This is an action of trespass on the case for negligence. The case is here on the plaintiff’s exception to the decision of a justice of the superior court sustaining the defendant’s demurrer to the declaration.
The declaration contains three counts. It is alleged in each count that defendant operated a railroad and maintained a freight yard known as the Valley Falls yard in the town of Cumberland in this state; that such yard abutted in part on McLaughlin avenue in said town; and that defendant operated trams of cars in the yard and also stored them there temporarily when they were not in use. It is further alleged “that at a point where McLaughlin Avenue ended, the public, for a long time prior to the date aforesaid, had been using said area as a crossing to attain the street on the side of the tracks opposite McLaughlin Avenue, and said crossing was well-marked and delineated from continuous use. The plaintiff further avers that the said defendant, by its servants and agents, well knew that the public was using this area as a crossing, and the said defendant acquiesced in said action by its failure, over a long period of time, to prevent in any manner the said use by the public. The defendant failed to place any signs, barriers, notices, or other forms of prohibition.”
It is thereafter alleged in the first count that the defendant had the duty “not to start or move any of its trains of cars on said tracks, so that the same would be propelled' across said area abutting McLaughlin Avenue without giving a timely warning and notice that the said cars were-to be moved * * Then follows an averment of defendant’s breach of such duty as a result of which plaintiff, who-avers she was lawfully “attempting to cross” the tracks in said area, was run over and injured.
The second count is substantially the same as the first count except that the alleged breach of duty was defendí*44ant’s failure to maintain “a proper lookout” -before starting to move any of its cars on said tracks across the area abutting McLaughlin avenue.
The duty alleged in the third count is substantially different. It is therein averred that it was the duty of defendant to move its cars across the area abutting McLaughlin avenue so that anyone crossing such area in the exercise of due care would not be run over and injured. That duty was alleged to have been breached by defendant in that it “willfully and wantonly, with utter disregard for those persons lawfully on said crossing, who, the defendant, by its servants or agents, knew or by the exercise of reasonable care would have known, were there, did cause a certain train of cars * * * to- be suddenly propelled or moved” whereby plaintiff was run over and injured.
The first and second counts raise the inference that defendant permitted the use of its right of way, where it abuts McLaughlin avenue, as a public crossing at least by foot-passers. On the strength of such inference plaintiff assumes that while using said crossing in the exercise of due care she was an invitee of defendant 'by implication. The facts alleged furnish no basis for assuming such a relationship. On the contrary it is obvious therefrom that she was a -trespasser or at most a bare licensee. In either relation defendant owed her no duty except not to willfully or wantonly injure her after actually discovering her peril. Boday v. N.Y., N.H. & H. R.R., 53 R. I. 207.
Whatever the rule may be in other jurisdictions this court has long since adopted the view -that in railroad cases the fact that a certain place, where there is no public right of passage, has been used by persons as a crossing does not constitute such place a public crossing. Nor does it confer upon persons using it any other relation to the railroad than that of trespassers. See Boday v. N.Y., N.H. & H. R.R., supra. And while the weight of authority may favor a considerable relaxation of this rule, 167 A.L.R. 1253, there is *45respectable authority to the contrary. Jackson v. Penn. R.R., 176 Md. 1; McCarthy v. Boston & Maine R.R., 319 Mass. 470; Willey v. Maine Central R.R., 137 Me. 223; Watts v. Atlantic Coast Line R.R., 256 Ala. 352; 3 Elliott, Railroads, §1647, p. 494; 44 Am. Jur., Railroads, §437, p. 659. In any event the view expressed in the Boday case appears to. us to ibe supported by reasons whose cogency convinces us that we should continue to follow it. Only where there are facts which clearly take a case out of the purview of the rule as in Lemieux v. Leonard Construction Co., 73 R. I. 338, and Sanderson v. N.Y., N.H. & H. R.R., 87 R. I. 393, 142 A.2d 124, are we persuaded that we should in justice make exceptions to it. Clearly the declaration in the case at bar does not allege such facts.
In the third count plaintiff does not rely upon the relation of invitee. .She alleges that her presence on defendant’s tracks in the exercise of due care on her part raised a duty on its part not to willfully or wantonly injure her if it “knew or in the exercise of reasonable care would have known” of her presence. No facts are alleged from which the jury could reasonably find that defendant’s conduct in moving its train, had been willful or wanton.
The mere allegation that it did willfully and wantonly cause its train to be propelled against plaintiff is not an averment of fact but a mere conclusion of law. Such failure to allege facts is fatal. Houle v. Carr-Consolidated Biscuit Co., 85 R. I. 1, 125 A.2d 143. Moreover plaintiff has further failed to allege facts that if proved would show defendant actually knew of her peril. This is an indispensable averment because the law does not impose upon the defendant any duty toward the plaintiff as a trespasser or ■bare licensee unless it has first discovered her in a position of danger. “If such a person is not seen, although he could have been seen had the railroad maintained a lookout, there can be no recovery because a railroad is under no duty to keep a lookout for' trespassers. Their probable presence *46on the tracks is not such a circumstance which the law requires a railroad to- anticipate and reasonably guard against.” New England Pretzel Co. v. Palmer, 75 R. I. 387, 394.
We are of the opinion that each -count of the plaintiff’s declaration is fatally defective for the reasons above stated and therefore the trial justice did not err in sustaining the defendant’s demurrer.
The plaintiff’s exception to- the decision sustaining the demurrer is overruled, and the case is remitted to the superior court for further proceedings.