COVINGTON &C. R., TRANSFER & BRIDGE Co. v. MULVEY'S ADM'R. (Court of Appeals of Kentucky, Nov. 4, 1909.) [122 S. W. Rep. 129.] Railroads Injury to Person Near Track-Coal Falling from CarNegligence. The probability that a boy, who with a few other boys plays on the private premises of a railroad company, adjoining its right of way, will be in a position to be struck by a lump of coal falling from a passing car is not so great as to impose on the company the duty of loading its cars with reference to his presence, or of inspecting its cars to see that he is not injured by falling coal; and there is no liability for injury so occurring, in the absence of wantonness and recklessness. Appeal from Circuit Court, Campbell County. "To be officially reported." Action by John Mulvey's Administrator against the Covington & Cincinnati Railroad, Transfer & Bridge Company. Judgment for plaintiff. Defendant appeals. Reversed and remanded. Galvin & Galvin, for appellant. Arthur C. Hall and J. A. Shackelford, for appellee. CLAY, C. John Mulvey, as administrator of John Mulvey, Jr., deceased, instituted this action against the Louisville & Nashville Railroad Company, the Chesapeake & Ohio Railway Company, and appellant, the Covington & Cincinnati Railroad, Transfer & Bridge Company, to recover damages for the death of his decedent. Upon the conclusion of the testimony the court gave a peremptory instruction in favor of the Louisville & Nashville Railroad Company and the Chesapeake & Ohio Railway Company. Judgment was entered in their favor, and from that judgment there is no appeal. The case as to appellant was submitted to the jury, which returned a verdict in favor of appellee for the sum of $2,500. From that judgment this appeal is prosecuted. The failure of the trial court to award it a peremptory instruction is the only ground for reversal urged by appellant. The facts are as follows: Appellant is the owner of a bridge which spans the Ohio river at Covington, Ky. It also owns and maintains railroad tracks running from Seventeenth street, *For the authorities in this series on the subject of the care due trespassing children, see International & G. N. R. Co. v. Vallejo (Tex.), 32 R. R. R. 102, 55 Am. & Eng. R. Cas., N. S., 102; last footnote of O'Bannion's Adm'r v. Southern Ry. (Ky.), 30 R. R. R. 416, 53 Am. & Eng. R. Cas., N. S., 416; first foot-note of Wheeling & L. E. R. Co. v. Harvey (Ohio), 29 R. R. R. 218, 52 Am. & Eng. R. Cas., N. S., Covington & C. R., Transfer & B. Co. v. Mulvey's Adm'r in Covington, through said city and over said bridge to points in Cincinnati, Ohio. It has locomotives which it uses for the purpose of transporting trains over the bridge and roads owned by it. At Fifth and Johnson streets in Covington, Ky., there is a vacant and uninclosed lot, which has a frontage of about 50 feet on the south side of Fifth street, and a depth of about 100 feet. This lot is bounded on the west by a stone wall or approach to said bridge, and on the east by an alley. The top of the wall is about 10 feet above its base or the level of the lot. There are two tracks on this wall; the east track being used by trains going north, and the west track by those going south. The lot in question is owned by appellant. In the summer time it has been used as a playground for children. At times they would gather up coal on the tracks and from cars, and make a fire on the lot. On December 11, 1907, about 7:30 o'clock p. m., and after dark, the decedent, John Mulvey, who was then about 12 years of age, in company with several other boys the same age, was playing on the lot referred to. Early in the day they had built a fire on the lot within a distance of 4 or 5 feet from the bridge wall. On the occasion of the accident they were sitting around the fire when they heard a train approaching from the south. This train consisted of about 20 cars, four of which were loaded with coal. As the engine approached, the boys all ran back 30 or 40 feet to escape the cinders and ashes from the engine. Shortly after the engine passed, young Mulvey ran back to the fire and took a seat thereby. In a short time one of his companions called the attention of the other boys to the fact that Mulvey was lying on the ground. About that time one of the boys saw a dark object rolling along the ground about three or four feet from young Mulvey's head. The witness who testified to this fact made a statement inconsistent with it, but on the trial of the case insisted that he had seen something rolling along the ground at the time Mulvey was injured. When their attention was called to young Mulvey, the boys rushed to his