#### Vaillant and wife, Appellants, vs. Chicago & Northwestern Railway Company, Respondent.

*May 23*

June *13, 1916.*

*Railroads: Fences: Death “occasioned" by want of fence.*

1. Where a hoy sixteen years old', having entered upon a railroad right of way at a place where it should have been hut was not fenced, hoarded a moving freight train and after traveling several miles was killed in attempting to jump from the train while it was in motion, his death was not, within the meaning of sec. 1810, Stats. 1915, “occasioned ... in whole or in part” hy the want of a fence, there being no causal relation between them.

2. The. word “occasioned” in said sec. 1810 means caused incidentally or indirect!y.

Appeal from an order of the circuit court for Brown county: Henuy Geaass, Circuit Judge.

*Affirmed.*

The action was brought by the plaintiffs to recover damages for the death of their son, George Vaillant, whose death is alleged to have been “occasioned” by the absence of a fence on defendant’s railroad right of way.

George'Vaillant, son of the plaintiffs, was sixteen years of age at the time of his death. On October 31,1914, he entered upon the defendant’s right of way in the city of Green Bay at a point where Maple avenue, if extended northerly to Seventh street, would intersect defendant’s right of way. There was no fence on the side of the railroad tracks at this place and this area did not constitute depot grounds. The boy boarded a moving freight train at this place and managed to get into one of the cars. When the train reached Pine street, De Pere, the boy attempted to get off from the train while it was in motion and was killed.

The plaintiffs allege that the absence of the fence “occasioned” the boy’s death; that if the fence had been there he would have been interrupted in his course and delayed in reaching the moving train and that he could not have caught *549tbe moving ear. Tbe complaint contains no allegation showing tbat tbe decedent entered onto tbe railroad in tbe ordinary course of travel and over a well established path commonly used by tbe public with tbe acquiescence of tbe railroad company.

Tbe defendant demurred to tbe complaint as not stating facts sufficient- to constitute a cause of action. Tbe court made an order sustaining tbe demurrer. From such order this appeal is taken.

For tbe appellants there was a brief signed by *Kaftan & Reynolds*(by *Robert A. Kaftan),*and oral argument by *Robert A. Kaftan.*

*Kdward M. Smart,*for tbe respondent.

SiebecxeR, J.

Tbe argument is made tbat tbe boy’s death was “occasioned, ... in whole or in part, by tbe want of such fence.” Sec. 1810, Stats. 1915. Tbe meaning of tbe word “occasioned” as used in this statute has been adverted to in tbe opinions of this court and is declared to signify tbat which is caused incidentally or indirectly. *Curry v. C. & N. W. R. Co. 43*Wis. *665; Schwind v.*C., *M. & St. P. R. Co.*140 Wis. 1, 121 N. W. 639. In this sense of tbe statute can it be reasonably asserted tbat tbe omission of tbe fence under tbe alleged facts was tbe means of producing tbe boy’s death? Did it incidentally cause bis death, or are we compelled to say tbat bis death is attributable to other elements of tbe transaction ? Tbe claim tbat tbe presence of a legal fence on tbe right of way would have intercepted tbe boy in tbe progress of bis course and have prevented him from catching the moving train and thus be would have avoided tbe injury, is based on inferences highly speculative, uncertain, and purely conjectural. It cannot be said, in the light of common experience, tbat such a fence would have intercepted or diverted tbe boy in bis undertaking to reach tbe moving train. We know tbat such a fence is hardly an im*550pediment in the course of a normal boy sixteen years of age in attempting to catch a moving train. It is a mere surmise to assert that its presence would have diverted him from pur- , suing his perilous expedition, or that it would have prevented him from catching the moving train. The conditions and events of the whole affair afford no reasonably certain basis for an inference that the absence of the required railroad fence was an incidental cause or means of producing the boy’s death.

It is furthermore to be observed that the injury causing the boy’s death was inflicted at De Pere, about five miles distant from the place where he got on the train, when he attempted to jump off from the moving car. It is obvious that he had successfully carried out the first steps of his undertaking. As the trial court declared: “He sought to steal a ride on a freight train to the neighboring city, several miles away. He accomplished his purpose, and was not injured because of the fact that he tried to board the train, . . . but because of the fact that later he sought to jump off from the moving train several miles further on.” His reckless conduct in jumping off from the moving car was the real peril that “occasioned” his injury. This act is disconnected and separated from the absence of the fence and in the natural course of things constitutes an independent event as related to the resulting injury. The evident answer to the inquiry, What occasioned the boy’s death ? is that it was the natural consequence of his voluntary act of jumping off from the moving train. This act was wholly unrelated to the company’s omission to have a railroad fence. The two events had no causal relation, and the latter cannot be considered as causing the death in any incidental or indirect manner. Without pursuing the inquiry further, in the light of the facts alleged in the complaint it cannot be held that the boy’s death was “occasioned in any manner, in whole or in part, by the want of such fence.” Plaintiff cites to our attention *Schwind v. C., M. & St. P. R. Co.*140 Wis. 1, 121 N. W. 639; *Alexander**551*v. M., St. P. & S. S. M. R. Co.*156 Wis. 477, 146 N. W. 510; *Ulicke v. C. & N. W. R. Co.*152 Wis. 236, 139 N. W. 189; and *Bejma v. Chicago & M. E. R. Co.*160 Wis. 527, 149 N. W. 588, 152 N. W. 180, and relies upon them as authorities to sustain the defendant’s liability upon the complaint. An examination of them has convinced us that these cases are clearly distinguishable from the instant one and that the rules governing those cases do not apply here.

*By the Court.*— The order appealed from is affirmed.