C. Allen, J.
If the plaintiff’s intestate was on the defendant’s track without right, the action is not maintainable, unless there was wilful or reckless misconduct on the part of the defendant, or of its agents. Wright v. Boston & Albany Railroad, 142 Mass. 296, 301, and 129 Mass. 440. The plaintiff contended that at the point where her intestate was killed the public had acquired, by prescription, the right to cross the tracks of the defendant. The defendant requested the court to rule that there was no evidence which would authorize the jury to find that he was rightfully upon the track. The court declined to give this ruling, but instructed the jury, upon this branch of the case, that the plaintiff could not recover, unless the deceased was rightfully crossing the track at the time of the accident, in the exercise of such prescriptive right, and submitted this question to the jury under instructions which appear to be unobjectionable in matter of detail, if the evidence was sufficient in law to sustain the burden of proof resting upon the plaintiff to establish a public right of crossing. This presents the principal question to be determined.
Upon an examination of the testimony, we are constrained to the conclusion that it did not warrant a finding of such public prescriptive right. It was necessary for the plaintiff to show that there was a public use, continued uninterruptedly for the requisite length of time, which was adverse and under a claim of right, and not merely a use which was tolerated or permitted by the railroad company. Professor Washburn says, “The real [305]*305point of distinction is between a tolerated or permissive user, and one which is adverse or as of right.” Washburn, Easements, (4th ed.) 86. The burden of proof upon this point being upon the plaintiff, it was incumbent on her, not merely to show an occasional use by persons who had no right to cross the track at that place, but a use which, in addition to other necessary elements, was adverse and exercised as a matter of right. Sargent v. Ballard, 9 Pick. 251, 256. Smith v. Miller, 11 Gray, 145,148, 149. It is not necessary that a claim of right should be asserted in express terms. It may be inferred, provided the circumstances are sufficient to warrant such an inference. Blake v. Everett, 1 Allen, 248. Barnes v. Haynes, 13 Gray, 188. But the fact must exist that the public used the crossing as a matter of right.
The fact that at the outset there was at a particular point on a railroad track merely a private farm crossing, established by agreement for the convenience of the owner of the land upon both sides of the railroad, would not be decisive to show that such crossing might not in the course of time become a public way by prescription. Weld v. Brooks, 152 Mass. 297. Such a fact, however, when it is found to exist, suggests an explanation of any occasional crossing by other persons which may be shown, and naturally leads to a more careful examination of testimony, to see whether such acts of crossing appear to have been really adverse. Moreover, such acts of crossing at an early period in the history of railroads, when trains were comparatively infrequent and slow, and when greater freedom was tolerated in being upon railroad tracks than is now consistent with safety or prudence, would perhaps have less significance than similar acts would have at present. Under such circumstances, especially, something further than occasional unopposed acts of crossing must be shown in order to establish a public right of crossing. The acts of crossing must be such in number, character, and extent of time as fairly to show that they were not merely incidental to the private right of crossing, but that they were in the assertion and exercise of a public right. Ordinarily, of course, the question must be submitted to a jury whether a public use of this character, and of the required duration of time, has been shown. But in the present case, after the best consideration we can give to the subject, all the facts testified to seem to be con[306]*306sistent with the view that there was merely a private crossing, which strangers to the right were allowed more or less to nse.
The testimony of the witness Phillips was nearly all that there was in the case bearing upon this view. His testimony upon the matter now important to be considered was very general and vague. According to his account, when the railroad was built, about fifty years ago, Graves, who was the owner of the land on both sides of the track, made an arrangement with the railroad company for a private crossing; and a crossing was accordingly built, being graded up to the level of the track, and planks were placed between the rails by the company. He had bars on one side of the railroad, which he kept up. . The brother of the witness subsequently became the owner of the land; at what time is not stated. He also kept the bars there, but people kept taking them down, and then he put up a gate. The gate was kept shut. The Eastern Avenue, as the way approaching the railroad is called, has not been worked as a highway upon the eastern side of the railroad; the land there now constitutes a part of the farm of the witness, and is open country, — merely level land. The planking between the rails was removed by the railroad company ten or twelve years ago, and recently all travel by teams has been cut off. He says, indeed, “ Prior to that, teams had been going across all the time since the railroad was laid out.” This is not merely the strongest expression he uses, but almost the only one of significance as tending to show an adverse public use by teams. It stands virtually alone, without mention of any of the persons who thus crossed, or of their number, or of the frequency of their using the crossing, or of their destination or purpose. It was a case of persons going through bars or a gate, with no highway worked upon one side of the track, the land there being farm land, open country, merely level land, — with no evidence of any repairs on either side of the railroad at the public expense, or of any public action whatever in respect to the crossing or the approaches thereto, — with no assertion of right on the part of anybody to cross either the railroad or the land of the private owners on the sides thereof. There was nothing to show any great amount of crossing by others than those entitled to use the private crossing, or that such crossing was acquiesced in by the railroad company as a matter of right. [307]*307There being a crossing properly open to some persons, an occasional crossing by others, if known to the railroad company, is more consistent with permission or toleration than with the supposition that it was done and acquiesced in as a matter of right.
