ning at a lawful rate of speed. At all events, a new trial ought not to be granted on account of newly discovered evidence of mere impeachment. Bunn v. Hoyt, 3 Johns (N. Y.), 255: Shumway . Fowler, 4 Johns (N. Y.), 425; Harrington v. Biglow, 2 Denio (N. Y.), 109; Delaney v. Brunnette, 62 Wis. 615; Schacherl v. St. Paul City R. Co. (Minn.), 43 N. W. Rep. 837; Jones v. Chicago, M. & St. P. R. Co., Id. 1114. There was no abuse of the discretion of the court in refusing to grant a new trial for such cause. Smith v. Champagne, 72 Wis. 480.

tody of child.

The court was requested by the defendant's counsel to instruct the jury, and did so instruct them, and repeated it several times, that if Mrs. Dacey was guilty of a slight Negligence of want of ordinary care, in going on the bridge with person in cus- the children, under the circumstances, and that it contributed to or was the proximate cause of, the death of the child Catharine, they should find for the defendant. The learned counsel of the plaintiff excepted to this instruction, and now asks this court to decide, in support of the judgment, that such instruction was erroneous. He contends that the negligence of the temporary custodian of the child ought not to be imputed to the child herself or to the plaintiff. This court has not yet decided that question. It has frequently held, however, that in such a case, where the child is so young as to be non sui juris, it is a material question whether the parent was or was not negligent in committing the child to such temporary custodian, and whether such custodian was of proper age and discretion to suitably care for it. There has been no occasion to go further, and decide the above question. Hoppe v. Chicago, M. & St. P. R. Co., 61 Wis. 357, 19 Am. & Eng. R. Cas. 74; Dahl v. Milwaukee City R. Co., 62 Wis. 652, 19 Am. & Eng. R. Cas. 121; Parish v. Eden, 62 Wis. 272.

The jury considered the question of the negligence of Mrs. Dacey understandingly and fully, as it had been so often impressed upon them by the court, and must have found that she was guilty of no want of ordinary care that contributed to the death of the child. That was a question peculiarly within their province to decide, and their decision of it should be conclusive and a finality if the evidence was not such as to show that she was negligent beyond all question. Randall v. Northwestern Teleg. Co., 54 Wis. 140; McNam. ara v. Clintonville, 62 Wis. 207; Hill v. Fond du Lac, 56 Wis. 246; Kaples v. Orth, 61 Wis. 531; Ferguson v. Wisconsin Cent. R. Co., 63 Wis. 145, 19 Am. & Eng. R. Cas. 285. We cannot say from the evidence that Mrs. Dacey was guilty of any want of ordinary care in going upon the bridge with the

children. She had lived near the railroad for several years but she might not have remembered at what time the train was due, or she may have thought it had already gone by. What were the reasons that actuated her, if she had any beyond merely entertaining the children, we cannot know. If her negligence is to affect the rights of the plaiutiff, it should certainly be very clearly proved. We think the jury were warranted in finding that she was not guilty of any want of ordinary care that contributed to the accident. It is therefore unnecessary to decide that she could not be chargeable with negligence in taking care of the child, even to support the judgment. The question is therefore hardly before us, or in such way as to be proper to decide it. The courts of the different states are in irreconcilable conflict on the question, so that our decision of it will have to depend upon which side is the better reason, rather than upon the weight of authority. It is a question of considerable importance, and we will defer the decision of it until it becomes material in the case. The instructions of the court to the jury were very favorable to the appellant. They embrace all that ought to have been given of those that were requested. The circuit court committed no error of law that ought to reverse the judgment. The judgment of the circuit court is affirmed.

Injuries to Licensees using Track.-See Memphis & C. R. Co. v. Womack (Ala.), 37 Am. & Eng. R. Cas. 308; St. Louis, A. & T. R. Co. v. Crosnoe (Tex.), 37 Id. 313, note 319; South & North Ala. R. Co. v. Donovan (Ala.), 36 Id. 151; Troy v. Cape Fear & Y. V. R. Co. (N. Car.), 34 Id. 13, note 20; Virginia Midland R. Co. v. White's Adm'r (Va.), 34 Id. 22.

