an injury. This brings the case down to the sole issue: Was it negligence on the part of the watchman to move the engine with the plaintiff standing on the pilot step? Now, the plaintiff was required to exercise care and caution, and when he voluntarily assumed that position on the pilot step, if he had capacity to understand the dangers, he assumed the concomitant and incidental perils of one riding on the pilot step of an engine operated under similar circumstances. There is a great number of decisions exonerating the railroad, or owner of the premises, from damages suffered by trespassing children who have reached the age of discretion. If the plaintiff was capable of exercising judgment and discretion and taking care of himself under the circumstances, it was not negligence for the watchman to run the engine.
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RAMSEY, J.
(after stating the case). Defendant contends that the plaintiff was either a bare licensee or trespasser; that he was of sufficient age to be charged, as a matter of law, with having assumed the risk incident to the dangerous position he occupied on the pilot step of the engine at the time the watchman moved the engine, and that, being a trespasser or licensee, it owed him no duty except that it should not wantonly or willfully injure him, and should exercise ordinary care not to injure him after discovering him in a perilous position. Defendant contends that the watchman’s conduct in permitting plaintiff to assist him and occupy the dangerous place on the pilot step of the engine was wholly unauthorized, beyond the scope of his authority, and consequently the proximate cause of plaintiff’s injury was either the unauthorized conduct of the watchman in permitting the boy to assist him, or the act of the plaintiff in falling off the engine; that it is admitted by plaintiff that the injury was not occasioned by any defect in the road-bed or machinery or method of operating the engine. ¡Defendant cites a number of cases, notably Daugherty v. Chicago, M. & St. P. R. Co. (Iowa) 14 L. R. A. (N. S.) 590, holding that the master is not liable for the unauthorized acts of his employe in permitting a child to occupy a dangerous position on the master’s vehicle or premises. See, also, Foster-Herbert Cut Stone Co. v. Pugh (Tenn.) 91 S. W. 199, 4 L. R. A. (N. S.) 804; Schulwitz v. Delta Lumber Co., 126 Mich. 559, 85 N. W. 1075; Mahler v. Stott, 129 Mich. 614, 89 N. W. 340; Formall v. Standard Oil Co. (Mich.) 86 N. W. 946; Curtis v. Tenino Stone Quarries, 37 Wash. 355, 79 Pac. 955; Buch v. Amory Mfg. Co., 69 N. H. 257, 76 Am. St. Rep. 163; Bowler v. O’Connell, 162 Mass. 319, 44 Am. St. Rep. 359; Flower v. Pennsylvania R. Co., 69 Pa. 210, 8 Am. Rep. 251; Keating v. Michigan Central R. Co. (Mich.) 37 Am. St. Rep. 328.
WRile sometimes difficult to distinguish a license from an invitation, it is clear from the record in this case that the plaintiff was neither a licensee nor invitee. A license implies permission or authority. The permission and authority amounting to a license must be either expressly or impliedly granted. A mere sufferance or failure to object to one’s presence upon another’s premises is not sufficient within itself to constitute a license, unless under such circumstances that permission should be inferred. Elliott on Railroads, vol. 3, sec. 1245. Neither sufferance, nor permission, nor passive acquiescence, is equivalent to an invitation. Elliott on Railroads, vol. 3, secs. 1154 and 1249. The permission of the night watchman for plaintiff to assist him and ride on the pilot step of the engine did not make plaintiff an invitee. The night watchman had no authority to invite the plaintiff to assist him or to permit him to occupy the place on the engine pilot step. That is clear. Forbrick v. General Electric Co., 92 N. Y. Supp. 36; Larmore v. Crown Point Iron Co., 101 N. Y. 291, 54 Am. Rep. 718; Beck v. Carter, 68 N. Y. 283, 23 Am. Rep. 175. The measure of the railroad’s dluty to an invitee is not involved in this case, and we will pass that by.. It is also clear that the plaintiff was not a licensee. Plaintiff had no permission from anyone having the slightest authority to grant him permission to be on or about the engine, and it is not shown that any authorized agent or servant of the defendant either expressly or impliedly permitted the plaintiff to be on or about the engine, and being there in violation of the rules of the company, he was not a licensee. Bouvier’s Law Dictionary (3d Ed.) vol. 2, p. 1974; Means v. Southern Calif. R. Co., 144 Cal. 473, 1 Ann. Cas. 206; A., T. & S. F. R. Co. v. Cogswell, 23 Okla. 181, 99 Pac. 923; Midland V. R. Co. v. Littlejohn, 44 Okla. 8, 143 Pac. 1; Brown v. Boston & M. R. Co. (N. H.) 64 Atl. 194; Norfolk
&
W. Ry. Co. v. Denney’s Admr., 106 Va. 383, 56 S. E. 321. Plaintiff was not upon the engine to transact any business between himself and defendant. He got on the engine on his own volition, uninvited, in violation of the rules of the company, and was a trespasser. But whether he was a trespasser or bare licensee makes no difference. If he was a mere licensee,
the defendant owed him no legal duty except not to wantonly or willfully injure him and to exercise ordinary care not to injure him when found in a perilous position. Plaintiff’s counsel contend that, although the watchman had no authority to permit the boy to ride on the engine, and 'although plaintiff may be treated as a trespasser, nevertheless, the defendant is responsible for the conduct of the watchman in moving the engine with the plaintiff standing on the pilot step; that no matter how the boy got on the engine, whether at the invitation of the watchman or on his own motion, the defendant owed him ‘the duty to exercise ordinary care not to injure him; that the watchman in moving the engine was acting in the line of his service and in the scope of his authority, and that when he discovered the boy on the pilot step of the engine, it then became the duty of the watchman to put the boy off, and that the failure to discharge that duty before moving the engine was the proximate cause of the boy’s injury. The law is well settled in this state that, although a trespasser is a wrongdoer, and the courts do not ordinarily aid a wrongdoer, nevertheless, the owner of the premises cannot justifiably, wantonly, willfully or maliciously mistreat or injure him; also that the owner of the premises is responsible for the failure to use ordinary care to avoid injuring the trespasser after discovering his perilous position. That rule is pretty well settled in this jurisdiction. Thorp v. St. Louis & S. F. R. Co., 73 Oklahoma, 176 Pac. 240; Atchison, T. & S. F. R. Co. v. Miles, 69 Oklahoma, 170 Pac. 896; Wilhelm v. M., O. &
G.
