suming that it was used with the full assent of the owners of the soil." As to the permissive way and implied license, see Dublin, etc., R. R. Co. v. Slattery, L. R., 3 App. Cas. 1155; Illinois C. R. R. Co. v. Hammer, 72 Ill. 347; Townley v. C., M. & St. P. R. R. Co., 53 Wis. 626; Bateman v. Block, 14 E. L. & Eq. 69. The criterion of the defendant's duty was at least ordinary care, and this was a question for the jury. Kay v. R. R. Co., 15 Sm. 269; Hugett v. R. R. Co., 11 Harr. 373; R. R. Co. v. Spearen, 11 Wr. 305; Smith v. O'Connor, 12 id. 218; R. R. Co. v. Doak, 2 Sm. 381; Pass. R. R. Co. v. Henrice, 11 Norr. 431; Goshorn v. Smith, id. 438; R. R. Co. v. Fortney, 9 id. 323; R. R. Co. v. Morgan, 1 id. 134; West Chester & Phila. R. R. Co. v. McElwell, 67 Penn. St. 311; Penn. R R. Co. v. White, 7 Norr. 327. Especially is this the case where the person exposed to danger is a child of tender years. Lynch v. Nurdin, i Q. B. 29; R. R. Co. v. Spearen, supra; R. R. Co. v. Lewis, 29 Sm. 44; Kay v. P. R. R. Co., supra. What is a reasonable rate of speed for a railroad train at a crossing is a question for the jury. D., L. & W. R. R. Co. v. Smith, 28 Leg. Int. 101; Penn. R. R. Co. v. James et ux., 32 Sm. 194. Railroad companies running their trains through cities or populous towns are held to a degree of care commensurate with the danger involved. T. W. & W. R. R. Co. v. Harmon, 47 Ill., supra; Johnson v. Hudson River R. R., 6 Duer, 633; Daley v. Norwich & Worcester R. R. Co., 25 Conn. 595; Langan v. St. Louis, etc., R. R. Co., 3 Am. & Eng. R. R. Cases, 356. In an action against a railroad company for negligence, held that evidence of the speed of the train as judged by the sound was admissible. Van Horn v. Burlington & Cedar Rapids R. R. Co., 59 Iowa, 33; see, also, Reeves v. R. R. Co., 6 Casey, 454. In an action to recover damages for alleged negligence, proof of the violation of a city ordinance does not establish negligence per se. It is competent evidence upon the question to submit it to the jury, but not conclusive. Knupfle v. Knickerbocker, 84 N. Y. 488; see, also, Biesegel v. N. Y. C. R. R. Co., 14 Abb. Pr. 49; Massoth v. D. & H. C. Co., 64 N. Y. 524. In an action against a railroad company for negligence, a city ordinance regulating the speed of trains may be proved, although the existence of the ordinance is not pleaded. Faber v. St. Paul R. R. Co., 29 Minn. 465.

Wm. H. Jessup and Horace E. Hand, for defendants in error. "In actions for injuries not based on contract, the burden of proof of negligence is on the plaintiff." Whart. Neg., § 421. "A mere scintilla of evidence is not sufficient, but there must be proof of well-defined negligence." Cotton v. Wood, 8 C. B. (N. S.) 568; Whart. Neg. 568; Penn. R. R. Co. v. Weber, 26 Smith, 157; D., L. & W. R. R. Co. v. Nupheys, 90 Penn. St. 142. If there is no sufficient proof of negligence, the court must take the case away from the jury. Phila. & Reading v. Yeager, 23 P. F. S. 121; Phila. & Reading v. Heil, 5 W. N. C. 91; Clark v. Phila. & Reading R. R. Co., id. 119; Penn. R. R. Co. v. Fries, id. 541; Goshorn v. Smith, 92 Penn. St. 435; Parrot v. Webbs, 15 Wall. 524; Howard Ex. Co. v. Wile, 64 Penn. St. 201; Longnecker v. Penn. R. R. Co., 42 Leg. Int. 59; Hyatt v.