assistance. It was found that he had a wound in the top of his head. This wound contained particles of dirt. Mulvey's companions carried him to his home. It was found by the physician summoned to attend him, and by the coroner at the inquest, that young Mulvey's neck was broken. The lump of coal which it is claimed fell from the car, and which was seen rolling when young Mulvey was injured, was picked up by one of the boys, and later turned over to the coroner as evidence. There is also evidence to the effect that there was no other coal on the lot at the time of the injury. Some of the witnesses also testified that the coal in the coal cars was heaped up in the center of the cars. Appellant proved title to the lot, and also showed that the cars containing the coal were loaded at least 250 miles from the point where the accident occurred. In discussing this case we may admit that there is some evi Covington & C. R., Transfer & B. Co. v. Mulvey's Adm'r dence tending to show that young Mulvey was killed by being struck on the head by a lump of coal which fell from one of the cars as the train passed by. The doctrine of the Turntable Cases, of course, has no application to this case. This is not a case where a dangerous agency that was alluring and attractive to children was left in such position that they could and would use it. Nor is it a case where the premises were rendered unsafe by a spring gun or any trap that would injure a person if he came in contact with it. Appellee, however, insists that, as children had been playing upon the lot in question for a long time, with the knowledge or acquiesence of appellant, it was the duty of the latter to anticipate their presence, and so load its cars as not to injure any one of them. This court has gone to the extent of holding that where a railroad track runs through a populous community, along or across streets, where from the nature of things persons may be reasonably expected at any time, it is the duty of those in charge of the train to have it under reasonable control, to keep a lookout for persons using the track, and to give timely warning of the approach of the train. Illinois Central R. R. Co. v. Murphy's Adm'r, 123 Ky. 787, 97 S. W. 729, 30 Ky. Law Rep. 93, 11 L. R. A. (N. S.) 352. The reason for this rule is that the long and continued use of the track at the point in question by large numbers of persons is sufficient to indicate a reasonable certainty that persons will be found there. This rule has never been extended to cases where there was no customary use of the track at the point of the injury. The presence of persons on the track because of its customary use by the public being reasonably certain, there is a strong probability of some one's being injured unless proper precautions are taken to prevent accidents. The necessity for precaution is due to the fact that the very movement of a train is dangerous, and likely, to injure those caught unawares. But the probability that a boy, who with a few other boys plays upon the private premises of a railroad company, adjoining its right of way, will be in position to be struck by a lump of coal falling from a passing car is not so great as to impose upon the company the duty of loading its cars with reference to his presence, or of inspecting its cars to see that he is not injured by falling coal. Under such circumstances there is no liability, unless the injury is wanton or reckless. There is no evidence in this case to show either one of these prerequisites to a recovery. The death of the decedent was simply the result of an unfortunate accident, which could not have been reasonably anticipated by appellant. We, therefore, conclude that the court erred in failing to give a peremptory instruction in favor of appellant. Judgment reversed, and cause remanded for proceedings consistent with this opinion. ARROW LUMBER & SHINGLE Co. v. UNION PAC. R. Co. (Supreme Court of Washington, June 22, 1909.) Railroads Foreign Corporations Service of Process-Agents.*The mere fact that a person was known and advertised as the “general agent" of a foreign railroad company did not make him an agent of the company upon whom process might be served within Ballinger's Ann. Codes & St. § 4875 (Pierce's Code, §§ 332, 333), where the company had no interest in the office in which he was, or control over it, and his salary was paid by other companies, and all freight and passenger contracts issued by them. Railroads Foreign Corporations Service of Process Agents.