of driving them, so that there was nothing done to encourage the trespass, which was merely the result of a momentary impulse. Ordinarily, a man who is using his property in a public place is not obliged to employ a special guard to protect it from the intrusion of children, merely because an intruding child may be injured by it. We have all seen a boy climb up behind a chaise or other vehicle for the purpose of stealing a ride, sometimes incurring a good deal of risk. It has never been supposed that it is the duty of the owner of such vehicle to keep an outrider on purpose to drive such boys away, and that, if he does not, he is liable to any boy who is injured while thus secretly stealing a ride. In such a case no duty of care is incurred." And after discussing a number of cases, like those of 126 Mass. 377, supra, and 88 Pa. St. 520, infra, etc., said: "These are all cases of injury to intrusive or trespassing children, in which the defendants were held to be exempt from liability, although they might have prevented the injury, because the kind of care which would have been required to prevent it was not obligatory upon them." See, also, McAlpin v. Powell, 55 How. Pr. 163; Railway Co. v. Connell, 88 Pa. St. 520; Snyder v. Railroad Co., 60 Mo. 413. In Emerson v. Peteler, 35 Minn. 481, 29 N. W. 311, the distinction is drawn between Keffe v. Railway Co., 21 Minn. 207, a turntable case, and the former case, where the injury occurred to a child five years old, who was killed while riding, unknown to the contractor or his employés, on cars loaded with earth used in making a fill. The boy who was killed, and his sister considerably older, had been particularly warned not to ride on or go about the cars, and the employés of the contractor had been told not to allow children to ride on the cars. Commenting on these things, Vanderburgh, J., said: "We discover no evidence in the case tending to prove negligence on the part of the defendant in conducting this work. Defendant's management, and all the arrangements for moving these cars, were reasonably safe as respects danger to persons using ordinary care. This was the measure of defendant's duty. * * Where there is no negligence, the incapacity of a child who happens to be injured cannot create liability. Kay V. Railroad Co., 65 Pa. St. 269, 276. The burden rested on the plaintiff to establish defendant's negligence, and it is not claimed that there was any, unless the failure to employ sufficient help to watch and keep children away was such. But the duty which defendant owed these children was not to keep constant watch, or to use ordinary care to prevent their approach, but, when discovered in the exercise of ordinary care, to use proper diligence to prevent any injury to them." In McEachern v. Railroad Co., 150 Mass. 515, 23 N. E. 231, it was ruled that a railroad corporation is not liable to a

*

boy who, without any invitation or enticement, trespasses upon its land, and uses it for a playground, and is injured by meddling with a defective car standing upon one of its tracks. In Railway Co. v. Henigh, 23 Kan. 347, a flat car was placed on a switch track where the grade was 80 feet to the mile. The brake was set. A boy four years and eight months old went to the car, climbed up thereon, and managed to loose the brake, when the car ran down the incline, and the boy fell off or jumped off, and was run over and killed, and held the company was not liable, and that the car was not a dangerous machine. See, also, Railroad Co. v. Stumps, 69 Ill. 409, and Curley v. Railway Co., 98 Mo. 17, 10. S. W. 593. In Rushenberg v. Railway Co., 109 Mo. 112, 19 S. W. 216, it was expressly ruled that the "turntable" doctrine did not apply to a train of cars. Indeed, it may be said that the doctrine of the "Turntable Cases" has been very strongly criticized in the states of New York, New Hampshire, and Massachusetts. Daniels v. Railroad Co. (Mass.) 28 N. E. 283; Frost v. Railway Co., 64 N. H. 220, 9 Atl. 790. But, even if that doctrine were applicable to railroad cars when at a standstill, it could not apply here; because here the cars were in motion, fully equipped with the requisite number of hands, while the theory of the Stout case is that the negligence consists in leaving the dangerous machine, implement, etc., exposed, unlocked, and unguarded.