Johnson, 10 Norr. 196; Phila. & Reading R. R. Co. v. Yeager, 73 Penn. St. 121; Ryder v. Wombwell, L. R., 4 Exch. 32. The defendants had a right to a clear track at all points upon their road, except at public crossings. See Phila., etc., R. R. Co. v. Hummell, 44 Penn. St. 375. Only such aggravated negligence as amounts to intentional mischief on the part of the railway will render it liable in the event of an injury to a trespasser. See Jeffersonville, etc., R. R. Co. v. Goldsmith, 47 Ind. 43; La Fayette, etc., R. R. Co. v. Huffman, 28 íd. 287; Cincinnati, etc., R. R. Co. v. Eaton, 53 id. 310; Evansville, etc., R. R. Co. v. Wolf, 59 id. 89; Kenyon v. N. Y., etc., R. R. Co., 5 Hun, 479; Green v. Erie Ry. Co., 11 id. 333; Baltimore, etc., R. R. Co. v. Schwindling, 101 Penn. St. 258; R. R. Co. v. Houston, 95 U. S. 697; Gaynor v. Old Colony R. R. Co., 100 Mass. 208; Pittsburgh, etc., R. R. Co. v. Collins, 87 Penn. St. 405. If the violation of the ordinance does not amount to negligence it cannot be deemed to constitute a ground of civil liability. Phila. & Reading v. Ervin, 36 Leg. Int. 244; Atkinson v. New Castle Water- Works, L. R., 2 Exch. Div. 441; Couch v. Steel, 3 E. & B. 402; Kirby v. Boylston, etc., 14 Gray, 249; Flynn v. Canton Co., 40 Md. 312; 2 Eng. & Am. R. R. Cas. 183, note.

STERRETT, J. In his opinion refusing to take off the compulsory nonsuit, the learned president of the common pleas concedes the case is a close one, but appears to think the judgment should be sustained on the ground that the child's unfortunate injury resulted from her own impetuosity and heedlessness, and not from any neglect of duty on the part of defendant company. If he is correct in this, the nonsuit was rightly entered. But plaintiff's contention is that the jury would have been warranted in finding negligence of the company defendant, from which the injury complained of resulted; that the testimony tended to prove such facts and circumstances as bring the case within the general principle recognized and approved by this court in Phila delphia & Reading Railroad Company v. Trautman, 11 W. N. C. 453, in which it is ruled that where a person crosses a railroad track by a common and well-known foot-path, used by the public for many years without let or hindrance on the part of the railroad company and its employees, he cannot be regarded as a trespasser; and where it is shown, as was done in this case, that the foot-path across the company's land has been habitually used by the public for many years without objection, it is for the jury to say whether the company has not acquiesced in such use.

While such user does not convert the company's right of way into a public highway, it certainly does relieve persons passing over the same from being treated as trespassers on the company's premises; and there is a manifest distinction between the degree of care which a railroad company is bound to exercise toward mere trespassers and those who may be using the right of way by tacit consent or implied permission of the company. In the case of such long-continued user by the public, the company and its employees are charged with notice of the fact, and, therefore, cannot, with impunity, neglect precautions to prevent danger to persons thus using the same. In Barry v. Rail

road Co., 92 N. Y., it is said: "The acquiescence of defendant for so long a time in the crossing of the tracks by pedestrians amounted to a license and permission by defendants to all persons to cross the tracks at this point. These circumstances imposed a duty on the defendant, in respect of persons using the crossing, to exercise reasonable care in the movement of its trains. The company had a lawful right to use the tracks for its business, and could have withdrawn its permission to the public to use its premises as a public way, assuming that no public right therein existed, but, so long as it permitted the public use, it was chargeable with knowledge of the danger to human life from operating its trains at that point, and was bound to such reasonable precaution in their management as ordinary prudence dictated to protect wayfarers from injury. The company, in such cases, is an actor at the time in creating the circumstances which imperil human life, and it would be an alarming doctrine that it was under no duty to exercise any care in the movement of its trains."

