whistle blowing. Bell was ringing at the time of accident. Heard the whistle for the crossing about a square and a half, or two squares, away. Train was a heavy one and made much noise. There was no other train at or near the crossing or station.

The defendant moved the court for a verdict on the pleadings and evidence, because of contributory negligence; because deceased was on the premises of defendant, not for the purpose of becoming a passenger, and defendant owed her no duty other than not to wilfully injure her after discovering her dangerous situation. The motion was denied.

Special instructions were prayed and refused. Among these, that, under the pleadings and evidence, the verdict should be for the defendant; submitting the issue of contributory negligence; and to the effect that there was no evidence in the case tending to show that defendant's platform was negligently or improperly constructed, and that being the sole claim of negligence set up in the declaration,the verdict should be for the defendant.

The following shows the colloquy between the court and counsel in the presence of the jury, when the instructions were refused:

I think I shall have to instruct the jury, under this declaration and under this evidence, that if the engineer saw this girl in front of the engine, near enough to be struck, in time to have stopped his engine, or to have done something else that would have prevented her being struck, he was liable to use all the care and diligence he could to prevent the accident, notwithstanding that she might be guilty of negligence at the same time. He says he saw her when he came up to the end of the platform, and that he was ringing his bell, and he thought she would get out of the way of the danger. When he got within 10 or 12 feet, he saw she had not gotten out of the way, and then he blew his signal. Now, whether he should not have blown that distress signal when he was 100 feet away, coming up to the edge of the platform, is a point for the jury. Wheth

er he did everything he could to prevent the accident is a question for the jury, under all the circumstances of the platform being built as it was and used as it was. Not only that, but the engineer saw this girl, saw the plight she was in. Did the engineer have a right to assume that she would be out of the way before he got to her? After getting so near to her before he blew the distress whistle, whether or not he should have blown it when he got to the end of the platform across Michigan avenue, and whether he could have prevented the accident should he have exercised more diligence than he did, is a question for the jury.

Mr. Colbert:

There is no claim of that kind made in the declaration.
The Court:

There is a general claim on the part of the plaintiff.
Mr. Colbert:

No, sir; I think not.

The Court:

There is a general claim of negligence, describing what they claim to be negligence in the construction and use of the platform. As to that question of negligence on the part of the defendant as to having a platform built like such an inviting sidewalk as this, for the people to walk along 150 feet, of course I do not know that there was any negligence in builidng that sidewalk that way, but it created a situation there that ought to have put engineers and people handling trains there particularly on guard at that crossing, because here was a platform that people used as a sidewalk, right parallel with the track, right close to the track, and about the same height as the track, according to a good deal of this testimony. People were frequently on the platform, nearly always when they passed there, and of course that imposed upon the railroad company the duty of extraordinary care. Of course, decedent

was entitled to exercise care. Both were entitled to exercise care, but it was a dangerous place, and it was created by the company for their own purposes, and yet allowed to be used

Vol. XXXVII.-15.

by the public. So I think the whole question will have to go to the jury on that theory.

Defendant noted an exception to the statement that, under the circumstances, defendant was required to use extraordinary care; for if any care was required at all, it was ordinary care. The court then said: "Well, I do not know about the 'extraor dinary care,' but it should have used all the care it could possibly use in the case."

In the general charge submititng the case, the court left it to the jury to determine whether the defendant was guilty of negligence either in the construction of the platform, or in the management of its train, or in both; and whether the death resulted from that negligence.

As regards contributory negligence, he charged that deceased was bound to use the reasonable care that any person of her age and understanding should use in approaching or going along a dangerous place. He added: "It may be that you would not require her to be as watchful as you would an adult person. In cases where children of seven years or less are injured, there can be no question of contributory negligence, under the law, because those children are supposed not to have judgment enough to look out for themselves, and adults have to look out for them. In cases of greater maturity, as this child was, of sixteen years of age, a different rule would apply. She may have to exercise a greater care, and she may be guilty of contributory negligence, if, under all the circumstances, you should find that she was guilty of contributory negligence."

So much of this was excepted to, because it says that the same degree of care should not be expected from those sixteen years of age as from an adult.

The court then charged the jury to the effect that, notwithstanding contributory negligence, it was the duty of defendant engineer, after discovering the situation of the deceased, to exercise proper care to prevent the accident; he would be guilty of ngligence in not exercising all the care that he could. * "So that you are to look to the whole situa

*

*

tion here, look at the construction of the platform, its use, the knowledge of its use and character, the people passing up and down there, the time of day, the speed at which this train was going, and what was done by the engineer, if anything, to prevent the accident after he saw the danger that the girl was in. Taking all these conditions into consideration, you will make up your minds whether or not this plaintiff ought to recover anything of this defendant." Counsel for defendant "noted an exception to that portion of the oral charge that states that the declaration alleges negligence in the management of defendant's train. My understanding is that there is no such claim in the declaration. Second, that there might be a recovery if the defendant was guilty of negligence in the operation of his trains; and next, I except to that portion of the court's oral charge which treats of contributory negligence as being overcome, or dispensed with, under the doctrine of last chance."

The jury returned a verdict for the plaintiff, and from the judgment thereon the defendant has appealed.

Mr. George E. Hamilton, Mr. M. J. Colbert, Mr. John J. Hamilton, and Mr. John W. Yerkes for the appellant.

Mr. John E. Collins, Mr. Harry A. Clarke, and Mr. Benjamin L. Gaskins for the appellee.

Mr. Chief Justice SHEPARD delivered the opinion of the Court:

1. We are of the opinion that the court erred in submitting to the jury the question of the negligence of the defendant in the operation of the train at and just before the accident.

This issue was not raised by any allegation of the pleadings. As shown by the extract from the declaration, heretofore given, the plaintiff strictly confined her allegation of negligence to the construction and maintenance of the plat

form on which the deceased was walking when struck by the passing train.

2. It was error, also, to refuse the third instruction prayed by the defendant. The platform had been in use for some years, for the purposes intended. There was no evidence whatever tending to show that there was anything unusual either in its construction or location, much less tending to show fault or negligence therein. Without some evidence from which such negligence might be inferred, it is improper to let a case go to the jury to be determined by surmise or conjecture. State use of Egner v. United R. & Electric Co. 98 Md. 397-401, 56 Atl. 789; Dotson v. Erie R. Co. 68 N. J. L. 679-686, 54 Atl. 827. In both of these cases, persons on a similar platform, intending to become passengers, were struck by passing cars which protruded over the edge of the platform, a slight distance in the second case, and about 18 inches in the first.

In the case at bar, plaintiff's intestate had no intention to become a passenger. She and her companions were using the platform as a pathway for convenience, on their way home from the drug store. While, under the evidence of frequent use of the platform as a pathway by persons similarly situated, she may not be regarded as a trespasser, she was nothing more tuan a mere licensee, and entitled to care as such. Redigan v. Boston & M. R. Co. 155 Mass. 44-47, 14 L.R.A. 276, 31 Am. St. Rep. 520, 28 N. E. 1133; Dotson v. Erie R. Co. 68 N. J. L. 679-684, 54 Atl. 827. The sole feature of negligence alleged is the construction of the platform so near the track that a person walking or standing on the edge thereof might be in danger from a passing train. It was not erected, however, to be used as a sidewalk by the public generally, but as a platform for the accommodation of passengers getting on and off trains. Considered in the light of its intended use, its proximity to the rail could not be held faulty or negligent construction as matter of law; and to permit a jury, in the absence of some evidence, to indulge its opinion or conjecture in determining whether it was or not, would be to establish an unreasonable rule. The responsibility of a railway company in respect of