charging the jury:
Gentlemen of the jury:—John Weldon, the plaintiff in this action, claims that on the eighth day of August, 1895, he was ten years, nine months and thirteen days old. That between four and five o’clock on the afternoon of that day, in running away from a drunken man in the town of Townsend in this county, he ran upon the easterly siding or track of the railroad of the defendant company, into an opening between two cars standing on the siding, at or near the point where Gray street of the said town intersects the said railroad. That the cars on the siding were standing still when he ran upon the track j that almost instantly, without blowing a whistle, ringing a bell or other warning, a shifting engine pushed the cars together, caught him between the cars, and so crushed his right shoulder and arm that they have withered and become wasted; that he is a cripple and maimed for life. That at the point where he was crossing the siding, many of the adults and children of the town, had been in the habit of crossing the railroad for a period of many years theretofore, with the knowledge and consent of the company, and without any objection whatever on the part of the company. That there was a pathway at that point, made by the persons so crossing the railroad, and that the company *10frequently left open spaces at that point between the cars on the siding through which the people so passed; thus inviting them to cross. That at the time of the accident he was using due care, and that his injuries resulted from the negligence of the company.
The defendant, on the other hand, contends that Gray street was not a public highway opened and in use across the land of the company at that point, and that there was no pathway recognized by the company at the place of the alleged injury; that on the contrary the alleged way was obstructed by a ditch and embankment. That the plaintiff was upon the land owned by the company in fee, and was a mere trespasser or licensee, and as such was using the crossing at his own risk and peril. That the company had no knowledge of the presence of the plaintiff on the siding, until after the accident; that therefore the plaintiff’s injuries were the result of his own carelessness.
It is admitted in this case on both sides, that this siding was located on land owned by the defendant company, and was used by the company in the prosecution of its business, at its convenience, for placing, loading and shifting cars, and that the place where the plaintiff was injured was upon the lands of the company.
Two controlling questions are presented for your consideration:
First. In what right was the plaintiff crossing the siding at the time of the injury ?
Second. What were the relative rights and duties of the plaintiff and the defendant, at that time and under the circumstances, growing out of the infancy of the plaintiff?
First. The plaintiff claims that he was crossing that siding under the protection of a permissive or implied license from the company itself, and even at the invitation of the company. It is therefore needful that you should understand what such a license means.
“A license is an authority to do a particular act or series of *11acts, on the land of another, without possessing any estate therein.” —11 Mass., 533.
“An implied license, is one which is presumed to have been given, from the words, acts or passive acquiescence of the party authorized to give it.”—% Bowoier Die., %%%.
Such a license must be established by proof, and is not to be inferred from equivocal declarations or acts of the owner of the land.—31 Atl. Rep. (Pa.), 310.
Such a license is revocable at the will of the grantor, unless it is either irrevocable in its terms, or is coupled with an interest.
A license to cross a railroad growing out of the mere passive acquiescence of the company, will be strengthened by any act of the company, which amounts to an inducement or invitation held out to the people to use the crossing. But such invitation must be some unequivocal act, done by the company indicating such purpose. A mere permission or license to cross is not such an invitation.—11$ Mass., 300. Such permission can only be used in any case, for the purpose and in the manner indicated. Hence a permissive way for a direct passage across a railroad track, will not authorize the person so using it to stop on the track, or to loiter or play thereon.
Where persons are using a permissive way across a railroad, at the invitation of the company, and under such circumstances as in law to affect the company with notice of their presence, the rule of law is, that the company must exercise toward them, such care as reasonably careful and prudent persons would exercise under like circumstances. But where persons are using such permissive way, without such invitation of the company, and only upon the permission or silent acquiescence of the company, the rule of law is the same as in the case of mere trespassers; that the company will be held liable only for such injuries as arise from its gross negligence or wanton disregard of human life. In such case the user crosses the railway at his own risk, and subject to all the perils of the way.
*12This doctrine is supported by the highest authority and is based upon sound reason. It would be unreasonable to hold, that a person who of his own will and for his own convenience enters upon the land of another, and because he is not ordered off of the premises by the owner of the land, that by such forbearance on the part of the owner, he should acquire such a status, as to impose upon such owner the duty to see that the way is safe for such gratuitous licensee, and that no accident should befall him while thus using the premises for his own convenience.
How much more reasonable to hold, that such gratuitous licensee should proceed at his own risk, with every sense alert for his own protection, save only as against wanton negligence on the part of the owner. Any other doctrine would impose unreasonable burdens upon a merely private owner of land; but where the owner is the operator of a public line of railway, with tracks and numerous sidings, of necessity open to the public in country, town and city, it would impose intolerable burdens, and require an enormous force of employees, to watch and guard every possible opening along its lines, and would so cripple the movement of trains, as to make rapid transit a matter of impossibility. This is irrespective of the added danger to all travelers by rail that would arise from obstructions and accidents thus encouraged, on the part of careless users of railroad premises.
