The opinion of the court was delivered by

By reason of changes in the personnel of this court this cause has been twice submitted for argument, and counsel for both parties have been faithful and diligent in their efforts to assist the court in arriving at a correct conclusion.

The path upon which the plaintiff attempted to cross the yards was one that had been traveled by a number of pedestrians living on Mosely avenue south of the company’s line of road. It had been so continuously and constantly used that it was well defined, and was of itself an implied invitation to pedestrians to use it to cross from one side of the right of way to the other. The plaintiff was not, therefore, a trespasser, but was there at the implied invitation of the company, resulting from a long and continuous use of this path by the public without objection by the company.

This path, however, passed over the yards of the railway company in a populous city, where many trains were being operated daily, with all appliances and mechanical devices necessary and essential to insure the greatest safety to the traveling public. When the plaintiff entered upon this path he did so knowing that he was in a city, and would find there railroad-tracks and cars and mechanical devices used in such *530railroad yards. The jury in their finding stated that the semaphore wires were useful and essential for the safe and convenient operation of the trains in the yard. He therefore entered upon his passage over the yard chargeable with the knowledge that he would probably have to cross semaphore wires, switches, tracks, and all other devices and appliances convenient or essential for the speedy and safe operation of trains in the most convenient and safest manner known to railroad science. The public safety demands of all railroad companies the employment of such safety appliances, machinery, and other devices, and the law will tolerate none other.

The aequiesence of a railroad company in the crossing of its tracks by pedestrians in order to shorten distances at any particular place does not grant an easement to the public, nor cast upon the company the responsibility of keeping a path thus made in a safe condition for pedestrians. This principle is conceded, but it is stoutly contended that if one who permits his premises to be used by the public as a way should, without warning, negligently place an obstruction on or so near the passage that injury results to one who is in the exercise of the implied invitation, he would be liable. Conceding this rule, its inapplicability to the facts of this case makes it immaterial.

The business conducted in the yards of a railroad company in a city is inherently dangerous to pedestrians, and all persons endeavoring to cross such yards are warned of this fact. No special notice is required of this danger. The danger does not arise entirely from the operation of trains, but from the continual changes made in the surface of the earth. The pedestrian who crosses the yards of a railroad company in the morning, on a path made by constant use of the public, has no assurance that this path will remain unobstructed until noon. Notwithstanding the implied invitation, one who undertakes to cross railroad yards in a city by a path does so knowing that the land upon *531which he travels has been dedicated to a public use, the demands of which are ever changing and increasing, that these demands must be met by this public utility, and that for these purposes the yards are laid with tracks, switches, semaphore wires, and all other machinery and devices known to railroad science for moving cars and trains rapidly and with the greatest safety. This the public demands. Such a person assumes the risk of coming in contact with all such useful contrivances and essential devices. The implied invitation is given and accepted upon these conditions.-

The rule that one who permits the public to use his property as a passageway cannot have a dangerous place unprotected and in close proximity to the passageway without incurring liability for damages is well sustained by the authorities, but such cases are distinguishable from the one under consideration. The case of DeTarr v. Heim, 62 Kan. 188, 61 Pac. 689, which carries the principle to the limit, has no features similar to the present case. There the public had habitually used a path over the vacant part of a lot. Near the path stood a water-closet, under which was a vault. The owner of the lot removed the closet and covered the vault with boards, which soon became unsafe and were not repaired. DeTarr, in attempting to follow the path, missed her way in the darkness of the night, and fell into the vault. That path crossed an unoccupied portion of a lot, not used by its owner in conducting a business which was of itself notice that it was dangerous for the public to use it. Nor was it being used in conducting a business which required the surface to be changed or altered frequently. Nor did the accident come to DeTarr from coming in contact with an instrument necessary in conducting the business on the premises, and with the knowledge of the existence of which DeTarr was chargeable.

Nor does this ease come within the rule of the cases, where one undertakes to cross a railroad-track or yards upon a well-defined path and is injured by the *532negligence of the company’s employees in the operating of a train. With the rule and the reason stated in such cases by this court we are satisfied. As a matter of law the company was not guilty of negligence in not boxing its semaphore wires at the crossing of the path.

The judgment is reversed and the cause remanded.

(dissenting) : The railway company was under no obligation to keep the path in question where it crossed the track in a condition suitable for the use of foot travelers, but so long as it permitted a state of affairs to exist which amounted to an invitation to the public to use the path it was bound not to do anything to subject a person accepting such invitation to a concealed danger — one which could not be discovered by the use of reasonable diligence. The foot traveler using this path was required to take notice that he might find in proximity to the railroad-track any mechanism necessary for the operation of the road, provided he could learn of its presence by the ordinary exercise of his faculties. The semaphore wire may have been so nearly invisible as to be considered absolutely so for all practical purposes, in which case the company may be deemed negligent in placing it across the path at such a height that it would be likely to trip one using the path without taking some steps to render it visible or to give notice of its presence. The company was under no obligation to bury or box the wire, but it was a fair matter for the determination of the jury whether, under all the circumstances present, a reasonable regard for the safety of the public did not require either that the invitation to use the path should be withdrawn by the interposition of some kind of a barrier or that the wire at this place should have been so marked as to render it plainly Visible. Upon these considerations I dissent from the conclusions reached by the majority of the court.