Allen, J.
In. order to support the first count of the declaration, it became necessary at the trial for the plaintiff to show that the crossing over the railroad at which the collision occurred had become a highway or town way by prescription; this count being founded on Pub. Sts. c. 112, § 213. We have [339]*339to determine whether the plaintiff had sufficient evidence to entitle him to go to the jury on this question.
In order to show a public way by prescription, it was necessary for the plaintiff to prove an adverse use continued without interruption for twenty years, and an acquiescence in such use by the defendant. Washb. Easements, 86. Adverse use means a use under a claim of right, as distinguished from a use which was permitted. The points which we have to consider are, whether there was evidence of a public use for twenty years under a claim of right, and whether there was evidence of an acquiescence in such use.
It is to be noticed, in the first place, that the origin of the way, according to the testimony, was by reservation in the original deed of the premises to the defendant, given in 1834 by Elias Jenison, who owned some forty acres of land on the south side of the railroad. The way was never laid out as a public way, but it led from a highway on the north of the railroad to Jenison’s land on the south; and this land has since been used for buildings, so that now there are twenty or thirty houses upon it, and in 1853 the name of Greenwood Avenue was given to the way, and the use of it has much increased, so that, according to the testimony of the witness who gave the highest estimate, from one hundred to one hundred and fifty persons a day pass over it at present.
The fact that there was a private way across the railroad by reservation does not prevent the public from gaining a right to use the way by prescription; Fitchburg Railroad v. Page, 131 Mass. 391; Ballard v. Demmon, 156 Mass. 449, 453; but heretofore we have had occasion to observe that the existence of a private way makes it necessary to examine with more care the alleged public use, to see whether after all it has the characteristic of a use under a claim of right, as distinguished from a use of the private way which was assented to or permitted. McCreary v. Boston & Maine Railroad, 153 Mass. 300, 305. See also Smith v. New York & New England Railroad, 142 Mass. 21. If one in walking or driving finds a way open before him, and uses it because it seems to be intended for such use, this alone does not show that he uses the way as a matter of right, and such use would not establish a prescriptive right, no matter [340]*340how frequent or how long continued it might be. Merely from using what is open to use, without more, no presumption arises that the use is adverse. Thomas v. Marshfield, 13 Pick. 240. Kilburn v. Adams, 7 Met. 33. Hall v. McLeod, 2 Met. (Ky.) 98. Washb. Easements, (4th ed.) 135. In other words, there must be something to show that the way is used as a public way, rather than as an open private way. Sargent v. Ballard, 9 Pick. 251. This is illustrated by the example of the private streets which exist in some of our manufacturing cities. They are in appear, anee undistinguishable from public streets; they are kept constantly open, and in such a condition that all persons who choose can use them freely. But they remain private ways, unless use by the public under a claim of right is shown. Durgin v. Lowell, 3 Allen, 398. Danforth v. Durell, 8 Allen, 242. It has sometimes been suggested that the comparative amount of rightful private use and of the public use which is without absolute right is an important element in determining whether such public use is under a claim of right. No doubt the amount of such unauthorized use may be considered as tending to show a use under the belief that the way is a public one; but the final test is, not whether it is greater or less in amount than the rightful private use, but whether it is of such a character as to show the assertion or assumption of a right so to use the way, or a use under the belief that such use is a matter of public right. See Weld v. Brooks, 152 Mass. 297; Taft v. Commonwealth, 158 Mass. 526, 552. In order to show such adverse use by the public it is not necessary that each or any traveller should in express words declare that he claims the right as one of the general public to travel over the way in question. Blake v. Everett, 1 Allen, 248. Nor is it easy to express in what particular manner such assertion of right should be shown. Nevertheless the fact must exist that the way is used as a public right, and it must be proved by some evidence which distinguishes the use relied on from a rightful use by those who have a right to travel over the private way, and also from a use which is merely casual, or incidental, or permissive. The amount, character, and duration of the use of a way by persons who had no lawful right to use it may have been such as to tend to show that such use was under the belief that the way was public. But the burden of proof being upon [341]*341the plaintiff, we are to see if the evidence introduced in this case was sufficient to warrant a finding of a public way by prescription, bearing in mind that a mere scintilla of evidence is not enough. Hillyer v. Dickinson, 154 Mass. 502. Commissioners of Marion County v. Clark, 94 U. S. 278, 284. If all the evidence which was introduced was equally consistent with the view that the uses relied on were of the latter character, the plaintiff failed to sustain the burden of proof resting upon him to show a use under a claim of right. Sargent v. Ballard, 9 Pick. 251, 256. Smith v. First National Bank, 99 Mass. 605. Griffin v. Boston & Albany Railroad, 148 Mass. 143.