*The fact that a person solicited freight and passenger business, routing it over the connecting line of a foreign railroad company, as he did over all other lines connecting with the companies by whom he was employed, did not make him an agent of the former company on whom process might be served within Ballinger's Ann. Codes & St. § 4875 (Pierce's Code, §§ 332, 333), where all contracts were issued as the contracts of one or the other of the latter companies to whom he alone reported, and they, in turn, arranged the division of the charges made with the connecting lines upon an agreed basis. Appeal from Superior Court, King County; Mitchell Gilliam, Judge. Action by the Arrow Lumber & Shingle Company against the Union Pacific Railroad Company. From an order quashing the service of summons, plaintiff appeals. Affirmed. Douglas, Lane & Douglas, for appellant. W. W. Cotton, Arthur C. Spencer, and John P. Hartman, for respondent. MORRIS, J. The plaintiff below brought this action to recover damages for the improper storage of lumber at Lincoln, Neb. Service was made upon E. E. Ellis at Seattle. The defendant moved to quash the service upon the grounds (1) that the summons was not served upon any agent of the defendant company within the state of Washington; (2) that Ellis was not an agent of defendant; (3) that defendant was a foreign corporation, not doing business within the state of Washington, nor had it com *For the authorities in this series on the questions, where actions against railroad companies may be brought, and upon whom, in such actions summons may be served, see last foot-note of Slaughter v. Canadian Pac. Ry. Co. (Minn.), 33 R. R. R. 79, 56 Am. & Eng. R. Cas., N. S., 79; second foot-note of Dunn v. Meek (U. S.), 31 R. R. R. 532, 54 Am. & Eng. R. Cas., N. S., 532. Arrow Lumber & Shingle Co. v. Union Pac. R. Co plied with the laws of this state governing foreign corporations doing business within this state. Issue being joined upon this motion, a large number of affidavits were presented to the court, resulting in the sustaining of the motion, from which ruling plaintiff appeals. The salient facts shown by the affidavits are that Ellis is in charge of an office at Seattle, from which advertising matter of the respondent is distributed, and freight and passenger business solicited. Upon the door of this office is the following: "Union Ticket Office, E. E. Ellis, Gen. Agt." And upon the window appears the advertising design of the respondent, a shield in red, white, and blue, with the words: "Union Pacific, the Overland Route." Underneath this shield appears the following: "Oregon Railroad & Navigation Co.; Oregon Short Line R. R.; Union Pacific R. R.; Southern Pacific Co." And below are the words: "Freight and Ticket Office." Ellis also uses stationary bearing the names of the above companies, with "E. E. Ellis, General Agent," printed thereon. Several officers of the above-named railway companies made affidavits showing that Ellis was the agent of the Oregon Railroad & Navigation Company and Southern Pacific Company; that respondent company had no interest in the Seattle office or any control over it; that Ellis' salary was paid in whole by the Oregon Railroad & Navigation Company and Southern Pacific; that all freight contracts and tickets were issued by the Oregon Railroad & Navigation Company or Southern Pacific; that no contracts were made on behalf of respondent company; that the tickets sold contained coupons reading over any road east and frequently over the Union Pacific, but that all money collected for tickets was remitted to either the Oregon Railroad & Navigation Company or the Southern Pacific; that respondent was a Utah corporation, neither owning nor operating any railway line within the state of Washington; that Ellis quoted freight and passenger rates and routings over respondent's line as well as other lines connecting with the Oregon Railroad & Navigation Company and the Southern Pacific. The statute under which the service was made is as follows: "The summons shall be served by delivering a copy thereof *** (4) If against a railroad corporation, to any station, freight, ticket, or other agent thereof within this state; *** (9) If the suit be against a foreign corporation or non-resident jointstock company or association doing business within this state, to any agent, cashier, or secretary thereof. * * *"" Ballinger's Ann. Codes & St. § 4875 (Pierce's Code, §§ 332, 333). A like question was determined by this court in Rich v. C., B. & Q. R. Co., 34 Wash. 14, 74 Pac. 1008. That case is determinative of this, and we care to add but little to what was there said. The mere fact that Ellis was known and advertised as "General Agent" of the respondent is of no value to appellant, since it is |