Pitts., F. W. & C. R. W. Co. et al. v. Bingham, Adm'x. 3 Best & Sm. 244; Hardcastle v. The South Yorkshire Ry. Co., 4 Hurlst. & N. 67; Swceny v. Old Colony and Newport R. R. Co., 10 Allen, 372; Knight v. Abert, ő Barr, 472; Roscoe's Ev. at Nisi Prius, 719 In Southcote v. Stanly, 1 Hurlst. & N. 247, L. J. 25 Ex. 339, a visitor at defendant's house was injured by the falling of a glass door, through the negligence of the defendant. It was held that the plaintiff having, pro hac vice, become an inmate of the defendant's family, a rule similar to that of fellow-servants applied. In Peirce v. Whitcomb, 48 Vt. 127, plaintiff and defendant went to defendant's barn, at night, to measure up some oats, which the defendant sold to the plaintiff for the latter's accommodation, having none he wished to sell. While the defendant was looking for a measure, the plaintiff, walking about the barn in the dark, fell through a hole in the floor, and was injured. It was held he could not recover. But, if such dangerous place or pitfall or excavation is by the side of a public road or footway, along, or over which, the public have the right, and are accustomed to travel, it becomes the duty of the owner to adopt suitable and reasonable precautions to guard the public against injury resulting from the proximity of such dangerous place to the highway thus rightfully enjoyed. Barnes v. Ward, 67 Eng. C. L. 393; Firmstone v. Wherley, 2 D. & L. 208, Pollock, B.; Corby v. Hill, 4 C. B., N. S. 556; Hargreaves v. Deacon, 25 Mich. 5; Young v. Harvey, 16 Ind. 314; Mullen v. St. John, 57 N. Y. 567. Or, if a structure is erected near the line of another's land, and falls over on it to his injury, the owner of the structure is liable. Schwarts v. Gilmore, 45 Ill. 455; Shearm. & Redf. on Neg., par. 498. The principle underlying the cases above cited recognizes the right of the owner of real property to the exclusive use and enjoyment of the same without liability to others, for injuries occasioned by its unsafe condition, where the person receiving the injury was not in or near the place of danger by lawful right; and where such owner assumed no responsibility for his safety by inviting him there, without Pitts., Ft. W. & C. R. W. Co. et al. v. Bingham, Adm'x. giving him notice of the existence or imminence of the peril to be avoided. In such cases the maxim sic utere tuo ut alienum non lædas is in no sense infringed. In its just legal sense it means "so use your own property as not to injure the rights of another." Where no right has been invaded, although one may have injured another, no liability has been incurred. Any other rule would be manifestly wrong. Actionable negligence exists only where the one whose act causes or occasions the injury owes to the injured person a duty, created either by contract or by operation of law, which he has failed to discharge. In Burdick v. Cheadle, 26 Ohio St. 393, the owner of a store building had leased it to a tenant, who was in the occupancy of the same, selling goods therein. Certain shelvings and fixtures not properly secured, fell, and injured the plaintiff, a customer of the tenant, for which injury the customer brought an action against the landlord. It was said by McIlvaine, J., that there was no privity between the owner of the property and the plaintiff, and that the former owed no duty to the latter which was violated by a careless construction or fastening of the fixtures; and that the fact that the room was to be kept open to the customers of the tenant did not affect the question. But the question naturally arises, to what extent does the right of a railroad company to the control and use of its real property differ from that of a general owner of land not burdened or incumbered with a public charge? What restrictions and limitations are imposed upon the use and enjoyment of the real property of the company that do not exist in the case of the ownership of property not employed for public purposes? These questions are not difficult to answer. The right to the possession and control of the property of a railroad corporation for all purposes contemplated by its charter, and to enable it to accomplish the VOL. XXIX-24 Pitts., Ft. W. & C. R. W. Co. et al. v. Bingham, Adm'x. objects for which it was created, is indispensable to the proper discharge of the duties it owes to the public. By accepting a grant of corporate power from the state, it bound itself to do and perform certain things conducive to the public welfare. And those things consist principally in the duty to carry and transport persons and property from one point on its road to another, under such reasonable rules and regulations as it may prescribe to itself, or as may be prescribed by more general law. The obligation to carry, thus assumed, can not be disregarded or rejected at pleasure. It is an indispensable condition to the right to exercise corporate functions. The duty to carry is correlative to the existence of the corporate power of the company, and ceases only with a surrender of its corporate privileges. It is, therefore, a right that the public have to enter upon the premises of the company at points designed or designated for receiving passengers, and upon compliance with the rules governing the