Antonio v. Long Island Railroad Company, Inc., 290 N.Y. 718

Antonio v. Long Island Railroad Company, Inc.

290 N.Y. 718 | NY | 1943

Lead Opinion

[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] Judgment affirmed, with costs; no opinion.

Concur: LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, CONWAY and DESMOND, JJ. LEWIS, J., dissents in the following opinion.

Dissenting Opinion

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 could 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.,183 N.Y. 67, 71, 72; Gleason v. Central New England Ry. Co.,261 N.Y. 333, 335-337.) Accordingly, I dissent. *721