§ 327. A person who by invitation, express or implied, induces another to come upon his premises is responsible for injuries caused by dangers known to the owner and not to the other person.

The facts disclosed by the pleadings, and by the demurrer conceded to exist, seem to bring this case within the rule founded in justice and necessity, and illustrated in many adjudged cases in the American courts that the owner or occupant of land who, by invitation, express or implied, induces or leads others to come upon his premises, for any lawful purpose, is liable in damages to such persons - they using due care they using due care for injuries occasioned by the unsafe condition of the land or its approaches, if such condition was known to him and not to them, and was negligently suffered to exist, without timely notice to the public or to those who were likely to act upon such invitation. Railroad Company v. Hanning, 15 Wall., 649 (§§ 923-26, infra); Carleton and others v. Franconia Iron & Steel Co., 99 Mass., 216; Sweeny v. Old Colony & Newport Railroad Co., 10 Allen (Mass.), 368; Wharton, Negligence, secs. 319352; Cooley, Torts, 601-607, and authorities cited by those authors. The lastnamed author says that when one "expressly or by implication invites others to come upon his premises, whether for business or for any other purpose, it is his duty to be reasonably sure that he is not inviting them into danger, and to that end he must exercise ordinary care and prudence to render the premises reasonably safe for the visit."

The rule is also illustrated in many cases in the English courts, some of which it may be well to examine. One, referred to by this court in Railroad v. Hanning, is Corby v. Hill, 4 C. B. (N. S.), 562. That was an action for an injury sustained by the plaintiff while traveling upon a private way leading from a turnpike road to a certain building, and over which parties having occasion to visit such building were likely to pass, and were accustomed to pass, by leave of the owners of the soil. The defendant negligently obstructed the way by placing thereon certain materials without giving notice or warning of the obstruction by light or other signal, and by reason thereof the plaintiff's horse was driven against the obstruction and injured. One of the pleas was that the defendant had placed the materials on the road by the license or consent of the owners of the soil. Upon the argument of the case counsel for the defendant contended that the owners of the soil, and consequently, also, any person having leave or license from them, might, as against any other person using the way by the like leave and license, place an obstruction thereon. without incurring responsibility for injury resulting therefrom, unless in the case where an allurement or inducement was held out to such other person to make use of the way. Upon the general question, as well as in response to this argument, Cockburn, C. J., said: "It seems to me that the very case from which the learned counsel seeks to distinguish this is the case now before us. The proprietors of the soil held out an allurement whereby the plaintiff was induced to come upon the place in question; they held out this road to all persons having occasion to proceed to the asylum as the means of access thereto. Having, so to speak, dedicated the way to such of the general public as might have occasion to use it for that purpose, and having held it out as a safe and convenient mode of access to the establishment, without any reservation, it was not competent for them to place thereon any obstruction calculated to render the road unsafe, and likely to cause injury to those persons to whom they held it out as a way along which they might safely go. If that be so, a third person could not acquire the right to do so under their

license or permission." In the same case Williams, J., said: "I see no reason why the plaintiff should not have a remedy against such a wrong-doer just as much as if the obstruction had taken place upon a public road. Good sense and justice require that he should have a remedy, and there is no authority against it." Wills, J., remarked: "The defendant has no right to set a trap for the plaintiff. One who comes upon another's land by the owner's permission or invitation has a right to expect that the owner will not dig a pit thereon, or permit another to dig a pit thereon, so that persons lawfully coming there may receive injury."

Another case often cited is Chapman v. Rothwell, 1 El., B. & E., 168. The declaration there charged that the defendant was in possession and occupation of a brewery, office and passage leading thereto from the public street, used by him for the reception of customers and others in his trade and business as a brewer. The passage was the usual and ordinary means of ingress and egress to and from the office, from and to the public street. The defendant negligently permitted a trap-door in the floor of that passage to be and remain open, without being properly guarded and lighted. The plaintiff's wife had been to the brewery office as a customer in the defendant's business, and was walking along the passage on her return to the public street, when she fell through the trap-door and was injured and killed. Upon the argument counsel for defendant insisted that no facts appeared showing it to be the duty of the defendant to keep the trap-door closed. To this Erle, J., replied, with the sanction of Lord Campbell, C. J.: "If you invite a customer to come to your shop, and leave a pitfall open, or a large iron peg in the part of the floor over which the customer is likely to tread, is not that a duty and a breach, if accident ensues?" The court there drew a distinction between the case of a mere visitor, as in Southcote v. Stanley, 1 H. & N., 247, and a customer, who, as one of the public, is invited for the purposes of business carried on by the owner or occupier of the premises.

