Thus we have illustrated the distinction in the books between a mere naked or bare license and that of the more substantial privilege or license which draws with it the obligation to provide against danger of accident, as well as to see to it that no positive act is done to produce injury. These two conditions run into each other by easy and imperceptible gradations, and it is not infrequently a difficult thing to determine where the one begins and the other ends. Every case is dependent, in a great measure, upon its own attendant and peculiar facts and circumstances. The Sutton Case, and others alluded to above, are good illustrations, showing the nature and characteristics of a naked license and the rights of persons entitled to no greater privilege. Sweeny v. Old Colony R. R. Co. affords an instance of the more substantial privilege or license which entails the obligation upon those granting or suffering it to actively guard the interests of those in the use of it. In that case the person was injured while attempting to cross a private way leading from one street to another. The railroad company had erected a convenient plank crossing, and kept a flagman at the end of it, which crossing had been used by the public several years, and it was decided that the inducement held out by the company created a license to persons so desiring to use it, and the company owed them the duty of active vigilance. In Murphy v. Boston & A. R. R. Co., 133 Mass. 121, the injury occurred at a private crossing, extending from one end of a street to its intersection with another, if extended, and affording a means of access to two of defendant's freight houses. It had been planked by the defendant, and used by large numbers of persons, both on foot and with vehicles. The plaintiff was a pupil at a public school, and had occasion to cross the track on the way to school. In determining the controversy, Mr. Justice FIELD, speaking for the court, said: "If there was evidence sufficient for the jury to find that the defendant held out the crossing as a suitable place for

foot passengers to cross, so that the plaintiff may be said to have attempted to cross as he did by the inducement or invitation of the defendant, then the instructions were correct; but, if the plaintiff attempted to cross merely by the license or permission of the defendant, then there must be a new trial." And it was concluded that the case was properly submitted to the jury.

So, in Swift v. Staten Island R. R. Co., 123 N. Y. 645 (25 N. E. 378). where the injury was to the plaintiff's daughter, a girl of fifteen years of age, while attempting to cross the defendant's track. At the place of the accident the track ran immediately in the rear of a cluster of houses, at one of which the girl was stopping. The house was separated from the track by a board fence six feet high, through which was a door used by the inmates to pass out, and thence across the track, for the purpose of depositing ashes and garbage in barrels kept on the north side, and to reach a highway, ferry, and store beyond. From near the rear of these houses a board or plank walk had been constructed across the railroad, and, though not a public walk or highway, it had been practically used as such by the people occupying the houses, and by others, for many years, with the knowledge and permission of the railroad company. Upon this state of facts the court reaffirmed the doctrine which had been previously announced, that where the public had for a long time notoriously and constantly been in the habit of crossing a railroad at a point not in a public highway, with the acquiescence of the railroad company, such acquiescence amounts to a license, and imposes a duty upon it, as to all persons crossing, to exercise reasonable care in the running of its trains, so as to protect them from injury; citing, in support thereof, Barry v. New York Cent. R. R. Co., 92 N. Y. 289 (44 Am. Rep. 377), and Byrne v. New York Cent. R. R. Co., 104 N. Y. 362 (58 Am. Rep. 512, 10 N. E. 539). The former of these cases involved the condition that the plaintiff's intestate

had a right of way across the company's track at the point where he was killed, which had been used by the public for years, and it was determined that such acquiescence amounted to a license and permission by the defendant to all persons to cross at such point, and that, so long as it permitted the use, it was bound to such reasonable precaution as ordinary prudence dictated in the management of its trains to protect wayfarers from injury. In the latter case there was an alley at the place where the plaintiff was injured, which was extensively used by the public without any objection on the part of the defendant, and it was left to the jury to determine in what manner the way was used by the public, and thereby to determine the obligation and responsibility of the railroad company as to whether it had acted with proper precaution and prudence in approaching the crossing. This case approves the doctrine of the Barry and distinguishes the Sutton Case. The doctrine of the New York and Massachusetts cases under discussion finds ample support elsewhere. It was applied in Iowa in the case of an accident occurring in the City of Des Moines. The employees of a packing-house and others had constructed a stairway down an embankment and a footway of ties across a ditch to the track of defendant, and from thence a footpath continued across the track, which was in daily use by a number of persons. The plaintiff was injured by a moving train while attempting to cross the track, and it was held that he was not a trespasser, but was entitled to all the rights and protection of one rightfully upon the track with the license of the defendant: Clampit v. Chicago, St. Paul & M. Ry. Co., 84 Iowa, 71 (50 N. W. 673).