2. It is claimed that it was the duty of the defendant company to fence its yards. While cases may be found requiring the performance of such a duty when it is imposed by special statutory provision, yet no case has been encountered where, in the absence of such stat utory provision, it has been adjudicated that the duty of fencing exists; because the common law recognizes no such obligation, and railroad corporations stand in this regard on the same footing as individuals. Railroad Co. v. Carraher, 47 Ill. 333; Hughes v. Railroad Co., 66 Mo. 325; Hayes v. Railroad Co., 111 U. S. 228, 4 Sup. Ct. 369. It is well settled in this state that railroad companies are not required to fence their tracks in cities and towns, notwithstanding the statute makes no exceptions as to the general requirement regarding such fencing; and this ruling was made on the ground of necessity. By parity of reasoning, it would seem that it would be impossible, consistent with the demands of commerce, to have railroad yards in a large city or town actually "fenced in." Of course the object of such inclosure, to wit, the keeping out of trespassers from such yards, espe Icially children, could not be accomplished without having gates at every opening (and not the ordinary bar), in order to make the fence effectual for the purpose for which it was designed. It is only necessary to think for a moment of the utter impracticability of such a measure, where hundreds of cars would

be passing and repassing through the gates every hour, thus requiring their continuous opening and closing, in order to repudiate the visionary idea advanced altogether. But if a railroad car or train is not to be regarded as a dangerous machine, as has been decided, then no necessity exists to place a barrier to prevent trespassers on the private yards of a railroad company from being injured. To such trespassers, no matter what their age, the railroad company, not having invited or encouraged their coming, owes no duty except that of not wantonly or recklessly injuring them after having discovered them to be in peril. Williams v. Railroad Co., 96 Mo. 283, 9 S. W. 573; Hepfel v. Railroad (Minn.) 51 N. W. 1049; Cauley v. Railroad Co., 95 Pa. St. 39. Even as to a licensee, the rule is that "no duty is imposed by law upon the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not either expressly invited to enter or induced to come upon them by the purposes for which the premises are appropriated, or by some adaptation of the place for use by customers or passengers which might naturally and reasonably lead them to suppose that they might properly and safely enter." Straub v. Soderer, 53 Mo. 43. In short, mere passive acquiescence of the occupier, in a certain use of his land by others, generates no liability on his part. Moore v. Railroad Co., 84 Mo. 485. And the same principle, which, under the authorities cited, would deny the necessity for guards to keep trespassing children from boarding moving cars, would equally reject the necessity of barriers when demanded in place of such guards. There are cases where fences are needed, and where liability arises where injury occurs in consequence of their not being built; but that is only where as, for instance, the owner's premises extend up to the public highway, and a dangerous excavation exists in close proximity to such thoroughfare. But in such case such excavation would amount to a common nuisance, something which would hardly be affirmed of a railroad company when engaged in its legitimate labors and ordinary avocation of assisting in moving with its numerous trains of cars the commerce of the country. In Overholt v. Vieths, 93 Mo. 422, 6 S. W. 74, an abandoned quarry, but not bordering on the highway, became a pond in which the eight year old son of a party was drowned; and it was ruled that the owner of the quarry was under no obligation to build a fence around it to keep away trespassers, nor liable for injury to them occasioned by the absence of such fence. In that case approving quotation is made from Gillespie v. McGowan, 100 Pa. St. 144, where a boy of less than eight years of age was drowned in a well open and uncovered and unguarded, and on an unfenced lot, a place of common resort for children; and it was held that the boy was a trespasser; that the owner of the lot was under