Let this view of the case be tested by an illustration. If one who has no right to pass over a way nevertheless persists in doing so, in the assertion of a right to use it, without the assent of the owner of the premises, he is subject to an action for the trespass. Upon the testimony introduced in this case, would the railroad company be entitled to go to the jury in an action brought for trespass against any of those who have used the way now in question ? Is there any evidence to show that any such use was in the assertion of an adverse right, or without the acquiescence of the railroad company ? If not, it goes to show that the plaintiff has not sustained the burden of proof. Felton v. Simpson, 11 Ired. 84. Washb. Easements, (4th ed.) 86, 87.
It was incumbent on the plaintiff, not merely to show an adverse public use, under claim of right, continued for twenty years, but also that during that period the defendant acquiesced therein. Hennefin v. Blake, 102 Mass. 297. Acquiescence implies that the defendant knew, or had reason to believe, that there was such an adverse use. The crossing might be used as of private right by the occupants of the twenty or thirty houses built upon the land formerly belonging to Jenison. For their convenience, the way was extended to highways still further south. Persons having legitimate occasion to go to or from those houses might also rightfully use the crossing.
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Allen, J.
In. order to support the first count of the declaration, it became necessary at the trial for the plaintiff to show that the crossing over the railroad at which the collision occurred had become a highway or town way by prescription; this count being founded on Pub. Sts. c. 112, § 213. We have [339]*339to determine whether the plaintiff had sufficient evidence to entitle him to go to the jury on this question.
In order to show a public way by prescription, it was necessary for the plaintiff to prove an adverse use continued without interruption for twenty years, and an acquiescence in such use by the defendant. Washb. Easements, 86. Adverse use means a use under a claim of right, as distinguished from a use which was permitted. The points which we have to consider are, whether there was evidence of a public use for twenty years under a claim of right, and whether there was evidence of an acquiescence in such use.
It is to be noticed, in the first place, that the origin of the way, according to the testimony, was by reservation in the original deed of the premises to the defendant, given in 1834 by Elias Jenison, who owned some forty acres of land on the south side of the railroad. The way was never laid out as a public way, but it led from a highway on the north of the railroad to Jenison’s land on the south; and this land has since been used for buildings, so that now there are twenty or thirty houses upon it, and in 1853 the name of Greenwood Avenue was given to the way, and the use of it has much increased, so that, according to the testimony of the witness who gave the highest estimate, from one hundred to one hundred and fifty persons a day pass over it at present.
