#### Ford, Admr., *v.*The Cleveland, Cincinnati, Chicago *&*St. Louis Ry. Co.

*.’Negligence*— Railroads—Knowledge *and acquiescence*— Use *of foot passageway across tracks*— Employe *of independent contractor*— Exercise *of care by company*— Pleading.

In, an action for damages for wrongful death a petition is good against demurrer, which discloses that plaintiff’s decedent was an employe of an independent contractor engaged by defendant to repair its tracks; that the bunk car in which decedent lived had been placed by defendant upon one of its switches on its right of way near a station on a highway, from which point along its right of way for more than a mile the public generally and almost continuously used the tracks of defendant as a foot passage in going to and from such station, with the knowledge and acquiescence of the defendant; that plaintiff’s decedent for more than •two months during all the time of his employment had used such foot passage from the station to the bunk car, the defendant well knowing the only way from the highway to and from the bunk car to be over and along such tracks; that plaintiff’s decedent on the night in question was walking from the station to his bunk car, and while so on the company’s right of way, without any negligence on his part, was struck by a passenger train running at great speed, drawn by one of defendant’s engines, upon which no headlight was lighted, in violation of Section 8945-1, General Code; and that no warning whatever was given by the defendant of the approach of such train, nor any lookout kept ahead by its servants in charge of the train for persons on the track along the right of way, where the public and decedent were so accustomed to walk with the knowledge and acquiescence of defendant, and where the presence of persons might reasonably have been anticipated, which claimed acts of negligence amongst others proximately caused the injury resulting in death. *(Harriman*v. *P., G. é St. L. Ry. Go.,*45 Ohio St., 11, approved and followed.)

(No. 17403

Decided February 20, 1923.)

*101Eeboe to the Court of Appeals of Lorain county.

This is an action to recover damages for wrongful death, brought by the administrator of the estate of Frederick W. Ford, deceased, against The Cleveland, Cincinnati, Chicago & St. Louis Railway Company.

The petition after averring formal matters, among other things, recites as follows:

“For many years, up to the time of said accident, the public had generally, and almost continuously, with the knowledge and acquiescence of the defendant, used said tracks of the defendant as a foot passage for more than a mile northeasterly from said Columbia Station, in going to and from said station, the same being the most convenient way from said station to and beyond the first highway crossing said tracks northeasterly from and distant about two-thirds of a mile from said station.

“Also, for two months prior to and including said 25th day of August, 1920, and at the time of said accident, The A. S. Hecker Company, -with a large gang of thirty or more men in its employ, was employed by said defendant in repairing its tracks at and northeasterly from said station, for a mile or more, of which said gang of employes engaged in said work, the said Fred W. Ford was at the time of said accident a member and part; all of which gang of men, including said Fred W. Ford, were living in bunking cars on the said railway company’s right of way, on a switch of defendant’s said railway about five hundred feet northeasterly of said highway, and were so living there at the time of said *102accident, all with,the knowledge and consent of the defendant.

“During all said time of employment, as the defendant well knew, the only way from said highway to and from said last named cars was over and along said tracks of defendant.

“During all the time of said employment said gang of men, with the knowledge and acquiescence of the defendant, used said tracks between the cars where they so lived and said Columbia Station as a foot passage, almost continuously, especially in the evening hours while they were off duty, in which use said Pred W. Ford participated, the said tracks being the only direct way to said station from said cars so placed on said sidetrack, which said common use thereof by said public and said gang of employes, including said Pred W. Ford, continued up till and including all the night season of August 25, 1920, until the accident hereinafter stated, to him.

“On said August 25, 1920, in the night season, to-wit, about the hour of half past eight, plaintiff’s said intestate Pred W. Ford, in company with Charles Young, also a member of said gang of employes, was returning to said cars in which they then lived, from said Columbia Station, walking as was the custom of said gang of men and the public generally, upon the northerly, or left hand track of said railway, when, without any warning, or negligence on his part, or on the part of plaintiff, he was struck by a train of cars of the defendant running at great speed being a passenger train, from behind him, on said northeasterly track, going also in a northeasterly direction, while he was about twenty-*103five rods southwesterly from said highway crossing, killing him instantly.”

Among the acts of negligence averred in the petition .are:

“The engine of said train then had no headlight thereon, as the defendant well knew, or by the use of ordinary care would have known. (* * ***

“No warning whatever was given said Fred W, Ford by defendant of the approach of said train, nor any lookout ahead by its servants in charge of said train, for persons on said track.”

The petition further avers that these and other acts of negligence proximately caused the death of the decedent, and that he left three brothers and one sister and a mother as next of kin. The prayer of the petition was for damages in the sum of $10,700.

A demurrer was interposed to this petition upon the ground that the same did not state facts sufficient to constitute a cause of action in favor of the plaintiff and against the defendant. This demurrer was sustained by the court of common pleas and the judgment of that court was affirmed by the court of appeals. This action is brought to reverse the judgment of those courts.