So, in Pennsylvania, where plaintiff attempted to cross the track by a well-beaten path, used by the employees of a furnace and others as a short cut to a station and postoffice, and was injured, it was held that she could not be treated as a trespasser: Philadelphia, etc., R. R. Co. v. Troutman,

6 Am. & Eng. R. Cas. 117* To the same effect is Taylor v. Delaware Canal Co., 113 Pa. St. 162 (57 Am. Rep. 446, 8 Atl. 43). And in Texas, where an embankment, thrown up across a depression and occupied by three tracks of the company's railroad, had been long used by pedestrians as a footpath, it was held that such pedestrians could not be classed as mere trespassers to whom the company owed no duty whatever, and that greater care was exacted in the approach of trains than would be required at a place where there was no cause to apprehend their presence: Texas & Pac. Ry. Co. v. Watkins (Tex. Civ. App.), 26 S. W. 760. To the same purpose, see, also, Patterson, Ry. Acc. Law, §187; Illinois Cent. R. R. Co. v. Dick, 15 S. W. 665 (not officially reported); Townley v. Chicago, Mil. & St. P. Ry. Co., 53 Wis. 626 (11 N. W. 55); Whalen v. Chicago & N. W. Ry. Co., 75 Wis. 654 (44 N. W. 849); Johnson v. Lake Superior Transfer Co., 86 Wis. 64 (56 N. W. 161); Virginia Midland R. R. Co. v. White, 84 Va. 498 (10 Am. St. Rep. 874, 5 S. E. 573); Cahill v. Chicago, M. & St. P. Ry. Co., 20 C. C. A. 184 (74 Fed. 285); Harriman v. Pittsburg, etc., Ry. Co., 45 Ohio St. 11 (4 Am. St. Rep. 507, 12 N. E. 451); Young v. Clark, 16 Utah, 42 (50 Pac. 832); Le May v. Missouri Pac. Ry. Co., 105 Mo. 361 (16 S. W. 1049); Troy v. Cape Fear, etc., R. R. Co., 99 N. C. 298 (6 Am. St. Rep. 521, 6 S. E. 77); Seymour v. Central Vermont R. R. Co., 69 Vt. 555 (38 Atl. 236).

7. We come now to the application of the rule to the case in hand. To this end it will be necessary to take note of the conditions and circumstances under which the accident occurred, and to allude briefly to some of the testimony. The decedent was killed at the point of a rocky bluff, in passing which the general course of the defendant's main line is east

*NOTE.-At p. 123 of 6 Am. & Eng. R. R. Cas. is a note collecting many cases on the obligation of railroad companies to the public at crossings.-REPORTER.

and west. In constructing the roadbed a cut had been made in the side of the bluff, which was subsequently widened to admit of a wagon road between the track and the bluff. While a train of the defendant's freight cars was going west, some of them became derailed, and ran against the decedent, who was upon the opposite side of the wagon road from the track. A few feet east of the place of the accident a side track extends from the main line on the north, and runs easterly by a fish cannery, the property of Seufert Bros. Company. This was in use by the railroad company in shipping fish and other merchandise to and from the cannery. It was also used more or less as a siding for empty cars, which were set out and picked up as occasion demanded. The cannery is situated some 300 feet easterly from the place of the accident, and on the opposite side of the track is a mess house, belonging also to Seufert Bros. Company, used by the employees in said cannery and by men engaged in fishing. The wagon road runs between the mess house and the railroad, and at that point is some fifteen or twenty yards from the track, and upon a higher level. It continues thus west, until it reaches a point nearly opposite the side track, where it drops to a level with the main track, and approaches it so closely, passing through the cut, that it barely admits the passage of a wagon between the ties and the bluff. After continuing westward in this manner for some little distance, it again turns to the southward, away from the track. There is also a sleeping house used by the employees of Seufert Bros. Company, situated about a thousand feet west of the mess house, upon the same side of the railroad beyond the point of rock, and a dwelling house near it occupied by the members of the firm. The wagon road was constructed by the Seuferts, in 1885, by blasting and removing the rock. It was widened in 1886, and work was done upon it from time to time until much later.

Mr. T. J. Seufert describes the manner in which it was