WINTER SESSIONS,

1899.

JOHN WELDON, an infant, by his next friend, WILLIAM B. WELDON, vs. THE PHILADEPHIA, WILMINGTON AND BALTIMORE RAILROAD COMPANY, a corporation of the State of Delaware. License-Permissive Way-Infancy of Plaintiff-Damages--Negligence.

I. 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. A permissive way for a direct passage across a railroad track will not authorize the person so using it to stop or play thereon.

2.

Where persons are using a permissive way across a railroad track at the invitation of the company, and under such circumstances as in law to affect the company with notice of their presence, 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.

3. If openings are left by a railroad company between cars on its siding at or near a crossing, for its own convenience in shifting or placing cars upon such siding, even though such openings are quite uniformly left at or about such crossing, they would not amount to an invitation to the people to use the crossing, unless it should satisfactorily appear from the evidence that such openings were so made and left expressly for public accommodation. The presumption of law is that such openings were left for the convenience of the company, which presumption, however, may be rebutted by evidence which satisfies the jury to the contrary.

4. The general rule is that the care required of an infant in avoiding danger in any case is that which children of the same age of ordinary care and prudence

MOTION FOR NONSUIT.

would exercise in like circumstances, yet this is not an inflexible rule, but is to be modified according to the maturity and capacity of the infant, his ability to understand and appreciate the danger, and his familiarity with all the surroundings and conditions in each particular case; and it is for the jury to say whether under all such circumstances the infant exercised reasonable care.

(March 21, 1899.)

LORE, C. J., and PENNEWILL and BOYCE, J. J., sitting.

Lewis C. Vandegrift and Franklin Brockson for plaintiff.

Andrew C. Gray and Herbert H. Ward for defendant.

Superior Court, New Castle County, February Term, 1899. ACTION ON THE CASE (No. 68, September Term, 1897), to recover damages for personal injuries alleged to have been received by plaintiff August 8th, 1895, on the easterly side track of the defendant company, at Townsend, Delaware. The facts sufficiently appear in the charge of the Court.

At the conclusion of plaintiff's testimony, the defendant moved for a nonsuit on two grounds, viz:

First. That the plaintiff had not shown that there was any negligence on the part of the defendant company.

Second. That the plaintiff contributed to the accident by his own negligence.

After an extended argument, occupying more than a day, the Court rendered the following decision:

LORE, C. J.:-The Court have given the arguments pre-. sented with so much ability, yesterday and to-day, all the consideration our limited time enabled us to give, and we have reached the conclusion that the questions presented can be better dealt with by the Court in the charge to the jury. We decline to order a nonsuit.