| Mass. | Jun 28, 1882
The instructions given were in accordance with the law as laid down in Sweeny v. Old Colony & Newport Railroad,
The distinction between an inducement or invitation, on the one hand, and a license or permission, on the other, was somewhat elaborately discussed in the opinion in Sweeny v. Old Colony § Newport Railroad. A single extract from that opinion is as follows: “ It cannot in any just view of the evidence be said that the defendants were passive only, and gave merely a tacit license or assent to the use of the place in question as a public crossing. On the contrary, the place or crossing was situated between two streets of the city, (which are much frequented thoroughfares,) and was used by great numbers of people who had occasion to pass from one street to the other, and it was fitted and prepared by the defendants with a convenient plank crossing, such as is usually constructed in highways, where they are crossed by the tracks of a railroad, in order to facilitate the passage of animals and vehicles over the rails. It had been so maintained by the defendants for a number of years. These facts would seem to bring the case within the principle already stated, that the license to use the crossing had been used and enjoyed under such circumstances as to amount to an inducement, held out by the defendants to persons having occasion to pass, to believe that it was a highway, and to use it as such.” That case, as the court say, did not rest on these facts alone, but we think this is a correct statement of the law, and the authorities are cited in that opinion.
The exceptions in this case do not purport to give all the instructions which the court gave, but only the instructions upon the subjects embraced in the request of the 'defendant; neither do they purport to give all the evidence upon the question whether the defendant corporation had held out this crossing as
The court gave in substance all that is contained in the first request of the defendant, unless the words “or would not have been struck if he had kept wholly upon the planking or paving ” be taken to mean that the plaintiff cannot recover, although struck while on the planking or paving, if at any time he had been off the planking or paving while crossing, and if his position on the planking and paving, if he had not been off, would have been such that he would not have been struck. If these words mean this, they ought not to have been given. The manner in which the plaintiff crossed the tracks may be evidence upon the questions whether he was in the exercise of due care, and whether the defendant exercised due care toward him; but, apart from this, it was no defence to prove that, at some time before the accident, the plaintiff had been where he had no right to be, or that, if the plaintiff had taken some other course, he would not have been struck.
The second request relates only to a part of the evidence, and the court was not bound to give instructions as to the effect of a part of the evidence.
The third and fourth requests in part were given as follows: “ that if it was held out as a suitable crossing for foot passengers, it would only permit foot passengers to use the crossing to the same extent to which the railroad had held it out and prepared it for use; it would not allow foot passengers to go either on one side or the other of the planking or crossing as prepared for use by the railroad, and cross the track in any other direction or in any other mode.” The remainder of these requests, to the effect that, if the facts set out could operate as an invitation or inducement, they could only operate as an invitation or inducement to use the crossing with the protection actually provided and arranged, and did not create any obligation or duty to provide additional protection, was rightly refused, and the instructions given in place thereof were correct. Bradley v. Boston & Maine Railroad, 2 Cush. 539. Linfield v. Old Colony Railroad, 10 Cush. 562.