
    Tabor, Appellant, v. Philadelphia & Reading Railway Company.
    
      Negligence — Railroads—Grade crossing — Passageway between depot and platform, — Gate—Overhead bridge — Licensee—Duty to warn licensee — Contributory negligence — Choice of ways — Foggy weather.
    
    1. One who uses a grade passageway, leading from a railroad station to the platform on the opposite side of the tracks at a point in the intertrack fence where there is a gate partly open, for the purpose of getting a package left by the railway company upon the platform, when there are stairways on either side of the tracks to an overhead bridge, is at most a mere licensee to whom the railway company owes only .the duty to abstain from inflicting upon him either intentional or wanton or wilful injury by the operation of its trains.
    2. One who attempts to use such crossing in a dense fog when he could have reached the platform by the overhead bridge, is guilty of such negligence as to preclude Recovery for injuries ¡sustained by being struck by a train.
    Argued January 6,1920.
    Appeal, No. 40, January T., 1919, by plaintiff, from judgment of C. P. No. 2, Philadelphia Co., Dec. T., 1913, No. 1509, refusing to take off compulsory nonsuit in the case of Mathias Tabor v. Philadelphia & Reading Railway Company.
    Before Brown, C. J., Moschzisker, Frazer, Walling, Simpson and Kephart, JJ.
    Affirmed.
    Trespass to recover damages for personal injuries. Before Wessel, J.
    At the close of the plaintiff’s testimony the court directed a nonsuit to be entered for the reasons stated by Wessel, J., as follows:
    The Philadelphia & Reading Railway Company, on September 26, 1913, operated a two-track railroad between the central part of the City of Philadelphia and Chestnut Hill, which forms part of that city. Along the line of that road it had constructed and on the date mentioned was maintaining a station which was known as “Graver’s.” At the station the two tracks were separated by a fence which extended between them for about the length of the station platforms. On the westerly side of the tracks defendant had constructed a platform and erected a building which was used as a station, while on the easterly side there was merely a platform and a small open shelter. Communication between the two platforms was had by means of a crossing and at that point the interline fence was broken by a gate which was. opened by moving it in a southerly direction along the fence. Graver’s Station is at that point below grade and the public highway by which the station is reached is carried across the two-track railroad of the defendant by a bridge. The photograph which is in evidence shows that the bridge can be reached by a stairway on either side of the railroad tracks.
    On- September 26, 1913, the plaintiff in this case, Mathias Tabor, was working for Mr. Lea in Chestnut Hill. It was part of his duty to go to Graver’s Station for the purpose of securing some bread which had. been sent out from the central part of the city in a train over the defendant’s road. On the morning in question plaintiff went to Graver’s Station, arriving there about half-past six o’clock. A train, which had been standing on the easterly track, was about proceeding in a northerly direction. Tabor, therefore, waited on the westerly platform until after the train had started, when he proceeded to start to cross the tracks going from the westerly platform and reaching as far as the interline fence. When he reached the fence he found the gate partly open and started to push it in a southerly direction to enlarge the opening, when a train, which was proceeding in a southerly direction on the westerly track, struck him and he was injured. • He claims that the morning was very foggy; that he was unable to see a distance of more than four or five steps; that he heard no bell or whistle nor any warning of the approaching train; that he was struck and rendered unconscious. In that accident he lost his right arm and was otherwise injured.
    He now claims defendant’s negligence caused the injuries, and that it should compensate him for his loss. I am unable to agree with that view of the law. The plaintiff in this case was neither a passenger nor an employee of the defendant company. He was there on his own business, attending to his own duties, and at most was a mere licensee. The only duty which defendant owed him under the circumstances was to abstain from inflicting upon him either intentional or wanton or wilful injury. There is no evidence in this case that defendant failed in the performance of its duty in that regard. In addition to this, I am of opinion that plaintiff was guilty of such negligence as to preclude a recovery. He was, on the morning in question, approaching a dangerous crossing. According to his evidence, the fog was dense and his view was very limited. He, therefore, was charged under the law with knowledge of the dangers which then existed and of his duty in the premises. He had a safe course to pursue. He could easily have gone up the steps, over the bridge and down on the easterly platform, secured the bread and attended to his business. Instead of doing that be took tbe dangerous course of attempting, in a dense fog, to cross tbe southbound railroad track, enlarge tbe opening in tbe gate, pass through it and over tbe northbound track. In my view of tbe law that was such negligence on bis part as precludes a recovery in this action. I therefore sustain defendant’s motion and enter a nonsuit.
    Tbe court consequently refused to take off tbe nonsuit. Plaintiff appealed.
    
      Error assigned was refusal to take off nonsuit.
    
      Thomas F. Gain, for appellant.
    
      William Olarke Mason, for appellee, was not beard.
    February 2, 1920:
   Per Curiam,

That tbe nonsuit in this case was proper, conclusively appears from tbe remarks of tbe learned trial judge directing it to be entered, and tbe appeal from tbe refusal to take it off is dismissed.

Judgment affirmed.  