delivered the opinion of the court.

Mrs. A. T. Byars appeals from a judgment peremptorily granted by the lower court in favor of the Yazoo. & Mississippi Valley Railroad Company, in a suit by her against the railroad company for damages for personal injuries received by her on account of falling in an excavation or ditch on its right of way while she was endeavoring to cross over the tracks to the depot at Coahoma, Miss.

Mrs. ByarS was stopping at a hotel on the east side of the railroad tracks, which run north and south at Coahoma. After dark she started to cross over the tracks to the depot on the west side of the right of way. There was a board crossing over and between the tracks placed there by the railroad company for the use of persons desiring to cross the track to the depot at that point.

Near the plank crossing, a few feet northwest of it, was a water tank from which overflow water occasionally fell to the ground near the tracks, which necessitated draining by excavation to carry this water away from the tracks. *The. section foreman of the railroad excavated between the ties in the tracks, and toward the east, so that the water would drain off toward the east where it immediately spread out and disappeared upon the right of way. The *12excavation between the ties ivas about six inches deep and ten inches wide, and ivas located at a distance of between five to fifteen feet north of the board crossing used by pedestrians.

On the night in question, Mrs. Byars, a middle-aged lady weighing about two hundred pounds, started from the hotel on the east side to cross over the tracks on the board walk to the depot on the Avest side. Before she got to the board crossing she turned and Avalked a feAV feet north of it, and there got upon the track and started to walk south on the track to the'board crossing when she stepped into the excavation between the cross-ties Avhich caused her to fall and suffer serious injury.

Mrs. Byars testified that the board crossing Avas in good condition and that the excavation in which she fell Avas several feet north of the board walk, and that she went upon the track north of the board crossing instead of going directly to it, because she thought there Avas a ditch or excavation in the pathway, on the right of way, leading from the street to the board Avalk, which she intended to cross over on in her journey to the depot. She said she had seen a negro boy fall in a ditch somewhere near that point during the day, Avhich caused her to believe there was a ditch in the pathAvay that necessitated her Avalking around and getting upon the track north of the board crossing, and then Avalking south to the board crossing so as to cross over on it. to the depot.

The conclusive evidence in the case shoAvs there Avas no excavation or ditch made by the railroad company in the pathway leading to the board crossing; that the Avater Avhich drained from the track at the tank through the excavation spread out before it reached the point Avhere Mrs. Byars thought there Avas a ditch in Avhich she might fall. The undisputed proof is that there Avas no necessity for Mrs. Byars to go upon the tracks north of the board cross-' ing in order to safely cross the railroad. The excavation between the ties was necessary to drain and protect the track, and the railroad company could not have anticipated *13that any person would use the track at that point for the purpose of walking over to the depot, instead of using the hoard walk near by. Therefore it appears conclusively that Mrs. Byars was a trespasser at the time she was injured, and was not at the place by invitation or necessity.

It is the contention of the appellant, Mrs. Byars, that the lower court erred in granting the peremptory instruction against her, for two reasons, first, that the railroad company was negligent in excavating across the pathway on the right of way which led to the board walk, as this fact necessitated her going upon the track north of the board walk in order to cross on it,' resulting in her injury by stepping into the ditch between the ties of the tracks; and, second, that, even though she had no right to be at the place where she was injured and was a trespasser, still the railroad is liable .for its willful and gross negligence in excavating between the ties, which made it dangerous for pedestrians walking upon the track.

We see no merit in either contention of appellant. At the time appellant received the injury she was a trespasser, and the railroad owed her no duty except to not willfully or wantonly injure her. There was no necessity for her leaving the safe and unobstructed pathway leading to the regular board crossing and going north to the point on the tracks where the excavation had been made to drain away the waste water from the tank: It seems that she made a mistake in doing this, which, of course, should not be charged against the railroad company. There appears to have been a reasonably safe way for the lady to have crossed the tracks to the depot. When she undertook to cross in another and unusual way, which proved to be unsafe, she did so at her own peril.

The contention that the excavation between the ties was willful negligence on the part of the railroad company is unsound. It was not negligence to excavate at that place. In fact it may be doubtful whether the excavation in this case amounted to mere negligence, though we do not decide, even if the party injured had had the right to walk *14upon the track at that point. The excavation was shallow and ivas such as any prudent person walking upon the cross-ties of a railroad track should have guarded against. I-IoAvever, since the injured person had no1 right to walk upon the track at that piont, exclusion from recovery on this ground is sufficient.

The injury to the lady is of course regrettable, but it is not a case warranting a recovery on account of the negligence of the railroad company.

The judgment of the lower court is affirmed.

Affirmed.