Opinion, per JOHNSON, J. balance and fell under the wagon. No act of the driver brought about the fall of the boy. In Schulwitz v. Delta Lumber Co., 126 Mich., 559, the boy got on the wagon of defendant after it was unloaded and held on to an upright pole. As the wagon passed over rough places the pole was jogged out of its socket and plaintiff fell from the wagon. Recovery was sought because of the negligence of the teamster in permitting the boy to ride, but no wilful or wanton act of the driver brought about the injury. In Collins v. City of Chicago et al., 187 Ill. App., 30, plaintiff was permitted by the driver to ride on the rear step of defendant's ice wagon, following which was another horse and ice wagon of the company. Collins was thrown from the wagon because of a jar on one of the wheels and was injured by the second wagon. He based his action on negligence. The second proposition of the syllabus reads: "Where a person injured while riding on a wagon is a trespasser, the owner of the vehicle owes no duty to him other than to not injure him wantonly or wilfully." In Foster-Herbert Cut Stone Co. v. Pugh, 115 Tenn., 688 (91 S. W. Rep., 199), also much relied on, the plaintiff, with other boys, boarded the stone wagon on the invitation of the driver. The court say: "After riding a short distance they began one after another to dismount, and in undertaking to do likewise the deceased either fell or jumped to the ground between the wheels." The action was one for negligence. It will be noted that no act of the driver caused the injury. It must be remem Opinion, per JOHNSON, J. bered that this is not a suit for lack of ordinary care, but is based on wanton and wilful acts which caused the injury. No case has been called to our attention which holds that the mere giving of unauthorized permission by a driver to an infant relieved the employer from liability for wilful and reckless acts of the employe, which were done in the course and scope of his employment, and which were the proximate cause of injury. In Chicago, Milwaukee & St. Paul Ry. Co. v. West, 125 Ill., 320, it is held in the syllabus: "But where the engineer invites a boy of the age of seven years to ride on his engine, without authority, or in violation of his duty, and then directs the boy to get off while the engine is in motion, and the latter is injured in getting off, the company will be liable for the injury. It is negligent conduct in the engineer to direct a child of that age to get off while the engine is in motion, for which the company is liable in case of a personal injury caused thereby." In Enright v. Pittsburg Junction Rd. Co., 198 Pa. St., 166, it is held: "A child of tender years, who while trespassing on a freight train is frightened by the shouts and threatening action of a brakeman, while in the discharge of his duties, so that he jumps from the train while it is in rapid motion, and is injured, may recover damages from the railroad company for the injuries sustained." The court say, at page 170: "The boy was not injured by reason of the dangerous position in which he placed himself, but because of the careless and Opinion, per JOHNSON, J. * reckless act of the brakeman in causing him to alight while the train was in motion. The cause of the boy's injury, therefore, is directly attributable to the negligent act of the defendant's employee in frightening him so that he attempted to quit the train in the face of imminent danger." The court say further, at page 169: "If the position assumed by the court and urged by the appellee's counsel be correct, then a railroad company owes no duty whatever to a person of any age who enters upon one of its trains as a trespasser. The company under such circumstances may with impunity at any time eject a person from a train at the peril of life and limb. * * The child of tender years, whose discretion cannot protect him, as in this case, who has entered its train with the knowledge and without objection of the brakeman, may be cast from the train with impunity while its rapid speed insures the greatest danger. We cannot assent to a doctrine fraught with so much danger to the public and with so little regard for the rights of the individual." See also Lovejoy v. D. & R. G. Rd. Co., 59 Col., 222; Euting v. C. & N. W. Ry. Co., 116 Wis., 13; Nudelman v. Borden's Condensed Milk Co., 136 N. Y. Supp., 49; G., H. & S. A. Ry. Co. v. Zantzinger et al., 93 Tex., 64, and Bucci v. Waterman, 25 R. I., 125. * In certifying this case to this court the court of appeals states in its entry that it finds the judgment is in conflict with the judgment of the court of appeals of the eighth appellate district in the case of The Goff-Kirby Coal Co. v. Skufca (9 Ohio App., 177). After the judgment in the Skufca case in Opinion, per JOHNSON, J. the court of appeals, a motion was filed in this court to require the cause to be certified here for final determination, on the ground that it was a case of public and great general interest. That motion was overruled. While the reason of the overruling of the motion does not appear, the entry of the court of appeals in that case shows that that court reversed the judgment in favor of the plaintiff in the trial court "because it is contrary to law and against the weight of the evidence." In resisting the motion counsel for defendant in that case invoked the application of Rule XIX of this court, which provides that in cases in which the judgment of the court of appeals reverses the judgment of the court of common pleas wholly or partly on the ground that such judgment is not sustained by sufficient evidence, a motion to affirm such judgment forthwith shall be entertained. The record in that case also disclosed that in his charge the trial court instructed the jury as follows: "When a boy such as the plaintiff is found upon that wagon without the permission of the Company, a duty arises on the part of the Company, acting through its driver, to exercise ordinary care to allow him to alight safely from that wagon. * If you find that the driver knew Joseph Skufca was upon his wagon, then I say to you that when the driver is requested by the plaintiff to permit him to alight or get off the wagon, it is the duty of such driver, and such duty devolves upon the Company which he represents, to exercise or * dinary care safely." Opinion, per JOHNSON, J. * to permit the boy to alight The boy in that case was on the wagon by the invitation of the driver and had requested to be allowed to get off. The driver paid no attention to him and in attempting to get off by himself the boy was injured. After reciting that the boy was on the wagon by the unauthorized invitation of the driver, and that he was a trespasser, counsel for the company in that case say in their brief: "The defendant, on the other hand, maintained that under these circumstances the only legal duty it owed the plaintiff was to refrain from wilfully or purposely injuring him." Defendant's counsel in that case further say in their brief: "Counsel assume that this boy, while on the wagon, was in a place of danger. The opinion of the court of appeals shows conclusively that while upon the wagon he was in no danger whatever. His attempt to dismount from the wagon, before it could be brought to a stop, was the proximate cause of his injury, and was his own act, unknown to the driver of the wagon. Now, if it be conceded that in this case, as in that, the boy was a trespasser, it is clear that while upon the truck he was not in any danger whatever until the subsequent wanton and wilful acts of the driver created the danger and injured him. The authorities are uniform in holding that to constitute wilful or wanton negligence it is not necessary to show ill-will toward the person injured, but an entire absence of care for the life, person or property of others which exhibits in |