v.28s.w.no.10-68

no duty to him to fence the lot or guard the well; and that of consequence no recovery could be had; Paxson, J., very pertinently remarking: "There are streams and pools of water where children may be drowned; there are inequalities of surface where they may be injured. To compel the owners of such property either to inclose it, or fill up their ponds and level the surface so that trespassers may not be injured, would be an oppressive rule. The law does not require us to enforce any such principle, even where the trespassers are children. We all know that boys of eight years of age indulge in athletic sports. They fish, shoot, swim, and climb trees. All of these amusements are attended with danger, and accidents frequently occur. It is part of a boy's nature to trespass, especially where there is tempting fruit, yet I never heard that it was the duty of the owner of a fruit tree to cut it down because a boy trespasser may possibly fall from its branches. Yet the principle contended for by the plaintiff would bring us to this absurdity, if carried to its logical conclusion. Moreover, it would charge the duty of the protection of children upon every member of the community except their parents." Citation has been made by plaintiff to Schmidt v. Distilling Co., 90 Mo. 284. There a child three years old fell into a pool of hot water, and was scalded. to death; the pool being formed by the escape of steam and water used in defendant's business, and was only some 18 inches wide and some 15 inches deep. This pool was at a distance from the public road, and on the private grounds of defendant; and it was held, in effect, that, if the little hole of hot water and mud was "attractive to children," it then should have been inclosed, and, if not inclosed, being thus attractive, etc., defendant would not be "properly exercising its dominion over its own property." Contrasting the Overholt and the Schmidt Cases, it would seem that the chief difference between them consisted in the temperature of the water where the respective accidents occurred. Unless they can be reconciled and differentiated on this theory, and on the further theory that a little muddy puddle of hot water that a child might step over is more attractive to a child than a deep pond of cold water, then they are utterly irreconcilable. This being so, we shall follow the ruling of the later case. As to Fink's Case, 10 Mo. App. 61, it was expressly overruled on appeal to this court. 82 Mo. 276.

3. If it be true, as shown by the authorities, that plaintiff was a trespasser, to whom defendant owed no duty except that of not wantonly or recklessly injuring him, after dis covering his peril, then, of course, no duty existed outside of that exception between the defendant corporation and the plaintiff; and if no duty, then no negligence, because the latter must have the former as its inevitable and indispensable predicate. Halliban Railroad Co., 71 Mo. 113.

4. But plaintiff in the particular act which resulted in the accident was a trespasser, made so by the statute as well as by the ordinance of St. Joseph. Section 3927, Rev. St. 1889, makes it a misdemeanor for "any person, minor or adult, to climb upon, hold to, or in any manner attach himself to, any locomotive engine or car while the same is in motion, or running into any or through any city or town in this state." The ordinance is of similar import. Plaintiff, being a trespasser, a violator of law,-could have no ground of recovery based on his own dereliction. But it is claimed for plaintiff that these regulations of the law do not apply to "babies." While the law may not apply in a criminal proceeding to a child of very tender years, yet still, for the purposes of a civil action, the consequences of the unlawful act must be the same in the case of an infant, even of very tender years, as in the case of an adult. In a word, the act of the infant, in consequence of his tender years, is, though noncriminal, yet wrongiul in the sense of being an invasion of the rights of another, just as much so as though done by an adult; and a landowner is under no duty to a mere trespasser to keep his premises safe, and the fact that the trespasser is an infant does not raise a duty where none otherwise exists. Frost v. Railroad Co., 64 N. H. 220, 9 Atl. 790, and cases cited.

5. But plaintiff's counsel says that defendant assumed the duty of keeping its yards clear of boys, by giving instructions to its yard hands, etc.; but that this duty was neglected, and therefore a cause of action arises alone from this neglect. But if the prior duty did not exist to keep the boys out the yards, then the mere assumption of a non-existent duty would be but a gratuity, with no precedent or concurrent consideration on which to base it, and therefore no liability would follow such assumed and pretermitted duty. Mere pretermission of a self-imposed precaution does not constitute actionable negligence. Skelton v. Railway Co., L. R. 2 C. P. 636; Camp. Neg. (2d Ed.) § 41. In conclusion, we hold that the trial court committed error of law in denying defendant's instruction in the nature of a demurrer to the evidence, and therefore properly granted a new trial. For these reasons, judgment affirmed. All con

sons, the latter cannot sue on the agreement as it is not made for their benefit.

