The opinion of the Court was delivered by

This is an appeal from an order of nonsuit granted by his Honor, County'Judge Whaley. The exceptions, three in number, raise two questions: "

First, did the operation of the train at the time and place in question, constitute such an attractive nuisance as would place upon the respondent the burden of maintaining a switchman at the crossing, or gates, closing the same ?

Second, if the operation of said train did constitute such an attractive nuisance as would place a burden, as above, on the respondent, was there any evidence that the failure to have these protections mentioned operate as a proximate cause of the injury?

It is unnecessary, in. this case, to decide the first question. Under the evidence in the case, no other reference can be drawn than, even if a flagman or gates had been provided, it could not have been reasonably expected to protect the plaintiff’s intestate from the injury which he received. Such a flagman or gates would not have protected the deceased from injury. The deceased was not killed on the *365 crossing, but on the right of way of the railroad near the crossing, and he was not playing on the track, but he broke away from those who had him in charge and ran to and attempted to board a moving train.

The exceptions are overruled, and judgment affirmed.