Page:North Dakota Reports (vol. 2).pdf/476

 be given, or running a train at a high rate of speed, or some act of a kindred nature that had no reference to any known obstruction or danger. And in these cases the courts have quite uniformly held, particularly where cattle were not free commoners, that, as the defendant railroad company was under no obligations to anticipate the presence of trespassers upon its track, so it was under no obligation to maintain a watch for such trespassers or to do any act looking to their protection. The language used in some of the cases, notably the New York cases, is broad, and it is stated, without exception or qualification, that, in case of injury to trespassers, there can be no recovery except for the willful or wanton conduct or gross negligence of the defendant; and yet it is apparent at a glance that an entirely different principle is involved when it ceases to be a matter of anticipating trespassers, and their actual presence and peril are known and understood. Another fact will be found to be quite generally present in the above class of cases, and that is that the plaintiff was in actual fault, was guilty of actual negligence, by some act of commission or omission, from which the injury complained of might reasonably be expected to follow. But in this case, as appears from the statement of facts, plaintiff was chargeable with no actual fault or negligence. The trespass was purely technical, and the trespassing animal was seen by the servants of the defendant, and its peril appreciated in ample time to avoid the injury by the exercise of ordinary care and diligence. Under these circumstances we do not think the harsh rule of law that we have been considering applies. Gross negligence is briefly defined as the absence of slight care. It is that course of conduct which indicates an indifference to consequences. If it be for that only that a defendant can be held liable in a case of this kind, then human life and the rights of property have reached a lower valuation than can be found in any other branch of the law. It was well said in one of the cases that no more in law than in morals can two wrongs make one right. Trespassers, particularly mere technical trespassers, have some rights that must be respected. That they are trespassers does not constitute them outlaws, and if seen, and their peril known, they may not ruthlessly be run down and killed where ordinary care-such care as any prudent