The principle clearly settled by the foregoing, and many other cases that might be cited, is that when a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point, not in itself a public crossing, it owes the duty of reasonable care toward those using the crossing, and whether in a given case such reasonable care has been exercised or not, is ordinarily a question for the jury under all the evidence.

Without undertaking to review the testimony on which plaintiff relied, we think the evidence is quite sufficient to warrant the submission of her case to a jury on the questions of permissive crossing at the point where she was injured, and whether, in the movement of its train, the company exercised that degree of care which, under the circumstances, it was in duty bound to do.

There was testimony tending to show the whistle was not sounded, bell was not rung, nor any warning given of the approach of the train by which plaintiff was struck. This was properly for the consideration of the jury; and, in view of all the circumstances, including the fact that the siding was occupied by a standing train of cars, and the main track thus out of view, we have no right to say the jury would not have found negligence in not warning those who might be in the act of crossing that the train was approaching. If plaintiff had been duly warned, either by sounding the whistle or ringing the bell, it is not at all probable she would have attempted to cross the track in the face of known danger. The question of contributory negligence does not arise in the case. The age of plaintiff at the time of the accident precludes that. If, under the evidence, she was not a trespasser on the premises of the company, the question is whether it was not their duty to give suitable warning of the approach of their train; and, failing to do that, whether they were not guilty of negligence, which was the proximate cause of the injury. The first and second specifications of error are sustained. There was no error in refusing to receive the evidence specified in the third and fourth assignments, and hence they are not sustained.

Judgment reversed, and a procedendo awarded.

LEHIGH VALLEY R. R. Co. v. BRANDTMAIER.

October 4, 1886.

CARE DUTY INSTRUCTIONS

CHARGE

SUPREME

RAILROAD CROSSING
COURT- REVIEW ERROR.
The care to be exercised by a railroad company in the running of its trains
must be measured by the circumstances.

Where a railroad crosses a much traveled highway, the company operating the road, as well as the public using the highway, is bound to exercise a degree of care commensurate with the danger. It is the duty of the company to give sufficient notice of the approach of its trains, and to moderate the speed to a rate consistent with the public safety. It is the duty of the traveler upon the highway, immediately before attempting to pass over the railroad crossing, to stop, look and listen for approaching trains.

In the event of particular instructions on a given point not being asked for, the supreme court will review upon the general effect of the charge and not upon sentences or paragraphs selected from it; if as a whole the charge was calculated to mislead, there is error in the record; if not, there is none.

Error to the court of common pleas of Luzerne county.

Brandtmaier attempted to pass over a railroad track at a public crossing in the town of White Haven; he was at the time driving in a sleigh; an approaching train struck the sleigh, injuring Brandtmaier; he brought suit for damages against the company operating the railroad; the verdict was for plaintiff.

G. L. Halsey, H. W. Palmer and E. P. & J. V. Darling, for plaintiff in error, cited West Phila. Pass. Ry. Co. v. Gallagher, 16 W. N. C. 412. There is no common-law duty on the part of a railroad company to station flagmen or maintain gates at public grade crossings. Phila. & Reading R. R. v. Killips, 88 Penn. St. 405; Stubley v. London, etc., R. R. Co., L. R., 1 Exch. 13. And see cases cited in 2 Wood Railway Law, 1313, n. 4. Where the statute makes it the duty of a railroad company to give signals as to ring the bell or blow the whistle on a train approaching a crossing, it is negligence per se for it not to do so; but otherwise not. 2 Wood Railway Law, 1319. Failure to blow whistle or ring bell not negligence per se. Kelley v. Hannibal, etc., R. R. Co., 13 Am. & Eng. R. R. Cases, 138. No rate of speed at which a railroad train may be run is negligence per se. Powell v. Missouri Pac. R. R., 8 Am. & Eng. R. R. Cases, 467. When the rate of speed at which a railroad car is run across a street is shown, it is for the jury to say whether, with regard to the safety of the public, that rate was reasonable. Howard v. St. Paul, etc., R. R., 9 Am. & Eng. R. R. Cases, 283; Railroad Co. v. Ritchie, id. 275. Where a traveler is injured in crossing a railway, negligence is not to be presumed against the company. Penn. R. R. Co. v. Goodman, 62 Penn. St. 329 (1869); Button v. Hudson River R. R. Co., 18 N. Y. 248. An instruction respecting the duty of a railway company. See Chicago, etc., R. R. v. Robinson, 106 IIl. 142; Weber v. N. Y. Cent. & Hud. River R. R., 58 N. Y.; West. & Atlantic R. R. v. King, 19 Am. & Eng. R. R. Cases, 253; Maryland Cent. R. R. v. Newberry, id. 261. As to negligence, see Phila. R. R. v. Sturger, 78 Penn. St. 219; Stone v. Sioux City, etc., R. R., 2 Dill. 294; R. R. v. Jones, 95 U. S. 439; Blythe v. Birmingham Water-works, 11 Exch. 784. A charge