transportation of persons to be carried over its road to such points thereon as they may desire. The right of the public to enter is co-extensive with the duty of the company to receive and carry. It, however, can not be extended beyond this. For all purposes not connected with the operation of its road, the right of the company to the exclusive use and enjoyment of the corporate property is as perfect and absolute as is that of an owner of real property not burdened with public or private easements or servitudes. The case of Nicholson, Administratrix, v. The Erie Railway Co., 41 N. Y. 525, rests upon this principle. The company had left on a branch track four empty cars and one loaded one. The brakes to the four cars were not set or secured, and they were started by a violent wind and ran against the loaded car, propelling it forward and causing it to run against and over the plaintiff's intestate, who was upon the track, killing him. The place where the branch track was constructed, was open and unfenced, and was Pitts., Ft. W. & C. R. W. Co. et al. v. Bingham, Adm'x. customarily used by the people in the vicinity as they had occasion to use it, without objection by the company. The court instructed the jury that it was the duty of the company to set the brakes, and that if it left the cars without doing so, or otherwise securing them, it was a violation of duty on its part. This instruction was held erroneous. It is said in the opinion that no relation existed between the company and the deceased creating any particular duty, and that the company "had the same unqualified right which every owner of property has, to do with his own as he pleases, and keep it and use it where and as he pleases, on his own ground, up to the point when such use becomes a nuisance." It is doubtless true that a railroad company, by erecting station-houses and opening them to the public, impliedly license all persons to enter. But it is equally true that such license is revocable at the pleasure of the company as to all persons who are not there on business connected with the road, or with its servants or agents. Commonwealth v. Powers, 7 Met. 596; Nicholson v. The Erie Railway Company, supra, 532. In Harris v. Stevens, 31 Vt. 90, it is said: "The right to enter (a depot) and remain, exists only by virtue of, and as incident to, the right to go upon the train, and it is to be extended so far only as is reasonably necessary to secure to the traveler the full and perfect exercise and enjoyment of his right to be carried upon the cars." An implied license to enter a depot creates no additional duty upon the part of the company as respects the safety of the building entered. Its only effect is to make that lawful, which, without it, would be unlawful. Wood v. Leadbitter, 13 M. & W. 838. It is a waiver or relinquishment of the right to treat him who has entered as a trespasser. In Sweeny v. Old Colony and Newport Railroad Company, 10 Allen, 372, the court say: "A licensee, who enters on premises by permission only, without any enticement, allurement, or inducement being held out to him by the owner Pitts., Ft. W. & C. R. W. Co. et al. v. Bingham, Adm’x. or occupant, can not recover damages for injuries caused by obstructions or pitfalls. He goes at his own risk and enjoys the license subject to its concomitant perils." "Noduty is imposed by law on the owner or occupant to keep his premises in a suitable condition for those who come there solely for their own convenience or pleasure, and who are not expressly invited to enter, or induced to come upon them by the purpose for which the premises are appropriated or occupied." The inducement here spoken of must. be equivalent to an invitation to enter. Carlton v. Franconia Iron and Steel Co., 99 Mass. 216. Mere permission is neither inducement, allurement, nor enticement. The case of Tobin v. The P. S. & P. R. R. Co., 59 Maine, 183, cited by defendant's counsel, instead of supporting the defendant's claim, sustains the opposite. The plaintiff was a hackman, carrying passengers to the cars, and while stepping from his carriage to the platform, was injured by a defect in the latter, occasioned by a want of ordinary care in the company. A recovery was sustained, on the ground that a "hackman carrying passengers to the railroad depot for transportation, and aiding them to alight upon the platform of the company, is as rightfully upon the same as the passengers alighting." A recovery was also sustained in Toledo, Wabash and Western Railway Co. v. Grush, 67 Ill. 262, for an injury to the defendant, resulting from stepping accidentally through a hole in the platform, carelessly left open, the defendant being at the depot looking for freight belonging to his employer. The case of Gillis v. Pennsylvania Railroad Co., 59 Penn. St. 129, fully sustains the position and claim of the plaintiffs. It was there held that the platform of a railroad company, at its station, is in no sense a public highway; that it is not dedicated to public use; that it is for the accommodation of passengers; but, being uninclosed, persons have the privilege, but not the legal right of walking over it for other purposes; and that "the owner is not liable to a trespasser, or one who is on his property by |