DEFENDANT'S PRAYERS. where plaintiff was injured, and that such use of such path or line of passage by the public was known to the defendant company. That evidence which, as a whole only shows that the public crossed the property and tracks of the company at varying points within the limits of one or two hundred feet, as each passer found most convenient, or as openings between or disposition of the cars upon the side track permitted, will not establish or tend to establish a permissive way within the meaning of the law. That a permissive way, if the jury should find that such way existed, did not involve any other use thereof by the plaintiff than merely to pass over the land of the company, and would not warrant him in so passing between the cars as to place himself in, and keep himself in, a place of danger thereon, until the regular use of the defendant's trains and property resulted in his injury. That if the jury find that a proper permissive way in fact existed across the land and tracks of the defendant at the point where the plaintiff was injured, and that the plaintiff was at the particular time he was injured, properly using the same, then the plaintiff was, in using such permissive way, a gratuitous licensee of the defendant company. That the plaintiff under such circumstances, accepted the privilege to cross the tracks of the defendant, subject to the common and ordinary use of such tracks, and the movements of the trains and cars of the defendant company with all the usual and customary dangers and risks accompanying such use and movement. 111 &c. R. R. vs. Hetherington, 83 Ill., 510; Finlayson vs. Chicago, &c., 1, Ill., 579; Bancroft vs. Boston &c. R. R. Co., 97 Mass., 276.; IU., &c. R. Co. vs. Godfrey, 71 Ill., 500; Galena &c. R. Co. vs. Jacobs, 20 Ill., 478; P. & R. Ry. vs. Hummell 44 Pa. St., 375; Brand vs. Troy &c. R. R., 8 Barb., 368; Gaynor vs. R. R. Co., 100 Mass., 208; Blanchard vs. R. R. Co., 18 N. E. Rep., 799; Johnson vs. R. R., 125 Mass., 75; Morissey vs. R. R. Co., 126 Mass., 377; Galligan vs. R. Co., 143 Mass., 527; Sutton vs. N. Y. &c. Ry., 66 N. Y., 243; Ill. Cent. Ry. vs. James, 67 Ill. App., 649. CHARGE OF COURT. That it was the duty of the plaintiff, before attempting to cross the tracks of the defendant, under the circumstances of this case, to have looked and listened and by the use of his senses to have ascertained whether the defendant was either moving or about to move its cars, and that if the jury find that the plaintiff did not so look and listen, and in default thereof ran into a place of danger, whether such danger was produced by the negligence of the defendant or not, the plaintiff contributed to his own injury and cannot recover. The burden is upon the plaintiff to show by preponderance of proof that the negligence of the defendant was the sole cause of the injury. Huber vs. Jackson & Sharp Co., 1 Marvel, 374. LORE, C. J., charging the jury: Gentlemen of the jury:-John Weldon, the plaintiff in this action, claims that on the eighth day of August, 1895, he was ten years, nine months and thirteen days old. That between four and five o'clock on the afternoon of that day, in running away from a drunken man in the town of Townsend in this county, he ran upon the easterly siding or track of the railroad of the defendant company, into an opening between two cars standing on the siding, at or near the point where Gray street of the said town intersects the said railroad. That the cars on the siding were standing still when he ran upon the track; that almost instantly, without blowing a whistle, ringing a bell or other warning, a shifting engine pushed the cars together, caught him between the cars, and so crushed his right shoulder and arm that they have withered and become wasted; that he is a cripple and maimed for life. That at the point where he was crossing the siding, many of the adults and children of the town, had been in the habit of crossing the railroad for a period of many years theretofore, with the knowledge and consent of the company, and without any objection whatever on the part of the company. That there was a pathway at that point, made by the persons so crossing the railroad, and that the company CHARGE OF COURT. frequently left open spaces at that point between the cars on the siding through which the people so passed; thus inviting them to cross. That at the time of the accident he was using due care, and that his injuries resulted from the negligence of the company. The defendant, on the other hand, contends that Gray street was not a public highway opened and in use across the land of the company at that point, and that there was no pathway recognized by the company at the place of the alleged injury; that on the contrary the alleged way was obstructed by a ditch and embankment. That the plaintiff was upon the land owned by the company in fee, and was a mere trespasser or licensee, and as such was using the crossing at his own risk and peril. That the company had no knowledge of the presence of the plaintiff on the siding, until after the accident; that