3. Railroad companies, in providing for the joint operation of their lines, entered into an agreement whereby one agreed to save the other harmless from all its obligations, and in the same clause agreed "to pay and surrender the same, canceled," as fast as they were obtained. Held, that this was only an agreement by one to "save harmless" the other, and hence the creditors of the latter could not sue there

on.

Appeal from St. Louis circuit court; James E. Withrow, Judge.

Action by the state of Missouri against the St. Louis & San Francisco Railway Company. There was a judgment for defendant, and plaintiff appeals. Affirmed.

R. F. Walker and Jas. O. Broadhead, for appellant. E. D. Kenna, Lee & McKeighan, and L. F. Parker, for respondent.

BLACK, C. J. The state of Missouri brought this action at law against the St. Louis & San Francisco Railway Company to recover $300,000, and the interest thereon. The state's cause of action is founded on a bond dated the 10th June, 1868, whereby the South Pacific Railroad Company agreed to pay to the state the above-named amount in three equal annual installments, falling due on the 1st days of June, 1874, 1875, and 1876. The claim of the state is that this bond became the debt of the Atlantic & Pacific Railroad Company because of an agreement on the part of the last-named company to pay the debts of the South Pacific Railroad Company, and that the defendant became liable to the state because of its agreement to pay the debts of the Atlantic & Pacific Railroad Company. The principal defenses are: First, that the state never had any cause of action against the Atlantic & Pacific Railroad Company; second, that it has no cause of action against the defendant company; third, that the South Pacific Railroad Company, and through it the Atlantic & Pacific Railroad Company, holds a counterclaim against the state in excess of the state's demand; and, fourth, that the state's demand is barred by lapse of time, this suit having been commenced on the 30th January, 1890. In view of the amount involved, we state the facts disclosed by the record with some detail:

By the act of December 25, 1852, the Pacific Railroad was required to apply lands granted to the state by the act of congress of June 10, 1852, to the construction of a part of its main line, and the remainder to the construction of the Southwest Branch, which began at Franklin, near St. Louis, on the main line, and extended west to Springfield, and thence west to the west line of the state. The state from time to time guarantied bonds and issued its own bonds to aid in the construction of this branch road, amounting to over $4,000,000. For its own protection, the state reserved a first lien on

the branch road, its franchises, and all of its lands. The Pacific Railroad made default in the payment of the interest on these state-aid bonds, and thereupon the legislature passed the act entitled "An act to provide for the sale of certain railroads and property by the governor, to foreclose the state's lien thereon, and to secure the early comple tion of the Southwest Branch Pacific, the Platte County, the St. Louis Iron Mountain and the Cairo and Fulron Railroads of Missouri," which act was approved on February 19, 1866. Pursuant to this act, Gov. Fletcher took possession of the Southwest Branch of the Pacific Railroad, and all the property thereto belonging, including the before-mentioned lands, set apart to be sold, and the proceeds used in the construction of the branch road. He at the same time appointed three commissioners to operate the road, and to sell it as provided in said act. The commissioners advertised the road for sale, but the bids made thereunder were rejected on the 9th May, 1866. On the next day the governor directed the commissioners to sell the road at private sale, pursuant to the seventh section of the act. On the same day, John C. Fremont made a written bid, which was accepted, and the bid approved by the governor. A formal contract was executed, setting forth the terms of the bid or written proposition. The principal features of the contract are that Fremont was to pay the state, for the road, its franchises, and the aid lands, the sum of $1,300,000,-one-fourth cash on delivery of a deed, and the balance in four equal annual installments,-and he was to complete the road within a stated time. The written bid or proposal contains the following stipulations, which are also set forth in the formal contract: "That this purchase shall be made subject to the conditions of forfeiture enumerated in the fourteenth section of the act of February 19, 1866, and that Fremont and his associates shall have the right to borrow money for the completion of the road, and to secure the same by mortgage or deeds of trust or pledge of the finished and unfinished portions of the road and appurtenances, and lands acquired by said purchase, without being subject, in relation to such loans, bonds, mortgages, and pledges. to any conditions or restrictions cnumerated in the tenth section of said act." On the 14th June, 1866, the state executed to Fremont a deed, and he at the same time paid the state the one-fourth of the $1,300,000, and executed to the state a mortgage on all the property so conveyed to him to secure the deferred payments, and also to secure the performance of the other provisions of the contract. The mortgage provides for a public sale in case of default, but it must be remembered also that the fourteenth section of the act of February 19, 1866, concerning a forfeiture in case of default, was made a part and parcel of the contract secured by the mortgage. At the date of the transac

