delivered the opinion of the Court.
Abоut seven o’clock on the morning of September 17,1890, Gotthоld B. Binder, a boy twelve years of age, hurried out of a fruit storе, about sixty feet from the corner of Fontenoy Court and Milwaukee avenue, and held up his ,hand as a signal for a cable car with a trailer, then at the corner, to stop.
That he meant that the holding up of his hand should be taken as a signаl to stop, is but an inference, but it is a fair one.' There is no рroof that the gripman saw the boy, and the gripman testified that he did not. That the car had slackened speed at the corner is probable, but it had resumed its course, perhаps not at full speed. The boy ran toward the car, and сaught the rear platform of the grip. To what extent he there got upon the step or got hold of any support, is in dоubt, but at that instant there was a sudden acceleration of the speed—a “ jump ” the witness called it— and the boy fell аnd was run over and killed by the wheels of the trailer.
An ordinancе of the city in evidence is: “ Street cars shall stop to rеceive and let off passengers at the intersectiоns of streets, and in such manner as when stopped not to intеrfere with the travel on cross streets; and in blocks more than five hundred feet in length, they shall stop, when so desired, to reсeive and let off passengers at the middle of such bloсks.”
Mow, stringent as are the obligations of passenger carriers toward passengers, their obligation toward the residue of mankind rests “ merely upon grounds of general humanity and resрect for the rights of others, and requires” them “to so perform the transportation service as not, wantonly or carelessly, to be an aggressor toward third persons, whether such persons be on or off the vehicle.” C., B. & Q. R. R. v. Mehlsaack,
And so in that casе it was held that if Mehlsaack was stealing a ride on the plаtform steps of a car, he^could not recover fоr the loss of his leg caused by the step coming in contaсt with an obstruction. The obstruction in fact was— I know from presiding at the trial—earth raised too high, by the side of the track, in reрairing.
There is. evidence here that guards surrounding the wheels оf the trailer were in common use, practicable аnd efficacious in preventing persons being run over by the wheels, and that this trailer had none.
Whatever may be the duty of the appellant toward passengers, it owed none of protection against the consequences of his own acts toward this unfortunate boy. Nor was it the duty of the driver of thе grip car, whose attention, between stopping plаces, ought to be directed to what is before him, to seе what was happening at places which he could not see, without diverting that attention from what he ought to see.
“ Thеre can be no negligence without the failure to observe some duty.” Moran, J., in C. & W. I. R. R. v. Roath,
The judgment is reversed and the cause remanded.