The fact that there was a private way across the railroad by reservation does not prevent the public from gaining a right to use the way by prescription; Fitchburg Railroad v. Page, 131 Mass. 391; Ballard v. Demmon, 156 Mass. 449, 453; but heretofore we have had occasion to observe that the existence of a private way makes it necessary to examine with more care the alleged public use, to see whether after all it has the characteristic of a use under a claim of right, as distinguished from a use of the private way which was assented to or permitted. McCreary v. Boston & Maine Railroad, 153 Mass. 300, 305. See also Smith v. New York & New England Railroad, 142 Mass. 21. If one in walking or driving finds a way open before him, and uses it because it seems to be intended for such use, this alone does not show that he uses the way as a matter of right, and such use would not establish a prescriptive right, no matter [340]*340how frequent or how long continued it might be. Merely from using what is open to use, without more, no presumption arises that the use is adverse. Thomas v. Marshfield, 13 Pick. 240. Kilburn v. Adams, 7 Met. 33. Hall v. McLeod, 2 Met. (Ky.) 98. Washb. Easements, (4th ed.) 135. In other words, there must be something to show that the way is used as a public way, rather than as an open private way. Sargent v. Ballard, 9 Pick. 251. This is illustrated by the example of the private streets which exist in some of our manufacturing cities. They are in appear, anee undistinguishable from public streets; they are kept constantly open, and in such a condition that all persons who choose can use them freely. But they remain private ways, unless use by the public under a claim of right is shown. Durgin v. Lowell, 3 Allen, 398. Danforth v. Durell, 8 Allen, 242. It has sometimes been suggested that the comparative amount of rightful private use and of the public use which is without absolute right is an important element in determining whether such public use is under a claim of right. No doubt the amount of such unauthorized use may be considered as tending to show a use under the belief that the way is a public one; but the final test is, not whether it is greater or less in amount than the rightful private use, but whether it is of such a character as to show the assertion or assumption of a right so to use the way, or a use under the belief that such use is a matter of public right. See Weld v. Brooks, 152 Mass. 297; Taft v. Commonwealth, 158 Mass. 526, 552. In order to show such adverse use by the public it is not necessary that each or any traveller should in express words declare that he claims the right as one of the general public to travel over the way in question. Blake v. Everett, 1 Allen, 248. Nor is it easy to express in what particular manner such assertion of right should be shown. Nevertheless the fact must exist that the way is used as a public right, and it must be proved by some evidence which distinguishes the use relied on from a rightful use by those who have a right to travel over the private way, and also from a use which is merely casual, or incidental, or permissive. The amount, character, and duration of the use of a way by persons who had no lawful right to use it may have been such as to tend to show that such use was under the belief that the way was public. But the burden of proof being upon [341]*341the plaintiff, we are to see if the evidence introduced in this case was sufficient to warrant a finding of a public way by prescription, bearing in mind that a mere scintilla of evidence is not enough. Hillyer v. Dickinson, 154 Mass. 502. Commissioners of Marion County v. Clark, 94 U. S. 278, 284. If all the evidence which was introduced was equally consistent with the view that the uses relied on were of the latter character, the plaintiff failed to sustain the burden of proof resting upon him to show a use under a claim of right. Sargent v. Ballard, 9 Pick. 251, 256. Smith v. First National Bank, 99 Mass. 605. Griffin v. Boston & Albany Railroad, 148 Mass. 143.
Let this view of the case be tested by an illustration. If one who has no right to pass over a way nevertheless persists in doing so, in the assertion of a right to use it, without the assent of the owner of the premises, he is subject to an action for the trespass. Upon the testimony introduced in this case, would the railroad company be entitled to go to the jury in an action brought for trespass against any of those who have used the way now in question ? Is there any evidence to show that any such use was in the assertion of an adverse right, or without the acquiescence of the railroad company ? If not, it goes to show that the plaintiff has not sustained the burden of proof. Felton v. Simpson, 11 Ired. 84. Washb. Easements, (4th ed.) 86, 87.
It was incumbent on the plaintiff, not merely to show an adverse public use, under claim of right, continued for twenty years, but also that during that period the defendant acquiesced therein. Hennefin v. Blake, 102 Mass. 297. Acquiescence implies that the defendant knew, or had reason to believe, that there was such an adverse use. The crossing might be used as of private right by the occupants of the twenty or thirty houses built upon the land formerly belonging to Jenison. For their convenience, the way was extended to highways still further south. Persons having legitimate occasion to go to or from those houses might also rightfully use the crossing. Under these circumstances, the defendant was not bound, and probably was not at liberty, to obstruct the crossing by bars or by a gate. Williams v. Clark, 140 Mass. 238. Looking at it practically, the railroad company might find a difficulty in distinguishing between those who had a right to pass over the crossing and those who had [342]*342not. It could hardly be expected that a personal inquiry should be put to each person seeking to cross, who was not known to have a right to do so, nor is the mere posting up of a sign “ Private way ” to be deemed a prohibition of passage by others than those entitled as of right to pass along the way. O’Connor v. Boston & Lowell Railroad, 135 Mass. 352. If Pub. Sts. c. 122, § 3, are applicable to railroad corporations, it may be that the acquirement of a public right could be prevented by posting a notice as therein provided. Ballard v. Demmon, 156 Mass. 449, 453. But the omission to post such notice certainly does not show that the defendant was aware that the crossing was used by a portion of the public under a claim of right, even if the fact was so.. In determining whether there was such acquiescence as is necessary in order to establish a public right, it must always be borne in mind that mere permission is not enough. There must be something to show that such permission was accompanied with knowledge or reason to believe that the crossing was used under a claim of a public right. Until then, no question of acquiescence can arise.