Habitual use of Bridge by Foot Travelers-Instructions-Knowledge of Engineer Excessive Speed.-Plaintiff's intestate was killed while walking upon a railroad bridge within a city. A city ordinance was put in evidence which limited the speed of trains within the city to 5 miles an hour, and the court instructed the jury that, taking the facts and evidence to be true, and if the train of the defendant was run at such a rate of speed that the engineer could not control it, and if he knew that people were in the habit of crossing the bridge from day to day, such facts, in connection with the ordinance, constituted negligence. Held, that the instruction was erroneous in so far as it assumed that there was testimony tending to show that the train was running so rapidly that the engineer could not control it, and that the engineer knew that people were in the habit of crossing daily over the bridge, and also in so far as it confined the attention of the jury to the proof of these facts as establishing the defendant's negligence. Southerland v. Wilmington & W. R. Co., N. Car. Sup. Ct., March 31, 1890.

Person Walking on Track-Injury by Substance Thrown from TrainSufficiency of Evidence. The plaintiff in an action was injured while walking on a railroad track which had been used for over 20 years as a pathway between two towns. While so walking he heard a coming train, and stepped off the track, placing himself on an embankment some 8 or 9 feet from the track. Just as the engine and tender, which constituted the train, passed him, he saw the shadow of something in the air and was felled to the ground. The accident happened about noon. In the afternoon

plaintiff returned to the place of the accident, and there found a piece of wood similar to that used for firing up locomotives on the defendant's road, and supposed it was the piece which struck him. It was imbedded in the bank where he was standing. Plaintiff's witnesses testified that the train was running at an unusual speed-according to some, at the rate of 60 miles an hour. Held, that as there was no contractual relation between the plaintiff and the defendant, there was no presumption of negligence against the defendant, and the evidence was insufficient to show that the plaintiff was injured by the piece of wood, or that it came from the locomotive or tender, the plaintiff could not recover. Lucas v. Richmond & D. R. Co., 40 Fed. Rep. 566.

Injuries to Boy on Freight Car-Evidence-Signals-Existence of FenceCustom of People to Cross Switch. Where the plaintiff, a boy 11 years of age, sues to recover damages for injuries sustained by being thrown from a freight car upon which he had climbed, and which stood upon a sidetrack, evidence showing that there was no railing between the depot or the ground bordering on the side-track and the side-track itself, and that persons were in the habit of crossing the switch, and that no bell was rung or whistle blown by those in charge of a train in coupling it to the car is ir relevant, as it does not tend to throw any light on the negligence of the boy in being on the car, or the negligence, if any, of the employes causing his death, or that the latter had any knowledge of his presence. Louisville & N. R. Co. v. Hurt, Ky. Ct. App., March 18, 1890.

Evidence Admissibility of Declarations of Engineer at Coroner's Inquest.— Where the plaintiff sues to recover damages for the death of his intestate who was run over by one of defendant's trains, it cannot be shown on the part of the plaintiff by another witness what defendant's engineer, who was in charge of the engine when plaintiff's intestate was killed, said when examined as a witness at the coroner's inquest held the day after the accident, and an error in the admission of such testimony is not cured by the admission of the engineer on cross-examination that he made the statement at the inquest which had been testified to by the plaintiff's witnesses, such testimony being admissible only, if at all, for the purpose of impeaching the credibility of the engineer, and not as substantive evidence to show that the engineer was negligent in failing to keep a lookout to ascertain whether the track was free from obstructions. Southerland v. Wilmington & W. R. Co., N. Car. Sup. Ct., March 31, 1890.

Injuries to Trespasser-Expression of Opinion of Witness. Where a witness testifies that the deceased, who was run over by a train, got off the track a distance of about 4 feet before the engine came along; that “the suction or force of the train drew him back and he fell in front of the engine," and also that the deceased got off the track as far as he could before the train sucked him under, the statements that the deceased was drawn in front of the train by the suction are properly struck out, being merely the expression of the witness's opinion. Sherfey v. Evansville & T. H. R. Co., Ind. Sup. Ct., Jan. 11, 1890.

Same-Evidence as to Intoxication of Injured Person. Where the plaintiff, in his evidence, has introduced testimony that the deceased drank no intoxicating liquors, and that he was sober on the afternoon of the day upon which the injury occurred, the deceased having been killed in the evening, he cannot complain of the introduction of evidence on behalf of the defendant to the effect that the deceased was intoxicated on that afternoon. Sherfey v. Evansville & T. H. R. Co., Ind. Sup. Ct., Jan. 11, 1890.

PENNSYLVANIA R. Co.

V.

MCMULLEN.