The

tions last recited, the road had been completed from Franklin to Rolla, in Phelps county. Fremont and his associates organized a corporation under the name of the Southwest Pacific Railroad, and he conveyed all the property which he had acquired from the state to that company, subject to the mortgage given by him to the state. On the 15th September, 1866, the Southwest Pacific Railroad Company executed a mortgage to Yelverton and Ward to secure a proposed issue of $7,500,000 of bonds. About $2,300,000 of these bonds were issued, and either sold or pledged. Fremont and his corporation extended the road to the Gasconade river, a distance of about 12 miles, and built a bridge over that river. He and his company failed to pay the first deferred installment of the purchase money due the state, and otherwise failed to comply with the terms of his contract. Because of such default, Gov. Fletcher took possession of the road on the 21st June, 1867, and appointed Clinton B. Fisk agent of the state to operate the same. legislature then passed an act entitled "An act to dispose of the Southwest Pacific Railroad, and other property belonging thereto, and to secure the early completion of said road," which act was approved on the 17th March, 1868. By the terms of this act the legislature made a declaration that the property sold to Fremont had been "forfeited to, and the title vested in, the state of Missouri," and that the state resumed the forfeited railroad, franchises, and property, "discharged and free from all lien's, obligations, and incumbrances placed on the same by said Fremont, his associates, or assigns." The second section provides "that the said railroad, its franchises and all other property hereinbefore described, be and the same is hereby granted to A. C. Kingsland * * their associates and assigns, in fee simple, upon the conditions and reservations hereinafter mentioned, in trust for the company, hereinafter provided for." This act provides that Kingsland and others shall organize a new company, to be known as the South Pacific Railroad Company; that the new company shall complete the road within a given time, and to that end was required to deposit $1,500,000, to be paid out as the work progressed. Authority was given to it to borrow $7,250,000, and to secure the same on the road and other property so acquired from the state. The seventeenth section provides: "The South Pacific Railroad Company shall pay to the state of Missouri the sum of $300,000, $100,000 to be paid on or before the first day of June, 1874, and the sum of $100,000 on or before the first day of June, 1875, and $100,000 on or before the first day of June, 1876, which shall be in addition to the other conditions imposed by this act, and which sum shall be secured to be paid to the state of Missouri by the bond of said company, with approved security, and which bond shall be given before said company takes possession

of said road." The new company was duly organized, and it gave the bond mentioned in the section just quoted, with two sureties. The governor approved the bond, though it appears the sureties were mere straw men, and financially worthless. This is the bond upon which the state founds this action.