In Indermaur v. Dames, Law Rep., 1 C. P., 274, and 2 id., 313, the court, referring to the class of persons who visit premises upon business which concerns the occupier, and upon his invitation, express or implied, said that it was settled law that a visitor of that class, "using reasonable care on his part for his own safety, is entitled to expect that the occupier shall, on his part, use reasonable care to prevent damage from unusual danger which he knows or ought to know, and that, where there is evidence of neglect, the question whether such reasonable care has been taken by notice, lighting, guarding or otherwise, and whether there was contributory negligence in the sufferer, must be determined by a jury as a matter of fact."

In Lancaster Canal Co. v. Parnaby, 11 Ad. & El., 230, which was the case of a company making a canal for their profit and opening it to public use on payment of tolls, it was held by the exchequer chamber that the common law, in such a case, imposed a duty upon the proprietors, not, perhaps, to repair the canal or absolutely to free it from obstructions, but to take reasonable care, so long as they kept it open for the public use of all choosing to navigate it, that they may navigate it without danger to themselves or property.

The same principle was applied by the exchequer chamber in Gibbs . Trustees of the Liverpool Docks, 3 H. & N., 164. That was an action by the owners of a ship to recover for an injury done to the cargo by reason of the ship, when entering, having struck a bank of mud carelessly and negligently left in and about the entrance to the dock. The defendants were not individ

ually profited by the operations of the company, of which they were trustees, but, by statute, were bound, as such trustees, to apply the tolls received in maintaining the docks and in paying the debt contracted in making them. The court, speaking by Coleridge, J., held that, whether the defendants received the tolls for a beneficial or fiduciary purpose, the knowledge, upon their part, that the entrance to the dock was dangerous, imposed upon them the duty of closing the dock against the public as soon as they became aware of its unsafe condition; that they had no right, with a knowledge of its condition, to keep it open and to invite the vessel in question into the peril which they knew it must encounter, by continuing to hold out to the public that any ship, on the payment of the tolls to them, might enter and navigate the dock.

The judgment was affirmed upon full consideration in the house of lords. 11 H. L. Cas., 686. In the opinion there delivered by Mr. Justice Blackburn on behalf of all the judges who heard the argument, among whom were Lords Cranworth, Wensleydale and Westbury, it was said: "For a body corporate never can either take care or neglect to take care except through its servants; and (assuming that it was the duty of the trustees to take reasonable care that the dock was in a fit state) it seems clear that if they, by their servants, had the means of knowing that the dock was in an unfit state, and were negligently ignorant of its state, they did neglect this duty and did not take reasonable care that it was fit."

We forbear further citation of authorities. It is clear that the rule which obtains in the English courts is in harmony with that generally recognized in the courts of this country.

We entertain no doubt that, upon the case as made by the pleadings, the railroad company is liable in damages. As the deceased did not purchase from the railroad company a through ticket, but only a ticket over its line. from Vernon to Danville station, it may be argued that the relation of carrier and passenger which existed between the company and him terminated when he left the train at Danville station, and consequently that there was no breach of the company's contract of transportation. But there was, nevertheless, a breach of legal duty or obligation for which, as property owner, the railroad company is responsible.

$328. Distinction between invitation and license.

It cannot be pretended that Bennett, at the time he was injured, was in any sense a trespasser upon the premises of the company. Nor is this case, like many cited in the books, of mere passive acquiescence by the owner in the use of his premises by others. Nor is it a case of mere license or permission by the owner without circumstances showing an invitation extended, or an inducement, or, in the language of some of the cases, an allurement, held out to him as one of the general public. It is sometimes difficult to determine whether the circumstances make a case of invitation, in the technical sense of that word as used in a large number of adjudged cases, or only a case of mere license. "The principle," says Mr. Campbell, in his treatise on Negligence, "appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it."

