Barry V. Southern Pac. Co‪.‬

It is the contention of appellant that he was a licensee and that appellees owed him the duty as such. We will take cognizance of two of the assignments of error; namely, "The Court ignored the well-established rule applicable in such cases, that to look is to see" and "That the Court arbitrarily rejected the undisputed evidence that appellees had the last clear chance to avoid injuring appellant." With reference to the other assignments of error we concur in the contentions of appellant that the evidence fairly well discloses that he was lying in or partially in the pathway between the rails of the track. Before attempting to analyze the law applicable to the facts, the following principles of law must be taken into consideration. First, we must determine: Who is a licensee? We quote with approval the following accepted definition: "A licensee is a person who is privileged to enter or remain upon land by virtue of the possessor's consent, whether given by invitation or permission." Restatement of the Law, Torts, vol. 2, § 330. A portion of the comment appearing in subsection (d) under this section reads as follows: "* * * So too, if there be a local custom for possessors of land to permit others to enter it for particular purposes, residents in that locality and others knowing of the custom are justified in regarding a particular possessor as conversant with it and, therefore, in construing his neglect to express his desire not to receive them as a sufficient manifestation of a willingness to admit them. Thus, if it be a custom in a particular town for owners of vacant land to permit persons to cut across it, one doing so is a licensee unless by posted notice or otherwise the particular owner objects to the practice. Familiar intimacy may also justify the assumption of consent to such visits as friends customarily pay to one another."