“ Indeed the doctrine that a naked license, or permission to enter upon one’s premises, will not create a duty or impose an obligation on the part of the owner toward the licensee, to provide against danger or accident, is so elementary that it cannot be questioned.
Morgan vs. The Pa. R. R. Co., 7 Fed., 78; Nicholas vs. Wash. etc. R. R. Co., 83 Va., 99.
What, then, amounts to an invitation in law ?
It is claimed in this case that the defendant company frequently left openings between the cars, on the said easterly siding, among other places at or about the place of the injury; thus invit*13ing the people to cross there. If such openings were left by the defendant company for its own convenience, in shifting or placing cars upon its own siding, even though such openings were quite uniformly at or about the place named, such openings would not amount to an invitation to the people to use the crossing, unless you should be satisfied from the evidence in this case that such openings were so made and left expressly for the use of the people.
The company had a right to use its own siding in the prosecution of its business, and to leave openings between the cars on that siding when and where it pleased, so far as mere permissive crossers were concerned. Moreover the presumption of law is that such openings were left for the convenience of the company. This presumption, however, may be rebutted, if there be evidence which satisfies you that such openings were not left for the convenience of the company, but to accommodate the public.
We have dwelt thus fully upon this subject of a permissive way, because it involves questions somewhat new in this State, and never heretofore precisely adjudicated; and because it is a crucial point in the case. For we say to you, that if you should find from the evidence, that at the time of the accident John Weldon, the plaintiff, was crossing that railroad merely by the permission or acquiesence of the defendant company, he cannot recover in this case, unless you should find that the injuries of which he complains were the result of gross negligence or reckless or wanton carelessness on the part of the defendant; for in such case he went upon that crossing at his own risk and must take the consequences. The company would not be liable for the mere want of ordinary care.
We now turn to the second question.
What were the relative rights and duties of the plaintiff and the defendant at that time and under the circumstances growing out of the infancy of the plaintiff?
In Cleveland Rolling Mill Company vs. Corrigan, 20 N. E., 469, Judge Williams says: “We think it a sound rule, therefore, that in the application of the doctrine of contributory negligence to *14children, in actions by them or in their behalf, for injuries occasioned by the negligence of others, their conduct should not be judged by the same rules which govern that of adults; and while it is their duty to exercise ordinary care to avoid the injuries of which they complain, ordinary care for them is that degree of care which children of the same age, of ordinary care and prudence, are accustomed to exercise under like circumstances.”
In 1 Sherman and Redfield on Negligence, Section 73, it is considered that the rule is, “ now settled by the overwhelming weight of authority, that a child is held, so far as he is personally concerned, only to the exercise of such care and discretion, as is reasonably to be expected from children of his age.”
Judge Hunt in R. R. Co. vs. Stout, 17 Wallace, 651, adds this qualification : “ The care and caution required of a child is according to his maturity and capacity only, and this is to be determined in each case, by the circumstances of that case.”
Therefore while the general rule is, that the care required of an infant in avoiding danger in any case is that which children of the same age of ordinary care and prudence would exercise in like circumstances, yet this is not an inflexible, or as has been said, a hard and fast rule; but is to be modified according to the maturity and capacity of the infant, his ability to understand and appreciate the danger, and his familiarity with all the surroundings and conditions in each particular case; and it is for the jury to say whether under all such circumstances the infant exercised reasonable care.
The law upon these two points practically controls this case, and it is for you to apply the law as we have above stated it in reaching your verdict.
If you are satisfied from the evidence that, at the time of the accident, Weldon was crossing the railroad at the invitation of the company, and while so crossing was injured by the negligence of the company, without fault on his part (therein considering his age, intelligence, familiarity with the place and all the surroundings); then your verdict should be for the plaintiff for such reasonable *15sum as will compensate him for his injuries. If, however, he contributed to the injury, by stopping or loitering on the crossing, he was guilty of contributory negligence and cannot recover. The burden is upon the plaintiff to show that the negligence of the defendant was the sole cause of the accident.
If, however, you should find that he was crossing the railroad only by the mere permission or acquiesence of the company, then he cannot recover, unless you find that the injuries complained of were the result of gross negligence or wilful or wanton carelessness on the part of the defendant company. The want of ordinary care in such case would not make the defendant liable.
We do not think the doctrine of proximate and remote cause applies to this case; nor is it within the scope of the statute relating to grade crossings at public highways.
It now remains for you to decide this case, and in so doing you are to be governed in your conclusions by no other considerations than the evidence which you have heard in this Court, and your recollection of that evidence must control you in all cases, without respect to what may have been said by the Court in this charge about it by way of illustration.
The jury disagreed.