which is calculated to mislead the jury is erroneous. Stall v. Meck, 70 Penn. St. 181. When the effect of the whole charge is to mislead, this court will reverse. Penn. R. R. v. Berry, 68 Penn. St. 372. The statement of an erroneous principle of law to the jury which had a direct operation on the evidence, and withdrew their attention from other points, is ground for reversal. Deal v. McCormick, 3 S. & R. 343. See O'Hara v. Richardson, 46 Penn. St. 385; Gregg Township v. Jamison, 55 id. 468; Bisbing v. Third Nat. Bank, 93 id. 79. As to the proper care to be exercised by one approaching a crossing of a railroad, see Beach Cont. Neg., § 163, p. 460; Penn. R. R. v. Ackerman, 24 Sm. 265; C. R. R. of N. J. v. Feller, 3 Norr. 226.

William S. McLean, for defendant in error. One about to go over a railroad across a public highway shall stop, look and listen before crossing, not immediately before crossing. Penn. R. R. v. Beale, 23 Sm. 506; Penn. R. R. v. Ackerman, 24 id. 265; Penn. R. R. v. Weber, 26 id. 157; Cent. R. R. v. Feller, 3 Norr. 226; Pierce Railroads, 344.

CLARK, J. It is the duty of a railroad company in the running of its trains to exercise care according to the circumstances, and where the railroad track crosses a much-traveled street or highway, the company, as well as the public, is bound to exercise a degree of care reasonably commensurate with the danger. It is the duty of the company, on the one hand, to give some sufficient notice of the train's approach, and to moderate the speed of the train to such rate as, under the circumstances, is reasonably consistent with the public safety; on the other hand, it is the imperative duty of the traveler to stop, look and listen for approaching trains before attempting to pass over; if he neglects this legal duty, or knowingly attempts to cross in front of a rapidly moving train, he takes his life in his own hands and assumes the risk of personal injury. The law does not designate the mode in which these precautions against injury on part of the company are to be exercised; there is, it may be conceded, no common-law duty on part of the company to station flagmen, or to maintain gates at public grade crossings, unless, indeed, under the particular circumstances, the public safety cannot otherwise be reasonably secured; but the fact that flagmen are not stationed at such a crossing, and that gates are not there maintained, are matters proper to be considered with other facts in a given case in determining the rate of speed which is reasonably consistent with the public safety. It was alleged in the court below, at the trial of this cause, and there was some evidence to show, that the train crossed Berwick street at an improper and an unusual rate of speed, and that no notice of its approach was given by the ringing of a bell, blowing of a whistle, or otherwise. The learned judge very properly submitted both of these questions to the jury. In his charge, after reciting the evidence bearing upon the question of the rate of speed, he says:

"When you have ascertained what the rate of speed was, you will then consider whether it was an unreasonable rate. There is no fixed rule which can guide you here. The duty of a railroad company as to the speed of its trains of course varies with the locality. What would