The witness Gaffney, the defendant's section-master, testified that, “ when the bars were down, some little market wagons would go across there ” ; that “ during the last forty years there were gates in the first place, and Mr. Graves used to keep the gates locked”; that “ when the gates were rotted down, bars were put up; after the bars, posts made of sleepers were set up ”; that “ for forty years people had been going to this farm ”; and that “ he never knew any team to go there but Mr. Graves’s team for his farming use.” “ In forty years ? ” “ O, no, not forty years; twenty-five years after we had the boarded gates.
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C. Allen, J.
If the plaintiff’s intestate was on the defendant’s track without right, the action is not maintainable, unless there was wilful or reckless misconduct on the part of the defendant, or of its agents. Wright v. Boston & Albany Railroad, 142 Mass. 296, 301, and 129 Mass. 440. The plaintiff contended that at the point where her intestate was killed the public had acquired, by prescription, the right to cross the tracks of the defendant. The defendant requested the court to rule that there was no evidence which would authorize the jury to find that he was rightfully upon the track. The court declined to give this ruling, but instructed the jury, upon this branch of the case, that the plaintiff could not recover, unless the deceased was rightfully crossing the track at the time of the accident, in the exercise of such prescriptive right, and submitted this question to the jury under instructions which appear to be unobjectionable in matter of detail, if the evidence was sufficient in law to sustain the burden of proof resting upon the plaintiff to establish a public right of crossing. This presents the principal question to be determined.
Upon an examination of the testimony, we are constrained to the conclusion that it did not warrant a finding of such public prescriptive right. It was necessary for the plaintiff to show that there was a public use, continued uninterruptedly for the requisite length of time, which was adverse and under a claim of right, and not merely a use which was tolerated or permitted by the railroad company. Professor Washburn says, “The real [305]*305point of distinction is between a tolerated or permissive user, and one which is adverse or as of right.” Washburn, Easements, (4th ed.) 86. The burden of proof upon this point being upon the plaintiff, it was incumbent on her, not merely to show an occasional use by persons who had no right to cross the track at that place, but a use which, in addition to other necessary elements, was adverse and exercised as a matter of right. Sargent v. Ballard, 9 Pick. 251, 256. Smith v. Miller, 11 Gray, 145,148, 149. It is not necessary that a claim of right should be asserted in express terms. It may be inferred, provided the circumstances are sufficient to warrant such an inference. Blake v. Everett, 1 Allen, 248. Barnes v. Haynes, 13 Gray, 188. But the fact must exist that the public used the crossing as a matter of right.
The fact that at the outset there was at a particular point on a railroad track merely a private farm crossing, established by agreement for the convenience of the owner of the land upon both sides of the railroad, would not be decisive to show that such crossing might not in the course of time become a public way by prescription. Weld v. Brooks, 152 Mass. 297. Such a fact, however, when it is found to exist, suggests an explanation of any occasional crossing by other persons which may be shown, and naturally leads to a more careful examination of testimony, to see whether such acts of crossing appear to have been really adverse. Moreover, such acts of crossing at an early period in the history of railroads, when trains were comparatively infrequent and slow, and when greater freedom was tolerated in being upon railroad tracks than is now consistent with safety or prudence, would perhaps have less significance than similar acts would have at present. Under such circumstances, especially, something further than occasional unopposed acts of crossing must be shown in order to establish a public right of crossing. The acts of crossing must be such in number, character, and extent of time as fairly to show that they were not merely incidental to the private right of crossing, but that they were in the assertion and exercise of a public right. Ordinarily, of course, the question must be submitted to a jury whether a public use of this character, and of the required duration of time, has been shown. But in the present case, after the best consideration we can give to the subject, all the facts testified to seem to be con[306]*306sistent with the view that there was merely a private crossing, which strangers to the right were allowed more or less to nse.