*Mr. C. A. Metcalf; Messrs. Stroup <& Bice*and *Mr. A. H. West,*for plaintiff in error.

*Mr. S. C. Johnson,*for defendant in error.

Day, J.

The sole question for determination in this case is whether the petition filed herein states a cause of action.

A solution of the problem requires a determination of two questions: First, what duty was owing *104by the defendant to the plaintiff; and, second, is there a violation of that dnty disclosed by the allegations of the petition?

The defendant claims that the decedent was at most a mere licensee, and that the duty which defendant owed the decedent, if he was a bare licensee, was “to refrain from wantonly or wilfully injuring him and to exercise ordinary care after discovering him to be in peril.” (Hannan, *Admr.,*v. *Ehrlich,*102 Ohio St., 176.) The plaintiff contends on the other hand for a somewhat stronger rule, in view of the facts that the decedent was an employe of an independent contractor “employed' by said defendant in repairing its tracks” and that the bunk car in which the decedent lived, with the knowledge and consent of defendant, was located on a switch on defendant’s right of way “about 500 feet northeasterly of said highway,” the only way from such highway to and from such bunk car being “over and along said tracks of defendant.” Plaintiff further contends that during all the time of his employment the gang of workmen, “with the knowledge and acquiescence of the defendant, used said tracks between the cars where they so lived and said Columbia Station as a foot passage, almost continuously, especially in the evening hours while they were off duty, in which use said Fred "W. Ford participated, the said tracks being the only direct way to said station from said cars so placed on said sidetrack, which said common use thereof by said public and said gang of employes, including said Fred W. Ford, continued up till and including all the night season of August 25, 1920, until the accident hereinafter stated, to him.”

*105Plaintiff claims that the decedent was properly upon the company’s right of way; that his presence at that point might have reasonably been anticipated, and that he was more than a mere licensee; that he was at least an invited licensee and that the duty of reasonable care was due him from the company.

In support of this theory the plaintiff relies upon the principle of the following authorities:

“Where a railroad company has for a long time permitted the public, including children, to travel and pass habitually over its road at a given point, without objection or hindrance, it should, in the operation of its trains and management of its road, so long as it acquiesces in such use, be held to anticipate the continuance thereof, and is bound to exercise care, having due regard to such probable use, and proportioned to the probable danger to persons so using its road.” *Harriman*v. *P., C. & St. L. Ry. Co.,*45 Ohio St., 11.

“Where a person is on the right of way by the express or *implied*consent or invitation of the railroad company, as where the public has habitually passed across or along the right of way at a certain place for a long time with the company’s knowledge or consent, a railroad company has reason to anticipate his presence on the track at such point and is bound to use reasonable care to avoid injuring him * * 33 Cyc., 767, 768, 769.

To summarize, therefore, this petition discloses that the decedent was on the company’s right of way at a place where the decedent, in common with the public, had been accustomed to walk, with the knowledge and consent of the defendant, for a consider*106able period of time; that he was an employe of an independent contractor, whose bunk car had been placed upon the defendant’s switch, upon its right of way, it being a fair inference that the bunk car had been placed upon the switch by defendant; that his only way of reaching the public highway to and from the bunk cars was along such right of way, as the defendant well knew; that such use of defendant’s tracks by decedent had lasted for over two months; that on the night in question, while so upon the company’s right of way, he was struck by a locomotive, being operated without a headlight, in violation of a statute of the state of Ohio, without giving any warning of its approach to a point where the decedent and the public had been accustomed to walk with the knowledge of the defendant, and where the presence of persons on the tracks might have been reasonably anticipated; and that said train was run at an excessive rate of speed under the attendant circumstances. The petition further avers that no lookout ahead by the servants in charge of said train for persons on said track at said point was maintained.

Under -the doctrine of the *Earriman case, supra,*the defendant would be “bound to exercise care, having dué regard to such probable use, and proportioned to the probable danger to persons so using its road.”

The above recited facts, taken in conjunction with the averment of decedent’s freedom from negligence and averment that such facts or some of them were the proximate cause of the injury, constitute in our opinion a cause of action, and, therefore, it must *107follow that there is sufficient in the petition to warrant the trial court in overruling the demurrer.

What nature of defense may be made upon the facts by way of answer, or before a jury, is not now before us for consideration. All we have to consider is the one question whether or not the petition discloses a cause of action, and assuming, as we must, the truth of facts relevant and well pleaded, we think in the light of the *Harrimam case, supra,*and eases therein cited, that the petition does state *s*cause of action and that the court of appeals erred in affirming the common pleas court in sustaining the demurrer to the petition. The judgment is, therefore, reversed.

*Judgment reversed.*

Marshall, C. J., Wanamaicer, Robinson, Jones, Matthias and Allen, JJ., concur.