Hoar, J.

The instruction to the jury which the plaintiff asked at the trial was rightly refused, because it assumed as a matter of law what does not appear to have been true, even as a matter of fact. Tfif3 facts reported do not show that it was proved, and the court were not called upon to decide, that “ the defendants, by obstructing the highway with the car, were making an unlawful use thereof.” If a railroad track were unlawfully laid *309along or across a highway, it would not follow that moving a car upon it was an obstruction of the highway, or an unlawful act. The track was not placed there by the defendants.

The instructions given by the court in relation to the degree of care required of the plaintiff, and as to the care which the defendants were bound to exercise, under the circumstances shown by the evidence, were carefully guarded, and not prejudicial to the plaintiff. But she now objects to the direction given to the jury, “ that they were not required to determine whether or not there was an existing highway there, as claimed” by her, because she contends that the kind and degree of care which the defendants were bound to exercise would be different in the one case from the other. It is true that what is reasonable care must depend upon the peculiar circumstances of the case, and that sometimes that would not be reasonable care in respect to the use of a highway, which would be sufficient elsewhere. But -it is evident, in the case at bar, that the question whether a highway did or did not exist at the place where the accident occurred, had nothing to do with the issue before the jury. The plaintiff was not employed in abating a nuisance, or asserting a right. Her tender age made her incapable even of understanding the difference between a way and any other territory. She was not using it as a way. And, on the other hand, the defendants were not responsible for the existence of the railroad, at that place, or for its encroachment upon the rights of the public, if its location were unlawful. All the facts and circumstances relating to its actual condition, construction and use were laid before the jury, and the defendants were held responsible for so much care as those facts and circumstances required. It was shown to be a travelled place, and whether it were originally a highway, town way or private way, seems to us to have been immaterial.

Exceptions overruled.