therefore the plaintiff's injuries were the result of his own carelessness. It is admitted in this case on both sides, that this siding was located on land owned by the defendant company, and was used by the company in the prosecution of its business, at its convenience, for placing, loading and shifting cars, and that the place where the plaintiff was injured was upon the lands of the company. Two controlling questions are presented for your consideration: First. In what right was the plaintiff crossing the siding at the time of the injury? Second. What were the relative rights and duties of the plaintiff and the defendant, at that time and under the circumstances, growing out of the infancy of the plaintiff? First. The plaintiff claims that he was crossing that siding under the protection of a permissive or implied license from the company itself, and even at the invitation of the company. It is therefore needful that you should understand what such a license means. "A license is an authority to do a particular act or series of CHARGE OF COURT, acts, on the land of another, without possessing any estate therein." -11 Mass., 533. "An implied license, is one which is presumed to have been given, from the words, acts or passive acquiescence of the party authorized to give it."-2 Bouvier Dic., 222. Such a license must be established by proof, and is not to be inferred from equivocal declarations or acts of the owner of the land.-31 Atl. Rep. (Pa.), 310. Such a license is revocable at the will of the grantor, unless it is either irrevocable in its terms, or is coupled with an interest. A license to cross a railroad growing out of the mere passive acquiescence of the company, will be strengthened by any act of the company, which amounts to an inducement or invitation held out to the people to use the crossing. But such invitation must be some unequivocal act, done by the company indicating such purpose. A mere permission or license to cross is not such an invitation.-142 Mass., 300. Such permission can only be used in any case, for the and in the manner indicated. Hence a perpurpose missive way for a direct passage across a railroad track, will not authorize the person so using it to stop on the track, or to loiter or play thereon. Where persons are using a permissive way across a railroad, at the invitation of the company, and under such circumstances as in law to affect the company with notice of their presence, the rule of law is, that the company must exercise toward them, such care as reasonably careful and prudent persons would exercise under like circumstances. But where persons are using such permissive way, without such invitation of the company, and only upon the permission or silent acquiescence of the company, the rule of law is the same as in the case of mere trespassers; that the company will be held liable only for such injuries as arise from its gross negligence or wanton disregard of human life. In such case the user crosses the railway at his own risk, and subject to all the perils of the way. CHARGE OF COURT. This doctrine is supported by the highest authority and is based upon sound reason. It would be unreasonable to hold, that a person who of his own will and for his own convenience enters upon the land of another, and because he is not ordered off of the premises by the owner of the land, that by such forbearance on the part of the owner, he should acquire such a status, as to impose upon such owner the duty to see that the way is safe for such gratuitous licensee, and that no accident should befall him while thus using the premises for his own convenience. How much more reasonable to hold, that such gratuitous licensee should proceed at his own risk, with every sense alert for his own protection, save only as against wanton negligence on the part of the owner. Any other doctrine would impose unreasonable burdens upon a merely private owner of land; but where the owner is the operator of a public line of railway, with tracks and numerous sidings, of necessity open to the public in country, town and city, it would impose intolerable burdens, and require an enormous force of employees, to watch and guard every possible opening along its lines, and would so cripple the movement of trains, as to make rapid transit a matter of impossibility. This is irrespective of the added danger to all travelers by rail that would arise from obstructions and accidents thus encouraged, on the part of careless users of railroad premises. "Indeed the doctrine that a naked license, or permission to enter upon one's premises, will not create a duty or impose an obligation on the part of the owner toward the licensee, to provide against danger or accident, is so elementary that it cannot be questioned. Morgan vs. The Pa. R. R. Co., 7 Fed., 78; Nicholas vs. Wash. etc. R. R. Co., 83 Va., 99. What, then, amounts to an invitation in law? It is claimed in this case that the defendant company frequently left openings between the cars, on the said easterly siding, among other places at or about the place of the injury; thus invit |