
    QUANTZ v. RAILROAD.
    (Filed December 6, 1904).
    
      NEGLIGENCE — Licenses—Railroads,
    Where the public is licensed tó> pass through a railway station the railroad company is not liable for injuries sustained by a licensee who falls through a door located twelve feet from the passage-way.
    ActioN by S. 0. Quantz against the Southern Railway Company, beard by Judge W. B. Allen and a jury, at October Term, 1904, of the Superior Court of MecKxenbubg County.
    The plaintiff reached Charlotte on defendant’s train on the night of May . ., 1904, at about ten o’clock. The train stopped at the depot, the coach upon which defendant was being some distance below the end of the depot building. He went across the depot to a restaurant on Fourth street, not on defendant’s right of way. He drank some coffee or milk and, desiring to see a policeman, went from the restaurant towards Trade street, which runs the other side of the depot and parallel with Fourth street. In going towards Trade street, he passed along an open space on the defendant’s right of way and just behind the depot building. This open space was unobstructed and was, with the permission of the defendant, used by the public in passing from Fourth street to Trade street. About half way from Fourth street the depot building becomes wider, including the office, waiting-room, dining-room, etc. At this, point there is an open way between the telegraph office and the baggage-room. There is near this point, but not in the open way, a stair-way. When plaintiff reached this point he turned to go through the depot building to find the policeman. He saw through a window a light burning; saw the stair-way going up in the inside; he Crossed the curbing and went to the door, at'the head of the stair-way, being about twelve feet- from the edge of the space. Finding the lattice door open, the plaintiff went in and fell, whereby he was injured. Standing at the back of the depot building and looking through a window a person could see the stair-way on the inside of the building. A map accompanied the ease on appeal showing the depot and surroundings. The defendant at the close of the testimony moved the Court to dismiss the action as upon a nonsuit. Motion denied. Defendant excepted. The only portion of the charge to which there was exception is as follows: “If you find from the evidence in this case that that street or passway was used by the public; that they were in the habit of using it, or that persons who wished to become passengers upon the trains of the defendant were in the habit of using that passageway, then it became the duty of the defendant not to so construct its building, or not to leave its building in such condition that there would be either on or near the passway a dangerous place, and not to construct it in such condition that one would be misled by the light in the building and induced to enter a dangerous place. And.if you find from the evidence that the defendant has been negligent in that respect, has failed in the performance of its duty, and that that was the cause of the injury to the plaintiff, then you would answer the first issue ‘Yes’; that the plaintiff was injured by the negligence of the defendant.” From a judgment for the plaintiff defendant appealed.
    
      C. D. Bennett, for the plaintiff.
    
      W. B. Rodman and G. F. Bason, for the defendant.
   Connor, J.,

after stating the case. His 'Honor told the jury that the plaintiff had, at the time of his injury, ceased to be a passenger; in this we concur. We also concur in the opinion that be was not a trespasser. He was a licensee’. His relation to tbe defendant, growing out of tbe contract of carriage or tbe assumption of a public duty by tbe defendant, was at an end. Tbe case, thus simplified, presents tbe question as to tbe measure of duty wliicb tbe defendant owed tbe plaintiff as a licensee. Tbe plaintiffs right to- recover is dependent upon sustaining tbe proposition tbat tbe defendant owed to bim a duty, and that there was. a breach thereof, which was the proximate cause of tbe injury. Emry v. Navigation Co., 111 N. C., 94, 17 L. R. A., 699. It is conceded that the defendant did not owe to the plaintiff tbat high degree of care due a passenger. It is equally clear that it owed to bim a higher degree of care than was due a trespasser. Tbe authorities make a distinction between the degree of care due a mere licensee, one who by permission enters upon tbe premises of another and one who’ does so by invitation. It is not always easy to say upon which side of this line a particular case falls. Assuming tbat tbe license given to tbe public to use this way to pass from Fourth to Trade street amounted to implied invitation to the plaintiff to enter upon and pass over it, we next enquire tbe extent of tbe license. It was to pass from fourth to- Trade street. Tbe duty therefore of the defendant was to keep^ the way free from dangerous obstructions or pitfalls, either on or so near to tbe way tbat a person exercising ordinary care would not be injured. Tbe plaintiff went over tbe way for bis own purpose, having no connection whatever with tire defendant’s duty to tbe public as a common carrier. There is no suggestion that there was any obstruction to prevent tbe plaintiff using tbe way to tbe full extent of bis license. He went twelve feet out of bis way to go to tbe front of the depot to look for a policeman for tbe purpose of ascertaining tbe whereabouts of a person whom he wished to find. There is no suggestion that tbe open door was dangerously near to tbe open space. Certainly tbe defendant was not required to so construct its depot, before tbe license was given, as to enable licensees to walk around about and enter it all times by day or nigbt for purposes entirely disconnected with tbe use for which it was built. Tbe defendant owed no duty to tbe plaintiff to keep all of the doors of tbe depot building closed at nigbt. No reasonable person would appreheiad that in using the open space for tbe purpose of passing from one street to another a person would go twelve feet out of tbe way and step into’ an open door. We can see no breach of duty to tbe plaintiff. We have discussed tbe case upon the assumption that tbe plaintiff was an invited licensee. It is by no means clear that tbe license was more than permissive, in which case a lower degree of care is imposed.

In any view of tbe testimony tbe defendant was not liable. Sweeny v. Railroad, 10 Allen, 388, 87 Am. Dec., 644; Redigon v. Railroad, 155 Mass., 44, 14 L. R. A., 276, 31 Am. St. Rep., 520. “One who attempts to cross a platform at a railroad station for bis own convenience as a. short cut from one street to another, is a mere licensee and cannot recover for an injury received by falling into a bole in such platform, although the railroad company bad passively permitted tbe plaintiff and the public generally to use it.” Elliott on Railroads, sec. 1251.

We are of the opinion that the motion for nonsuit should have been allowed.

Error.  