20 R.I. 791 | R.I. | 1893
The declaration avers that there was on the day of the accident, and long before that time, a passageway or travelled road over and across the defendant’s railroad and its tracks and beyond, used by the public in crossing and recrossing said railroad, which user had for a long time theretofore been acquiesced in by the defendant.
The defendant demurs to the declaration because it does not set forth definitely for how long a period the use of this travelled road had been acquiesced in by the defendant.
We are of the opinion that it was not necessary for the plaintiff to aver definitely the length of time that such user had been so acquiesced, but that the allegation of the declaration is sufficient. Acquiescence in the use of the way for a length of time sufficiently long that the defendant may be presumed to have a knowledge of such use and to assent to it, is all that is required to charge it with the duty of exercising reasonable care for the protection of persons passing over such way across its tracks. Paterson’s Railway Accident Law, § 188, note 3. Clampit v. Chicago, St. Paul & Kansas City Railway Co. 50 N. W. Rep. 673.
Demurrer overruled.
