Mr. Justice Sterrett
delivered the opinion of the court,
In his opinion refusing to take off the compulsory nonsuit, the learned president of the Common Pleas concedes the case is a close one, but appears to think the judgment should be sustained on the ground that the child’s unfortunate injury resulted from her own impetuosity and heedlessness, and not from any neglect of duty on the part of defendant company. If he is correct in this, the nonsuit was rightly entered. But, plaintiffs’ contention is that the jury would have been warranted in finding negligence of the company defendant, from which the injury complained of resulted; that the testimony tended to prove such facts and circumstances as bring the case within the general principle recognized and approved by this Court in The Philadelphia and Reading Railroad Company v. Trautman, 11 W. N. C., 453, in which it is ruled that where a person crossed a railroad track by a common and well-known footpath used by the public for many years without let or hindrance on the part of the railroad company and its employés, he cannot be regarded as a trespasser ; and, where it is shown, as was done in this ease, that the footpath, across the company’s land, has been habitually used by the public for many years without objection, it is for the jury to say whether the company 1ms not acquiesced in such use.
While such use does not convert the company’s right of way into a public highway, it certainly does relieve persons passing-on the same from being treated as trespassers on the company’s premises ; and there is a manifest distinction between the degree of care which a railroad company is bound to exercise towards mere trespassers and those who may be using the right of way by tacit consent or Implied permission of the company. In the case of such long continued use by the public, the company and its employes are charged with notice of the fact, and therefore cannot with impunity neglect precautions to prevent danger to persons thus using the same. In Benny v. The Railroad Company, 92 N. Y., it is said : “ The acquiescence of defendant for so long a time, in the crossing of the tracks by pedestrians, amounted to a license and permission, by defendant, to all persons to cross the tracks at this point. These circumstances imposed a duty on tbe defendant, in respect of persons using the crossing, to exercise reasonable care in the movement of its trains. The company had a lawful right to use the tracks for its business, and could have withdrawn its permission to the public to use its premises as a public highway, assuming that no public right therein existed; but, so long as it permitted the public use, it was chargeable with knowledge of the danger to human life from operating its trains at that point, and was bound to such reasonable precaution in their management as ordinary prudence dictated to protect wayfarers from injury. ..... The company, in such cases, is an actor at the time in creating the circumstances which imperil human life, and it would be alarming doctrine tliat it was under no duty to exercise any care in the movement of its trains.”
Tbe principle clearly settled by tbe foregoing, and many otlier eases that might be cited, is, that when a railroad company has for years, without objection, permitted the public to cross its tracks at a certain point not in itself a public crossing, it owes the duty of reasonable care towards those using tbe crossing] and whether in a given case such reasonable care has been exercised, or not, is ordinarily a question for tbe jury under all the evidence.
Without undertaking to review the testimony on which plaintiff relied, we think the evidence is quite sufficient to warrant the submission of ber case to a jury on tbe questions of permissive crossing at the point where she was injured, and whether in the movement of its train the company exercised that degree of care, which, under the circumstances, it was in duty bound to do.
There was testimony tending to show the whistle was not sounded, bell not rung, nor any warning given of the approach of the train by which plaintiff was struck. This was properly for the consideration of the jury; and in view of all the circumstances, including the fact that the siding was occupied by a standing train of cars and the main track thus out of view, we have no right to say the jury would not have found negligence in not warning those who might be in the act of crossing that the train was approaching. If plaintiff had been duly warned, either by sounding the whistle or ringing the bell, it is not at all probable she would have attempted to cross the track in the face of known danger. The question of contributory negligence does not arise in the case. The age of plaintiff at the time of the accident precludes that. If, under the evidence, she was not a trespasser on the premises of the company, the question is whether it was not their duty to give suitable warning of the approach of their train ; and, failing to do that, whether they were not guilty of negligence which was the proximate cause of the injury. The first and second specifications of error are sustained. There was no error in refusing to receive the evidence specified in the third and fourth assignments, and hence they are not sustained.
Judgment reversed and a procedendo awarded.