In view of the known propensity of boys to climb trees in the highway, frequently with the tacit assent of the owner of the adjoining land, and of the fact that in any event it was not an invasion of the defendant's rights, it was for the jury to say whether the defendant was not under a duty to make inquiries and inform itself as to the situation. Davis v. Railroad, 70 N.H. 519, 522. The defendant's ignorance does not necessarily excuse it.

Where there is no duty there is no negligence. McGill v. Granite Co., 70 N.H. 125, 127. "The ownership of land imposes no duty upon the owner for the benefit of trespassers." Davis v. Railroad, 70 N.H. 519, 520. Hence, in the words of the plaintiff's brief, a landowner "is not obliged to fence a disused reservoir while filling it up (Clark v. Manchester, 62 N.H. 577), or a manufacturing corporation to stop its machinery or forcibly to eject a trespassing child (Buch v. Company, 68 N.H. 257), or a railroad to lock its turntables or discover chance trespassers (Frost v. Railroad, 64 N.H. 220; Shea v. Railroad, 69 N.H. 361)," or to fence its right of way for the protection of an infant trespasser. Casista v. Railroad, 69 N.H. 649. These propositions are admitted by the plaintiff upon the authorities in this state, and from them it follows that a railroad is not in fault for not keeping its right of way clear of obstructions which may render the place dangerous to an infant trespasser.

This theory of liability rested upon the matter of reasonable anticipation on the part of the owners and the utility of the presence of children on the property and the dangers attendant thereto. These theories of liability are found treated in 18 Am.Jur. p. 463; 38 Am.Jur. p. 779; 45 C.J. p. 748; 14 A.L.R. p. 1038; Curtis on Law of Electricity, § 510; Robbins v. Athol Gas Electric Co., 236 Mass. 387, 128 N.E. 417; Romana v. Boston Elev. R. Co., 226 Mass. 532, 116 N.E. 218; Davis v. Boston M. R. R., 70 N.H. 519, 49 A. 108; 17 A.L.R. p. 853 et seq.; and discussed to some extent in Alabama Power Co. v. Cooper, 229 Ala. 318, 156 So. 854; and Littleton v. Alabama Power Co., 243 Ala. 492, 10 So.2d 757, cited in Sullivan v. Alabama Power Co., ante, p. 262, 20 So.2d 224. In counts 1 and 2 is found no intimation of any such use of property or any such theory of liability.

Alabama Fuel Iron Co. v. Bush, 204 Ala. 658, 86 So. 541. The complaint alleges notice on the part of defendant that plaintiff's intestate was living on the premises before the injury, but if she had been a trespasser, defendant would be liable on the facts alleged. 45 C.J. 749, § 145; Davis v. Boston M. R. R., 70 N.H. 519, 49 A. 108; Alabama Fuel Iron Co. v. Bush, supra. Lange, Simpson, Brantley Robinson and Oliver W. Brantley, all of Birmingham, for appellee.

In the second place, even if the request for a report could be found to have been wrongful, still it became injurious to the plaintiff only in consequence of the subsequent distinct wrongful act of the police in arresting the innocent plaintiff. Under these circumstances, "the injury shall be imputed to the last wrong as a proximate cause, and not to that which was more remote." Cooley, Torts (4th ed.), s. 50, cited in Morier v. Hines, 81 N.H. 48, 56; Davis v. Railroad, 70 N.H. 519, 521. In view of the result reached we need not consider what effect the release given to the Boston police had upon the plaintiff's rights against the defendant.

Such testimony of belief is permitted when it is gained from observation (1 Wig., Ev. s. 658) or when the belief is connected with some act of the witness which is in issue, unless it is excluded because irrelevant or forbidden by some other principle (1 Hening, Digest, 598, 599). Here the beliefs were related to both observation and conduct, and were relevant to the issue of what Miss Smith in fact anticipated or failed to anticipate. In a case like this, the first inquiries are (1) what the plaintiff actually knew of his situation, and (2) what he must be held to have known, though ignorant of it. Davis v. Railroad, 70 N.H. 519, 523. These facts ascertained, the conduct of the plaintiff may be tested.

" Boston Maine Railroad v. Sargent, 72 N.H. 455, 463. "Legal negligence is the failure to perform a duty the law imposes upon one person for the benefit of another; consequently, when there is no duty there can be no negligence." Davis v. Railroad, 70 N.H. 519, 520. See also Hughes v. Railroad, 71 N.H. 279, 284; Garland v. Railroad, 76 N.H. 556; Brody v. Gilbert, 82 N.H. 158. The nature and extent of the duty which the defendant, acting through its engineer and fireman, owed to the deceased must be determined by reference to federal legislation and the opinions of the federal courts.

The foregoing principle has been stated by this court as follows: "To bring the case within the category of actionable negligence, some wrongful act must be shown or a breach of some positive duty. Buch v. Company, 69 N.H. 257, 260. The duty must be one owed by the defendants to the plaintiffs in respect to the very matter or act charged as negligence. Leavitt v. Company, 69 N.H. 597; McGill v. Granite Company, 70 N.H. 125; Morrison v. Company, 70 N.H. 406; Davis v. Railroad, 70 N.H. 519, 520." Pittsfield c. Mfg. Co. v. Company, 71 N.H. 522, 531. Applications of the principle are to be found in Bennett v. Company, 76 N.H. 180; Watkins v. Hustis, 79 N.H. 285; Monteith v. Company, 82 N.H. 175.

While there was no duty to provide safe conditions for her, there was a duty to refrain from negligent conduct towards her as a known trespasser. Davis v. Railroad, 70 N.H. 519; Myers v. Railroad, 72 N.H. 175; Hobbs v. Company, 75 N.H. 73; Nappi v. Railway, 78 N.H. 261; Ellsmore v. Director-General, supra. As generally expressed, the defendant was liable for negligent acts of intervening force after the plaintiff's presence became known.

1. In the following cases where adult pedestrians have been injured while crossing or walking upon railway tracks, recovery has been denied: Currier v. Railroad, 78 N.H. 586; Coyle v. Railroad, 77 N.H. 604; Bonnin v. Railroad, 77 N.H. 559; Doucette v. Railroad, 77 N.H. 419; Connelly v. Railway, 77 N.H. 280; Chabott v. Railway, 77 N.H. 133; Greenwood v. Railroad, 77 N.H. 101; Lord v. Railroad, 74 N.H. 39; Batchelder v. Railroad, 72 N.H. 528; Myers v. Railroad, 72 N.H. 175; Waldron v. Railroad, 71 N.H. 362; Davis v. Railroad, 70 N.H. 519; Gahagan v. Railroad, 70 N.H. 441. Although a pedestrian is not subject to a more stringent rule of law than that which governs other travelers, the fact that he has "nothing to control except his own locomotion" (Bonnin v. Railroad, supra, 562) is a distinguishing circumstance of material importance on the issue of contributory negligence — an issue which the jury must determine unless it conclusively appears that at the time of the accident the injured person was not in the exercise of ordinary care. Collins v. Hustis, 79 N.H. 446.