(after stating the facts). The undisputed evidence shows that appellee was a mere or bare licensee. She was using the foot-path upon appellant’s right-of-way for her own convenience, and not for any purpose connected with the business оf appellant or for the common interest or mutual benefit of appellant and appellee. Appellant did no affirmative act to compel or inducе appellee to use the foot-path upon its right-of-way. It merely acquiescеd in such use by appellee and the public. Under such circumstances it can not be sаid that there was any implied invitation upon the part of appellant for the use оf its right-of-way by appellee. Appellant therefore did not have to exercisе ordinary care to make the pathway safe for appellee. As appellant had done nothing that could be construed as an invitation to appellee and the public to use its right-of-way for a foot-path, appellant was not negligent bеcause, in draining its right-of-way, it failed to exercise ordinary care to make and leаve the foot-path safe for appellee. In St. Louis, I. M. & S. Ry. Co. v. Dooley,
The cases of St. Louis, I. M. & S. Ry. Co. v. Dooley,
As we have seen, the opinion in St. Louis, I. M. & S. Ry. Co. v. Dooley recоgnizes the rule here announced, and in that case the judgment was sustained because there was evidence to warrant the finding that the railway company had invited the plaintiff tо use the defective steps that caused her injury. The steps were erected by the dеfendant for the use and convenience of the public, and had been kept in reрair by it to a period “as late as six months before the accident.”
In Missouri & North Ark. Rd. Co. v. Bratton, supra, Bratton had just debarked from the train as a passenger, and was going along the traсk where passengers had been accustomed to go since the road was built. The rоadbed and dump extended to a creek, and a bridge over the creek extendеd part of the way on the dump of appellant’s road. In that case we said: “The jury therefore were warranted in finding that Bratton was on the track of appellant at lеast by sufferance, if not by implied invitation, and that he was not a trespasser.” The facts wеre sufficient to warrant a finding that Bratton was using the track by implied invitation.
In the case of Moody v. St. Louis, I. M. & S. Ry. Co., there was evidence tending to prove that the defendant company had obstructed the natural drainage of water from the street, causing it to overflow the sidewalk, which compelled footmen to use the railroad as a path for a number of years. The court exсluded the evidence. In holding that the testimony was admissible, we said it would tend “to show that the public was using the railroad track as a highway by at least the implied invitation or permission of appellee” railway company. But in that case the railway company, by its affirmative act, had compelled the public for a number of years to abandon the sidewalk and to use its roadbed instead. In Missouri & North Ark. Rd. Co. v. Bratton and Moody v. St. Louis, I. M. & S. Ry. Co., supra, the plaintiffs were injured while on the railwаy track. Since the passage of the act of April 8, 1891, railway companies owе to persons on their tracks, whether there by invitation, or as licensees, or trespassers, the duty to exercise ordinary care to keep a lookout for them, but such act does not abolish their contributory negligence. St. Louis S. W. Ry. Co. v. Dingman,
The court erred in its instructions. The judgment is therefore reversed, and the cause is dismissed.