The testimony of the witness Phillips was nearly all that there was in the case bearing upon this view. His testimony upon the matter now important to be considered was very general and vague. According to his account, when the railroad was built, about fifty years ago, Graves, who was the owner of the land on both sides of the track, made an arrangement with the railroad company for a private crossing; and a crossing was accordingly built, being graded up to the level of the track, and planks were placed between the rails by the company. He had bars on one side of the railroad, which he kept up. . The brother of the witness subsequently became the owner of the land; at what time is not stated. He also kept the bars there, but people kept taking them down, and then he put up a gate. The gate was kept shut. The Eastern Avenue, as the way approaching the railroad is called, has not been worked as a highway upon the eastern side of the railroad; the land there now constitutes a part of the farm of the witness, and is open country, — merely level land. The planking between the rails was removed by the railroad company ten or twelve years ago, and recently all travel by teams has been cut off. He says, indeed, “ Prior to that, teams had been going across all the time since the railroad was laid out.” This is not merely the strongest expression he uses, but almost the only one of significance as tending to show an adverse public use by teams. It stands virtually alone, without mention of any of the persons who thus crossed, or of their number, or of the frequency of their using the crossing, or of their destination or purpose. It was a case of persons going through bars or a gate, with no highway worked upon one side of the track, the land there being farm land, open country, merely level land, — with no evidence of any repairs on either side of the railroad at the public expense, or of any public action whatever in respect to the crossing or the approaches thereto, — with no assertion of right on the part of anybody to cross either the railroad or the land of the private owners on the sides thereof. There was nothing to show any great amount of crossing by others than those entitled to use the private crossing, or that such crossing was acquiesced in by the railroad company as a matter of right. [307]*307There being a crossing properly open to some persons, an occasional crossing by others, if known to the railroad company, is more consistent with permission or toleration than with the supposition that it was done and acquiesced in as a matter of right.
The witness Gaffney, the defendant's section-master, testified that, “ when the bars were down, some little market wagons would go across there ” ; that “ during the last forty years there were gates in the first place, and Mr. Graves used to keep the gates locked”; that “ when the gates were rotted down, bars were put up; after the bars, posts made of sleepers were set up ”; that “ for forty years people had been going to this farm ”; and that “ he never knew any team to go there but Mr. Graves’s team for his farming use.” “ In forty years ? ” “ O, no, not forty years; twenty-five years after we had the boarded gates. The people went the same as he did, as far as the land was concerned, but there was no through right of way there; the people would keep going across, the same as they will anywhere; the street was graded, but there was a high knoll on each side coming to the track, very high; there was a temporary grade; there was no grading for people to go over, because there was no right to go there; he supposed Mr. Graves kept it graded for his own purposes.” This does not essentially vary or add to the testimony of Phillips in reference to the use being adverse.
The crossing by persons on foot did not appear to have been of a different character. That a private way for travel on foot across a railroad track may be gained by prescription has been recently determined. Fitchburg Railroad v. Frost, 147 Mass. 118. Nor need it be doubted that a public footway may be thus acquired, like other public ways. Fitchburg Railroad v. Page, 131 Mass. 391. But the same difficulty remains, that it did not sufficiently appear that the crossing on foot was under a claim of right. The physical fact of more or less crossing was undoubtedly shown. But the evidence failed to show that this crossing was of such a character, and under such circumstances, as to warrant the jury in finding, or assuming, that a prescriptive right was thereby acquired. In this respect the case bears some analogy to Markey v. Mutual Benefit Ins. Co. 103 Mass. 78, where a transfer of the manual possession of a policy was shown, but the court held, under the circumstances which there [308]*308existed, that this was insufficient to warrant the jury in finding a delivery with intent to pass the title. The same rule prevails in respect to the delivery of deeds. Stevens v. Stevens, 150 Mass. 557, and cases there cited.
It being incumbent on the plaintiff to establish by a preponderance of the testimony that the use of the crossing by others than those who rightfully used it as a farm crossing was adverse, and in the assertion of a right, if all the testimony was equally consistent with the theory that the use was not of that character, the plaintiff has failed to sustain the burden which rested upon her. Lamb v. Western Railroad, 7 Allen, 98. Smith v. First National Bank in Westfield, 99 Mass. 605. Griffin v. Boston & Albany Railroad, 148 Mass. 143, 145, and cases there cited. And if a case is submitted to the jury under instructions which permit them to find a verdict which the evidence is not sufficient to sustain, the other party is entitled to a new trial, although the instructions, abstractly considered, were free from objection. Brightman v. Eddy, 97 Mass. 478. Markey v. Mutual Benefit Ins. Co. 103 Mass. 78, 87. King v. Nichols, 138 Mass. 18, 23.
The entry must be, Exceptions sustained.