Opinion by
Mb. Justice Gbeen,
The plaintiff and all his witnesses who speak upon the sub*249ject, testify that the plaintiff, at the time he was struck by the engine, was walking upon the track of the railroad in between the rails and along the track. He was not at the highway crossing, but some twenty feet away from it, according to his own testimony, and about thirty-five or forty feet distant, according to the testimony of McCaslin, one of his witnesses. The engine was moving very slowly, about five or six miles an hour. Smith, another of the plaintiff’s witnesses, who was on the ground and saw the whole occurrence, testified: “ I saw the accident. I was just across the track opposite the penstock. I was standing near the railroad where it goes into the main road at the crossing .... pusher engine was running very slow, should say not faster than five miles an hour; the boy was picked up right near the Drovlesky shanty; when he was hit he was walking down the track with his water, between the rails of the siding. I locate him when he was hit probably twelve or fifteen feet from the penstock; saw the boy at the pen-stock ; saw him start; from the penstock he stepped down on the track, walked right on the track from the penstock—am sure about that—and walked down the track to get around this train.”
Another witness for the plaintiff, McCaslin, said: “ There was a freight train there at the time of the accident j it extended over the road three or four cars below the crossing; it started up—it was just nicely on a move—just pulling up—as the ‘ pusher ’ went back over the crossing. ... At the time the plaintiff was injured the train was moving north on the main '.track; it required about four cars to have passed before the tram would have passed the crossing; it would have taken a little more than a minute—a little longer than that.” This freight train was moving on the main track over the crossing, and it was to get around this, according to Smith, that the plaintiff walked down on the siding. Had he waited this very brief space of time, a single minute, he could have crossed in perfect safety. He had gone from his father’s house a few moments before to the penstock to get a pail of water. The penstock was about seven feet from the nearest rail of the track. He was asked by his own counsel: “ Q. After you got the pail of water and started to go home, state what you did. A. I went back up into the public highway and started down the *250siding. Q. Why did you start down the siding ? A. Because there was a train, across the crossing. . . . Q. You say you started down the siding. What happened then? A. I got struck with ail engine.” On cross-examination he was asked: “ Q. Then when you left the roadway you went on the siding ? A. Yes, sir. Q. And walked down the siding? A. Yes, sir. Q. Going south? A. Yes, sir. Q. On the siding? A. Yes, sir. Q. Between the rails of the siding ? A. Yes, sir. Q. About where, on the track, were you walking, as to the middle of the track or by the side ? A. In the middle between the rails.” There was other testimony to the same effect. It was therefore firmly established by the testimony of the plaintiff and his witnesses that he went upon, and walked on, the track of the railroad voluntarily and of his own accord, without the least necessity or occasion for his so doing, without any permission to do so from any agent of the defendant, and without walking upon any beaten track, or upon any path or footwalk of any kind. Under all our decisions he was a clear trespasser upon the track at the time and place where he was hurt, and most clearly has no right of recovery. As far back as Railroad Co. v. Hummell, 44 Pa. 375, .in 1863, this doctrine was announced and enforced in the case of a child seven years old, and in circumstances far more favorable to a recovery than in the present case, and the rule then adopted has been always adhered to and followed from that day to this. In view of the earnest contention^ of the learned counsel for the appellant in the present case it may be well enough to repeat some of the reasoning upon which the decision in Railroad Co. v. Hummell was founded. The opinion of this Court was delivered by the distinguished jurist, Mr. Justice Strong. In the course of the opinion he said: “ But if the use of a railroad is exclusively for its owners, or those acting under them; if others have no right to be upon it; if they are wrongdoers whenever they intrude, the parties lawfully using it are under no obligations to take precautions against possible injuries to intruders upon it. Ordinary care they must be held to, but they have a right to presume, and act on the presumption, that those in the vicinity will not violate the laws ; will not trespass upon the right of a clear track; that even children of tender age will not be there, for though they are personally irresponsible they cannot be upon the rail*251road without a culpable violation of duty by their parents or guardians. Precaution is a duty only so far as there is reason for apprehension. No one can complain of want of care in another where care is only rendered necessary by his own wrongful act. It is true that what amounts to ordinary care under the circumstances is generally to be determined by the jury. Yet a jury cannot hold parties to a higher standard of care than the law requires, and they cannot find anything negligence which is less than a failure to discharge a legal duty. If the law declares, as it does, that there is no duty resting upon any person to anticipate wrongful acts in others and to take precautions against such acts, then the jury cannot say that a failure to take such precautions is a failure in duty and negligence. Such is this case. The defendants had no reason to suppose that either man, woman or child might be upon the railroad where the accident happened. They had a right to presume that no one would be on it, and to act upon the presumption. Blowing the whistle of the locomotive, or making any other signal was not a duty owed to the persons in the neighborhood, and consequently the fact that the whistle was not blown, nor a signal made, was no evidence of negligence. Were it worth while, abundant authority might be cited to show that the law does not require any one to presume that another may be negligent, much less to presume that another may be an active wrongdoer. . . . There is as perfect a duty to guard against accidental injury to a night intruder into one’s bedchamber as there is to look out for trespassers upon a railroad where the public has no right to be.
“ And the rule must be the same whether the railroad is in the vicinage of many or few inhabitants. In the one case as in the other, going upon it is unlawful, and therefore need not be expected.”
The whole of this reasoning is applicable to the present case and controls it. In Mulherrin v. Railroad Co., 81 Pa. 366, we held that where a person goes on a track he cannot recover from the company except for wanton injury, although the negligence of the company’s agent contributed to the result. In the opinion we said: “ Except at crossings where the public have a right of way a man who steps his foot upon a railroad track does so at his peril. The company have not only a right of way, but *252such right is exclusive at all times and for all purposes. This is necessary not only for the proper protection of the company’s rights, but also for the safety of the traveling public.” In Moore v. Pa. R. R. Co., 99 Pa. 301, we said: “ The circumstance that the trespasser in this instance was a boy ten years of age cannot affect the application of the rule. The defendant owed him no greater duty than if he had been an adult. They are not subject to an obligation to take precautions against any class of persons who may walk on and along their tracks. In Railroad Co. v. Hummell, 44 Pa. 375, the rule was applied to the case of a child seven years old. And so also in the latest case of the kind that has been before us, Cauley v. Railway Co., 95 Pa. 398, the rule was in no wise relaxed although the person injured was a boy of tender years.”
We have applied the rule in many other cases of children, but it is not necessary to cite them, as there is no dispute about the law. The appellant however claims that there are several considerations which take this case out of the ordinary rule. These are all fully considered and answered in the opinion of the learned court below on the motion to take off the nonsuit, and we do not consider them of sufficient force to make any extended answer to them now. We concur entirely with the court below and for the reasons stated in the opinion in the decision refusing to take off the nonsuit. The permission to the neighbors to take water from the penstock cannot possibly be regarded as a permission to any one to walk on the tracks. The boy was not at or on the crossing when he was struck, and it was not the duty of the men on the train to look out for trespassers. Whether the boy was on the main track or side track made no difference in the application of the rule. It is a mistake to say the boy was crossing the track. He and all his witnesses said he was walking along and on the track. The assignment of error is dismissed.
Judgment affirmed.