After the South Pacific Railroad Company had been organized, and after it had accepted the act last mentioned, it took up and retired the larger portion of the $2,300,000 of issued Yelverton and Ward bonds, at a cost to it of about $436,000. This was done by the aid and assistance of the Atlantic & Pacific Railroad Company, a corporation created by an act of congress in 1866, with power to construct a railroad and telegraph line from Springfield, in this state, to the west line of the state, and thence west to Albuquerque, N. M., and thence west to the Pa cific Ocean. In 1871 the South Pacific Railroad Company presented to the legislature of this state a claim for the amount paid out, as before stated, in taking up the issued Yelverton and Ward bonds, and at the same time offered to surrender the claim, as satisfied, if the state would release it from the payment of the $300,000 bond. A bill was introduced to that effect, but the legislature adjourned before any action was taken on it. A like bill had failed to pass at a previous session. This is the claim set up in the an swer as a counterclaim. On the 25th October, 1870, the South Pacific Railroad Company executed a deed to the Atlantic & Pacific Railroad Company. This deed, it will be seen, bears date prior to the maturity of any of the installments payable to the state by the terms of the $300,000 bond. fesses to be made pursuant to a prior agreement between the South Pacific Company and the Atlantic & Pacific Company, and by authority of the act of 24th March 1870, amendatory of the general railroad law. The consideration expressed is 78,810 shares of preferred stock and 31,087 shares of common stock of the Atlantic & Pacific Railroad Company, to be turned over to the shareholders of the South Pacific Company. It uses the usual words of grant, and conveys all the property, real and personal, including the aid lands, to the Atlantic & Pacific Company, subject to the following agreements, that is to say: "First. That the Atlantic and Pacific Railroad Company shall, and it hereby does, assume the payment of the principal and interest of the bonds, amounting to $7.250,000, secured by the aforesaid mortgage for that amount upon the property of the South Pacific Railroad Company, and also the payment of all other debts and the fulfillment of all other obligations of the said South Pacific Railroad Company, and shall save harmless, indemnify and protect the said South Pacific Railroad Company and the present stockholders of, or parties beneficially interested as such in, that company, from all claim or demand for or by reason

It pro

of such bonds and mortgage, or other debts or obligations. Second. That said Atlantic and Pacific Company shall also observe, perform, and fulfill all of the conditions of the charter of the South Pacific Railroad Company, and all laws and regulations of the state of Missouri, to which the last-mentioned company is or shall be subject, and shall do all acts and things whatsoever incumbent upon the last-mentioned company to do under such charter and such laws and regulations." This deed was signed by the At lantic & Pacific Company as well as by the South Pacific Company. The stockholders of the South Pacific Company gave their consent to this transaction. The state insists, it may be stated here, that by this deed the Atlantic & Pacific Company assumed and agreed to pay the $300,000 bond given to it by the South Pacific Company.

The Atlantic & Pacific Company completed the road to the west line of the state, and from there west to Vinita, in the Indian Territory, a point about 50 miles west of the western boundary of this state. The money used to complete the road to the state line was the deposit of $1,500,000 made by the South Pacific Company, and bonds issued by that company to the amount of $7,250,000, authorized by the act of 17th March, 1868, and by the sale of other bonds issued by theAtlantic & Pacific Railroad Company, and secured by second and subsequent mortgages. The Atlantic & Pacific Company made default in the payment of interest, and thereupon one of the holders of bonds brought suit to foreclose some of the second mortgages, in the circuit court of the United States. Such proceedings were had that all of that part of the road in this state was sold to William F. Buckley, who purchased the same, subject to the first or $7.250,000 mortgage, for and in the interest of bondholders. He at once, in 1876, conveyed the property so purchased to the defendant, the St. Louis & San Francisco Railway Company, a corporation then organized under the laws of this. state.

The agreement upon which the state seeks to hold the defendant for the payment of the $300,000 bonds is the tripartite agreement, dated the 31st day of January, 1880, entered into between the defendant, the St. Louis & San Francisco Railway Company, party of the first part, the Atlantic and Pacific Railroad Company, party of the second part, and the Atchison, Topeka & Santa Fé Railroad Company, party of the third part. This agreement sets forth by way of recitals these facts: That the San FranciscoCompany owns and operates a line of road from St. Louis to the western line of the state, and a branch from Pierce City, westwardly, intended to reach Wichita, in the state of Kansas; that the Atlantic & Pacific Company owns the 50 miles of road in the Indian Territory operated by the San Francisco Company, and the franchise to.