This suit wаs brought by plaintiff, Troy George, to recover from defendant Railroad Company for personal injuries sustained by him when he was knocked off of the side of a box car and fell on the tracks and was seriously and permanently injured. At the close *of plaintiff’s evidеnce in response to defendant’s motion, the court directed a verdict and rendered judgment for defendant.
Plaintiff predicаtes his appeal upon a single point, urging that his pleadings and evidence were sufficient to require the court to submit the case to the jury. — We overrule plaintiff’s point.
For the purpose of passing on whether the court erred in directing the verdict for defendant and thereby in effect sustaining a demurrer to the evidence, plaintiff’s evidence must' be considered in the light most favorable to him and all inferences in his favor which the evidence) will reasonably bear must be indulged. Najera v. Great Atlantic & Pacific Tea Co.,
Plaintiff, who was twenty-one years old at the time of the trial, sustained the personal injuries aforesaid on June 30, 1948. The box car, from the side of which plaintiff was knocked under the circumstances hereinafter stated, along with other freight cars was at the time of the accident being moved over a trestle or overpass on defendant’s tracks in South Dallas in a thickly populated area. At.the time plaintiff sustained his injuries, he was fourteen years and three months old and of normal intelligence for his age.
Defendant’s tracks in the vicinity wherе the accident occurred were on top ‘ of an embankment and boys from time to time played on this embankment to the knоwledge of defendant’s employees, who from time to time would wave at them as they went by. There was also a playground adjаcent to defendants tracks in this locality and also a vacant lot where plaintiff and other boys played. The defendant had hot fenced the tracks off against- the boys in the neighborhood nor did they have guards on the trains to prevent boys from hopping rides on their slow-moving trains. On this particular train there was no caboose and of course no brakeman or conductor who might have guarded or protected the train from boys hopping a ride thereon.
If plaintiff wished to gain some-legal advantage frоm the fact that no' caboose was on the train, the burden upon him would have been to introduce evidence to establish that the train was violating the law by not having a caboose and that the same was a proximate cause, but‘ the evidence shоwed that the movement of the cars which included the box car from which plaintiff was knocked was under t-he charge •of the enginе foreman, and so a-' switching movement and not the movement of a train made up for transportation -on the main line. • '
*266 In this connеction it should be further stated that there were no signs erected by defendant warning of the dangers connected with such hopping оf rides and furthermore the boy’s home was within two blocks of the tracks and his parents had warned him of the dangers of being around the tracks but had not warned him against the danger of hopping rides and he did not appreciate such danger and along with other companions felt strongly attracted to hopping rides.
On the other few occasions that plaintiff caught a ride he purposely did it so as to avoid detection by defendant’s employees because he knew they would not permit it. There was no evidencе that the plaintiff hopped a ride on the train in question or hopped rides on any other occasion with the knowledge оr authority of the defendant or any of its employees. On this occasion plaintiff and another companion hoppеd on the slow-moving train, plaintiff caught the ladder on the side of the box car and while attempting to pull himself into an upright position thе box car passed over the trestle or overpass and the wooden construction on the side thereof caught part of the body of plaintiff and knocked him off.
We would state further facts if this were a case in which plaintiff was entitled to invoke the рrotection of the attractive nuisance doctrine but since it is not such a case no good purpose would be served in making further statement of the facts involved. It is now the settled law of this State that it is not a question of fact for the jury to determine whether or not a normal boy of fourteen is of sufficient age and maturity to appreciate the dangers which would constitute an attractive nuisance. Massie v. Copeland,
In the next place, it seems to be well settled that the attractive nuisance doctrine has never been extended to moving trains. In such case the railroad’s duty is to keep a lookout to prevent injury to anyone who may be on the railroad traсks or approaching same and it is held that it would impose an intolerable burden to obligate the railroad to also see that no intruders rush into obvious dangers after the train has passed. St. Louis S. W. Ry. Co. of Texas v. Davis, Tex.Civ.App.,
It is рlaintiff’s contention, however, that it is well settled law that railroad trains are such dangerous instrumentalities as come within the attractive nuisance doctrine, and he cites in support of such contention: Rinker v. Galveston-Houston Electric Railway Co., Tex.Civ.App.,
Plaintiff’s contention that plaintiff was shown by the 'evidence to have been a licensee or invitee is without merit.
We sustain the court’s order in directing a verdict for defendant and the judgment is affirmed.