On March 10, 1971, the 20-year-old infant plaintiff, Christine Carrico, while walking on the abandoned passenger platform of the defendant, Penn Central Transportation Company in Auburn, New York, slipped and fell beneath the wheels of a passing train, losing both of her legs below the knee. From a jury verdict awarding her $175,000 and $25,000 to her mother for medical expenses and loss of her daughter’s services, the railroad has appealed, claiming that the action is barred by section 83 of the Railroad Law.
That statute provides, in pertinent part, that “ no person other than those * * * employed upon the railroad shall walk upon or along its track or tracks, except where * * * laid across * * * streets * * * in which case he shall not walk upon the track unless necessary to cross the same.” The defendant railroad’s argument that it owed no duty to plaintiff as a trespasser (see, e.g., Kline v. Long Is. R. R. Co., 13 N Y 2d 773; Keller v. Erie R. R. Co., 183 N. Y. 67; Wolf v. Smith, 39 A D 2d 926, affd. 32 N Y 2d 724) rests upon a misplaced interpretation of section 83 of the Railroad Law. As the Court of Appeals has pointed out, section 83 forbids persons (other than employees of the railroad) to walk upon or along its tracks and no matter how frequently repeated or how long such conduct continues a public way cannot be created along the tracks even. with the railroad’s acquiescence, since such conduct is expressly barred by the statute. The railroad is not prohibited, however, from inviting or permitting the public to cross its tracks and it may become a way open to public use, binding the railroad to exercise reasonable care to protect the safety of the public (Zambardi v. South Brooklyn Ry. Co., 281 N. Y. 516; Lamphear v. New York Cent. R. R. Co., 194 N. Y. 172) and to prevent injury to those who traverse those portions of the railroad’s premises permitted to become a public passageway (Danna v, Staten Is. R. T. Co., 252 App. Div. 776, affd. 277 N. Y. 714). Whether such acquiescence exists and is so long continued as to create a public way by invitation is a question of fact for the jury (Zambardi v. South Brooklyn Ry. Co., supra, p. 524).
" The facts in this record are essentially uncontroverted. The railroad platform, adjacent and parallel to the railroad’s tracks, upon which plaintiff was walking immediately before the accident, is approximately 20 feet wide, 200 feet long, and partially covered by an over-hanging canopy. It was covered on March *44010, 1971 with an accumulation of snow and ice 18 inches deep. There was a footpath through the snow made by others who had used the platform about two feet from and parallel to the platform’s edge. Several witnesses who lived in the immediate vicinity testified that for as long as they could remember the public had used the platform as a “ shortcut ” from the town to the residences on the other side. By failing to introduce any proof to the contrary, the railroad permitted the inference to be drawn that it had no evidence to negate its acquiescence in the use of its station platform by the public (Laffin v. Ryan, 4 A D 2d 21).
We recognize that most of the cited cases involve plaintiffs who were either walking along or on the tracks themselves, in which cases their actions were barred by the statute, or plaintiffs who were crossing the tracks, in which cases the railroad has been held liable if it acquiesced in permitting a public way to be created. The plaintiff in the case before us was walking on a station platform maintained, until abandoned, by the railroad expressly for the public to walk upon. We do not believe that plaintiff’s claim against the railroad should be barred by statutory language which, reasonably construed, only prohibits the public from walking “ upon or along its tracks ”, which are designed exclusively for use by the defendant’s trains. Again it must be emphasized that the plaintiff was walking, not upon or along the tracks, but upon a station platform constructed for the very purpose for which plaintiff was using it.
Further support for our conclusion that the railroad should be held to a standard of reasonable care where the facts reveal that the inhabitants of a town have constantly and persistently intruded upon and used a portion of a railroad’s property adjacent and parallel to its tracks as a means of reaching their homes, is found in the writings of some of the leading scholars in the area of torts. (See, e.g., Restatement, Torts 2d, § 334, Comment b, Illustration 3’ ; Harper and James, Law of Torts, § 27.3, p. 1437; Prosser, Law of Torts [4th ed.; 1971], § 58, pp. 360-361; 6B Warren’s Negligence, § 3.03[3], p. 788.)
With respect to the issues of negligence and contributory negligence, it is not determinative on the former that these station facilities may have been abandoned by the railroad some time before the happening of this accident (Skzypek v. Long Is. R. R. Co., 245 App. Div. 309, 249 App. Div. 629, affd. 275 N. Y. 508). The record is devoid of any act by the defendant, even to the extent of posting a sign, to warn the public to “ Keep off ” the subject premises. The undisputed evidence, and on this issue the plaintiff is of course entitled to every favorable *441inference, is that the station platform was unlighted, unfenced, unpasted and unshoveled. We cannot conclude that the jury's verdict was against the weight of the evidence on the issue of defendant’s negligence. Turning to the latter issue of contributory negligence, the plaintiff had a duty to protect herself from injury (1 Warren’s Negligence, Contributory Negligence, § 1, p. 418) and from known and realized danger (Underhill v. Major, 220 App. Div. 173, affd. 247 N. Y. 525). The resolution of this issue is exclusively within the province of the jury and we see no reason to interfere with their conclusion on the facts in this case.
We conclude, therefore, that the judgment should be affirmed.