Lead Opinion
Judgment affirmed, with costs; no opinion.
Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ. Lewis, J., dissents in the following opimon.
Dissenting Opinion
(dissenting). The respondent has recovered damages for injuries sustained when he was struck by a train on the appellant’s right-of-way at a point of danger removed from any thoroughfare. The record, as I view it, discloses no evidence from which the jury cpuld find that at the time and place of his injuries the respondent was either a licensee or a business invitee of the appellant. On the contrary, the respondent was in a legal sense a stranger to the appellant. Being then and there engaged in his own pursuits, he was a trespasser at common law and by statute (Railroad Law, § 83; Penal Law, § 1990). In those circumstances the appellant owed no duty to the respondent except to refrain from inflicting intentional or wanton injury.
(Keller
v.
Erie R. R. Co.,