In view of these explanations of the rules of law, it remains to see how far the evidence introduced meets their requirements. Without reciting it in detail, the evidence, in addition to,matters already referred to, was to the following effect. Greenwood Avenue never had been repaired by the city, or treated by it as a public way, on either side of the railroad. There was much, also, which was quite obvious to the eye, to call attention to the true character of the way. Southerly of the railroad there was a steep ascent, which was not kept in such repair as would be expected if it were a charge upon the city. The way on that side passed through an opening in the fence, less than fourteen feet wide, which was much less than is usual at a public crossing. The general use of the avenue was mainly for the houses situated upon it, but incidentally also it was used by persons going through the avenue to reach some point beyond. Anybody used it who wished to do so, and with teams and vehicles of various descriptions. At the crossing the defendant had put up within its premises a sign saying, “Dangerous passing. This is a private way.” On the outside of the fence, the city also had put up a sign saying, “Not a public way. Dangerous.” There [343]*343was no sign-board such as is required by statute where a public way and railroad cross each other on a level. Nobody was actually stopped from using the crossing. Anybody crossed there who wished to do so. No witness testified that he thought or asserted a claim that there was a public right to cross there, or that he made it known in any manner that he claimed such right. There was a general statement that the way was used the same as any highway; but no fact was testified to showing that any person who used the way or the crossing, and not having the right to do so under the reservation in the deed, did so under the belief that there was a public right to do so; much less, that he did or said anything to show such an assertion of a general public right as to distinguish him from casual travellers over the way who accepted and acted upon the permission which might be inferred or assumed from the fact that the way was left open to be used as a private way. We find nothing in the testimony inconsistent with the supposition that everybody who passed over the crossing saw the signs, or knew otherwise, or had reason to believe, that it was not a public way, and used the crossing recognizing that it was not. The acts of crossing which were testified to were as consistent with this view as with the assumption that they were under a claim of a general public right. The evidence falls still further short of showing acquiescence by the defendant in such an adverse use. It goes no further than to show a permission or assent by the defendant that others besides those entitled of right to cross at that place might use the crossing at their own risk. It does not show that the defendant knew or had reason to believe that they were using the crossing on any other terms than under its permission. Deerfield v. Connecticut River Railroad, 144 Mass. 325, 338-340.
The cases of Fitchburg Railroad v. Page, 131 Mass. 391, and Johanson v. Boston & Maine Railroad, 153 Mass. 57, which are relied on by the plaintiff, are distinguishable from the present case in various particulars.
There being no sufficient evidence to entitle the plaintiff to go to the jury upon the first count, we come to the second count, which was founded on Pub. Sts. c. 112, § 212. In order to support this count, it was necessary for the plaintiff to show that [344]*344the deceased was herself in the exercise of due diligence. The plaintiff’s evidence shows the contrary. It was an act of carelessness for the deceased to enter upon and attempt to cross the railroad tracks as she did. The approaching train might have been seen a long way off. She did not look for it. She was hurrying along over the tracks, taking no precautions for her safety. It is a plain case of a failure to show due diligence on her part. Moore v. Boston & Albany Railroad, 159 Mass. 399. Tyler v. Old Colony Railroad, 157 Mass. 336, 339, 340, and cases there cited.
The direction to return a verdict for the defendant was right.
Exceptions overruled.