As each case must largely depend upon its special circumstances, we shall not attempt to lay down a general rule upon the subject. It is quite sufficient to say that no difficulty of discrimination exists in the case before us. This

is the case of a traveler going upon a way which had been constructed and was maintained by a railroad company, in part for its own benefit and profit, to be used by all, without distinction, who desired, for purposes of business, to pass to and from the company's wharf-boat, moored at an established landing upon a public navigable river. The deceased, when injured, was using the premises for some of the very purposes for which they had been appropriated, and to which they had been, in a sense, dedicated by the owner. They were so situated, with reference to the river, and were so occupied and controlled by the company as not only to invite their use by the public, but practically to compel those having business at the river landing to abandon such business, or, in its prosecution, to pass over the route through the shed-depot. It was, therefore, the plain duty of the company to take such precautions, from time to time, as ordinary care and prudence would suggest to be necessary for the safety of those who had occasion to use the premises for the purposes for which they had been appropriated by the company, and for which, with its knowledge and permission, it was commonly used by the public.

We are all of opinion that the pleadings state facts sufficient to require an answer from the defendant. It is a case peculiarly for the consideration of a jury of practical men, who, under proper instructions, can best ascertain to what extent, if at all, under the circumstances actually existing, the railroad company was negligent in the discharge of any duty or obligation imposed by the law, and how far, if at all, the deceased was wanting in due care upon the occasion when he was injured.

To guard against misapprehension it is proper to remark also that we must not be understood as making the plaintiff's right of recovery dependent upon proof of every single fact averred in the pleadings, or which has been recited in this opinion. We have considered the case in the light of the facts as averred, and, by the demurrer, conceded to exist. Upon the trial, after issue joined, the court will have no difficulty, in view of what we have said, in determining whether the case as actually presented to the jury shows a breach of duty or legal obligation upon the part of the railroad company for which it may be liable in damages.

The judgment will be reversed, and the cause remanded with directions to overrule the demurrer, and for further proceedings in conformity with this opinion; and it is so ordered.

329. Duty to keep boilers, cars, etc., in safe condition.- A railway company is bound to use every test recognized as necessary by experts to determine whether its locomotive boilers are in a safe condition; but it is not liable for injuries occurring through defects not discoverable by such tests. Robinson v. New York Central, etc., R. Co.,* 13 Rep'r, 357.

§ 330. A railway company running four-wheel cabooses that do not adjust themselves readily to the curves on the road is liable to one injured thereby. Palmer v. Denver & R. G. R. Co., 12 Fed. R., 392.

$331. Wagon road and street crossings — Duty of company and travelers Liability in case of collisions and accidents. If a railroad crosses a common road on the same level, those traveling on either have a legal right to pass the point of crossing, and to require due care on the part of those traveling on the other to avoid a collision. It cannot, however, be expected that the train will stop for a wagon; the latter must wait for the former to go by. But the train should give due warning, by bell or whistle, of its approach; and those in the wagon owe the duty of looking and listening for the train before crossing, and of observing especial care in case their sight or hearing be impaired or a view of the track be obstructed. Continental Imp. Co. v. Stead, 10 Ch. Leg. News, 121. See, also, Chicago, R. I. & P. R. Co. v. Hamilton, 10 Ch. Leg. News, 121. See §§ 301, 302.

§ 332. As plaintiff was approaching a crossing in a single wagon, over a road too narrow to turn around in, he did not at first hear or observe a locomotive slowly approaching and ring

ing its bell. The horse became frightened, refused to stop for plaintiff, who, deeming his only chance of escape to be to go in front of the engine, struck the horse, which bounded forward carrying the wagon except the hind wheels clear of the engine. These were struck, plaintiff was thrown forward some fifteen feet and was severely injured. Held, that the company was not liable, the engine moving slowly, with bell ringing, and the trouble appearing to have been due to plaintiff's failure to see or hear the approaching engine and to the excitability of his horse. Tucker v. Duncan,* 9 Fed. R., 867.

