M’DONAI.D v. Umor: mc. ar. co. 39
j Of course, the fact that the defendant is a railroad company cuts no"~
figure in this case. The wrong complained of is in its operations,;its
works at the mine; and the case stands just as though the defendant was
an individual who had a coal mine, threw out a pile of slack, and left it.
It is further alleged that this slack was contiguous to the town of Erie, a
place of about 700 inhabitants; that it was not fenced in; that no notice,
placard, or anything was placed to warn persons against the danger, and
that to the eye it appeared as ta. mass of lifeless ashes. But was there
any negligence in that for which the defendant could be held liable?
The slack was thrown on its own ground. The court must take judicial
notice of the ordinary operations of a mine, how customary it is when
atshaft is sunk to throw the refuse one side. That was what was done A
here. Antattempt is made to bring it within the rule laid down by- the
supreme court in the Stout Case, 17 Wall. 657, where a railroad company
. left a turn-table insecure, unfastened, and boys came around, and, play-
ing with it, one of them was injured; and it was held that there was "a .
question of fact which must be submitted to a jury as to whether" there "
was or was not negligence in thus leaving the turn-table on its own ground
insecure. There was one significant fact in that which all men must
take notice of, and that is the temptation which anything of that kind is
to boys. They are attracted by such an instrument; like to see it tum;
like to ride on it. The railroad company, like everybody else, must
take notice that such an instrument as that is a temptation, and likely
toattract boys of tender years, who are ignorant of the dangers that sur-
round it. But what temptation is there in a pile of ashes? Would any- `
body anticipate that a boy, even of tender years, would be attracted by
a pile of ashes, an ash heap of any shape? It is true, this boy, fright-
ened by others, and fleeing, ran across it, or attempted to run across.
So he would if there had been a pile of manure, instead of ashes, or any-
thing else which did not on its face warn him of danger, or discourage
him from attempting to cross. Assured1y no individual would antici-
pate, or couldbe expected to anticipate, that there was anything in a"
pile of ashes any more than in a manure heap which would attract boys
and lead them to play about it, or get into trouble from it. A person /
who, without business or invitation or permission, goes onto the ground,
of another, is a trespasser. One that thus went on the mining property
was a trespasser.` There was no implied license, no implied invitation ,
to this boy to come there, nothing to attract him to this ash heap. It
seems to me that it cannot be charged against the defendant that it was
guilty of any negligence in leaving this pile of ashes without a fence, or
without a notice, warning persons not to step upon it. The boy cannot
be. classed as one absolutely of tender years. -· He was 12 years of age.
Of course, a boy at that time of life has not the experience and judgment
of one of maturer years, but he is not like a child of two, three,. four, or
five years, without any experience, without any judgment. He cannot
be called in reference to a matter of this kind, running away from boys
who were frightening} him, a mere child of tender years in the purview
of the law. So uponthe facts as stated, and there being no other facts