(Pennsylvania Supreme Court, February 3, 1890.)

Trespassers-Infant-Contributory Negligence.-A boy, ten years of age, who was lying on his back on a railroad track, crosswise the track, with his feet reaching over the rails and his head between the rails, was a trespasser, and no recovery can be had for his death although he could not, on account of his youth, be heldaccountable for his own negligence.

ERROR to Court of Common Pleas, Philadelphia County. Action to recover damages for the death of plaintiff's infant son. There were two trials of the case. A non-suit having been entered on the first trial and upon motion having been taken off, at the second trial the case was submitted to the jury on the same evidence, and a verdict for the plaintiff for $1,500 was rendered. The defendant brings error.

Gravin W. Hart and David W. Sellers for plaintiff in error. William H. Burnett for defendant in error.

Facts.

GREEN, J.-On the trial of this case the plaintiff examined but one witness to prove the fact and the circumstances of the accident. This is the account she gave of the occurrence: "Question. Please state just what you saw of this accident. Answer. When I saw the child he was lying on the flat of his back; his head towards the stationhouse, and his feet towards me. Q. How was his body,-on the track? A. Right in the middle of the track his body was; and his head. Q. Between the tracks, between the rails, do you mean? A. Yes, sir. Q. Crosswise?. A. Yes, sir; his feet towards me, and his legs hanging over. Q. How near was it to your house? A. Right opposite the east window towards Dauphin street. Q. Which window was you looking out of? A. The last one towards Dauphin street. Q. What room of that house? A. There was only one room of that house. Q. What happened after that? A. I saw him before the cars moved at all. They were just slightly moving; just commencing in motion; and he of course didn't make no effort to get up. I said to my step-mother, There's a child on the track, and he'll be run over, 'and she started out on Blair street and commenced to halloo, and I went out front. Q. That is, ont on Trenton avenue? A. Yes, sir. The first car went over him, and cut his foot right off. Then four car-wheels went

over him before there was any assistance came." The witness had previously testified that there was a train of small coal-cars standing on the track, reaching nearly a square, the majority of which were full, and it was under these cars that the boy was lying on his back immediately before and at the time he was run over and killed. She also said the whole train was coupled together, that there was no opening between the cars, and the place of the accident was between two streets. There was no contradiction of these facts; on the contrary, they were confirmed by the defendant's witnesses as to everything they saw, but none of them saw the actual collision. Several of the trainmen who were examined came to the spot immediately after the accident, and one of them lifted the boy out from underneath the car. Two of them testified to seeing a pan about half full of coal by the side of the boy, and one of them removed it.

Deceased

passer com

pany is not liable.

The undisputed facts therefore are that the boy, just before the accident was lying on his back on a railroad track, crosswise the track, with his feet reaching over one of the rails, and his head between the rails. The train was being a tres just starting, and was moving slowly, so that it was stopped when four wheels had passed over the boy. He was lying underneath the cars, and there is no evidence that he was endeavoring to cross the track. As a matter of course he was not, and could not be, in such circumstances, in the exercise of any legal right. Railroad tracks are not made for persons young or old to lie down upon in any circumstances; much less so when cars are standing on the track. They are not intended for any such use, and any person who makes such use of a track is undoubtedly a trespasser. The question is not an open one. Had this boy been an adult, as a matter of course he could not have recovered, both because of his own negligence and of his being a trespasser. The boy was 10 years old, and therefore cannot be held accountable for his own negligence. But, as a clear trespasser, recovery is equally impossible, notwithstanding his youth, and this we have many times decided. In every one of the following cases we held there could be no recovery although the persons injured were children, upon the express ground that they were trespassers. Philadelphia & R. R. Co. 7. Hummell, 44 Pa. St. 375; Flower v. Pennsylvania R. Co., 69 Pa. St. 210; Duff v. Allegheny Val. R. Co., 91 Pa. St. 458; 2 Am & Eng. R. Cas. 1; Cauley v. Pittsburg C. & St. L. R. Co., 95 Pa. St. 398, 2 Am. & Eng. R. Cas. 4; 98 Pa. St. 498, 4 Am. & Eng. R. Cas. 533; Hestorville Pass. R. Co. v. Connell, 88 Pa. St. 520; Moore v. Pennsylvania R. Co., 99 Pa. St. 301; Baltimore & O. R. Co. v. Schwindling, 101 Pa. Št. 258, 8 Am. &