§ 333. It is the duty of the engineer of a switch-engine to ring the bell of the engine on approaching a crossing, especially if his engine is obscured from the view of people waiting at the crossing by another train or engine passing over the crossing at the same time. Whiton t. Chicago & N. W. R. R. Co.,* 2 Biss., 282.

§ 334. Two ladies waited at a street crossing of a railroad for the passage of a freight train running through a town at an illegal rate of speed. After it passed they started across and were run down by a switch-engine coming from a direction opposite to the freight. Held,' that the only effect of the freight train being there under the circumstances named was to modify the conduct of those on the switch-engine and of the ladies, and that the fault of the freight train was too remote to be regarded as the cause of the death of the two ladies. Ibid. § 335. It is the duty of those having the management of a switch-engine and train to cause the bell of the engine to be rung a sufficient time before crossing a street in a city to give warning to any passengers on that street desirous of crossing, and to keep it ringing until the tender has crossed the street. It is also the duty of those having the management of the train to keep a proper lookout in the direction the train is moving. Especially is this duty imposed on such persons where another train is approaching from an opposite direction. Ibid.

§ 336. A boy, seven or eight years of age, was struck by a freight train while upon the track of a railway laid through a public street, and died from injuries received thereby. The train was running at about seven or eight miles an hour, a rate of speed conceded to be reasonable for a train passing through a populous town. The engine was pushing the train from the rear, and steam and smoke from the engine shut out the view of those on the cars, preventing them from seeing the track ahead. Held, that in determining the question whether defendant's negligence caused the boy's death, it was for the jury to decide whether the train was running at an improper speed under the circumstances, subject to instruction by the court that at no time should trains be run at such a rate of speed through public streets that they could not be easily stopped in case of an obstruction. When the engine is at the rear of the train, and in pushing the cars, a proper lookout should be kept upon the front of the train. And when the view over the track ahead is obstructed by smoke and steam, then it is incumbent upon those in management of the train to redouble their diligence and run the train with greater caution. Barley v. Chicago & A. R. R. Co.,* 4 Biss., 430.

§ 337. Defective cattle-guards.- Where it is not the statutory duty of a railway company to build cattle-guards it is not liable for injuries to crops due to defective cattle-guards. Ward v. Paduch, etc., R. Co., 11 Rep., 256. See §§ 321-25.

§ 338. Injuries sustained while crossing track at other than public crossing.— Plaintiff was injured while crossing the defendant's track at a place known to be dangerous, instead of at the crossing provided by the defendant. Heid, that as the plaintiff had nothing more than a mere license to cross where he did, the defendant owed him no duty and was not liable for negligence. Morgan v. Penn. R. Co., 27 Int. Rev. Rec., 211. See §§ 239-42.

§ 339. while climbing over train which was standing across street.- Plaintiff found a train laying across the street on which he was going and attempted to go over it between the cars. It suddenly started and his foot was caught between the "bull-noses" of the coupling apparatus of the two cars and severely injured. Held, that the company should have given some signal of starting its cars, and that it was competent for the jury to consider whether it had been customary for the company to block that street crossing, and for its employees to permit travelers on the street to cross over or under the train. Grant v. Baltimore, etc., R. Co.,* 2 MacArth., 277.

§ 340. Railway fire - Defense.- Plaintiff, a boom company, owned lands on which were valuable pine forests, cranberry marshes, etc. Defendant negligently allowed fires from its right of way to extend to these trees and marshes, resulting in the destruction of valuable property. Held, that the railway company was liable, and could not set up in defense that the title to the lands had been acquired for purposes foreign to the object of the creation of the plaintiff corporation. Farmers' Loan & Trust Co. v. Green Bay & Minn. R. Co.,* 12 Fed. R., 773.

§ 341. Duty to fence against stock aud children.— The plaintiff alleged that the defendant was guilty of negligence in having the fence out of repair that incloses its railway track where said track runs through plaintiff's farm. That the defendant was required by law to keep a fence at that point, and that by reason of the negligence of the defendant in this re