R. Co., 52 Okla 317, 152 Pac. 1088. In starting and running the engine, the watchman was undoubtedly within the scope of his duty; he was performing services for his master. No one would deny that it would have been the duty of the watchman to have endeavored to stop his engine before running into a trespasser discovered in a perilous position on the track. While he had the right to presume that the-track was clear, and was under no obligation to keep a lookout for trespassers, as held by this court in Atchison, T. & S. F. R. Co. v. Miles, supra, nevertheless, if he had discovered a trespasser in a perilous position on the track, it would have been his duty to exercise ordinary care to avoid doing him an injury. This brings the case down to the sole issue: Was it negligence on the part of the watchman to move the engine with the plaintiff standing on the pilot step? Now, the plaintiff was required to exercise care and caution, and when he voluntarily assumed that position on the pilot step, if he had capacity to understand the dangers, he assumed the concomitant and incidental perils of one riding on the pilot step of an engine operated under similar circumstances. There is a great number of decisions exonerating the railroad, or owner of the premises, from damages suffered by trespassing children who have reached the age of discretion. If the plaintiff was capable of exercising judgment and discretion and taking care of himself under the circumstances, it was not negligence for the watchman to run the engine. Some authorities, on the supposed analogy to the rule of the criminal law, hold that a child ■between the age of -seven and 14 years is presumptively incapable of exercising judgment and discretion, and that after he has attained the age of 14, the contrary presumption prevails, although the presumption may be rebutted in either case. Elliott on Railroads, vol. 3, sec. 1261. The pilot step of an engine, especially during switching, is used to stand on while the engine is in motion, and operating an engine with a competent person standing on the pilot step is neither negligence nor evidence of negligence. Of course, an engine within itself is a dangerous appliance. Though intimated by this court in Chicago, Rock Island & Pacific R. Co. v. Wright, 62 Okla. 133, 161 Pac. 1070, that the age of 14 marked the termination of presumptive incapacity to exercise proper judgment, and the beginning of such capacity, the question was not positively passed upon. No one will deny that if plaintiff had been two or three years old, it would have been negligence for the watchman to move the engine with him standing on the pilot 'step. Burk v. Ellis, 105 Tenn. 702, 58 S. W. 855. It would have been negligence for the watchman to move the engine with a very feeble and decrepit old person, incapable of taking care of himself, standing on the pilot step. As a matter of fact, a child ten years old may have more capacity to exercise ordinary intelligence and appreciate danger and take care of himself under such circumstances than another child 14 years old. We do not believe it can be universally presumed that persons at a definite age, say 14 years, pass suddenly from incapacity to full capacity and discretion. We do not think there is any foundation for such a presumption, and believe the better rule is that it is a question for the jury to determine, without regard to any arbitrary presumption, whether the particular person has capacity to understand the danger and ability to take care of himself under the circumstances. Whether or not a servant in charge of an engine exercised ordinary prudence in starting and running the engine with a person standing on the pilot step, and whether or not the person standing on the pilot step was guilty of contributory negligence, are questions for the jury. These ques
tions cannot be decided arbitrarily by the age of the person standing on the pilot step. As above suggested,- it would certainly be negligence to run an engine with a two or three year old child- or a very old, feeble, and decrepit person standing on the pilot step. The age, ability, and competency of -a trespasser are immaterial where the master’s servant discovers him in a position of peril from which he cannot apparently extricate himself or take care of himself under the circumstances. If the plaintiff, or any other person, had been discovered on the track in front of the engine in a position of peril from which he could not apparently extricate himself, or apparently probably could not extricate himself, then it would have been the duty of the defendant to exercise ordinary care to avoid running over him or injuring him. Arkansas & L. R. Co. v. Sain (Ark.) 119 S. W. 659.
The majority having reached the conclusion that whether the engineer was negligent or not in running his engine, knowing the plaintiff was on the running board, was a question of fact for the jury, they fully agree with counsel for the defendant that “The question in the case is simply this: Does the evidence furnish sufficient facts under the law to warrant a recovery?” Being thus convinced that it does, and that no other question is argued in this court, it follows that the judgment of the court below must be affirmed.
RAINEX, O. J., and KANE, PITOHEORD, JOHNSON, and McNEILL, JJ., concur; HARRISON, Y. O. J., dissenting.