64 N.Y.S. 925 | N.Y. App. Div. | 1900
The plaintiff’s intestate, a- child twelve years of age, was killed at a place known as “ Commercial Wharf ” in Brooklyn, in the course of the operation df a steam railroad train by the defendant. Th® engine struck a truck on which there was a .heavy box of goods, shoving it against the warehouse, and crushing the child as she was on her way to Columbia street, doing an errand for her mother. The details of. the accident are immaterial at this time. It is' sufficient to say. that they would have justified, the jury in concluding that the child was free from fault, and that the ' accident was occasioned by.the absence of ordinary care in .the operation of the train. The complaint was dismissed on the ground that, as the place-where the accident occurred was private property, used by the public only as licensees, the duty of the defendant was limited to. the refraining from constructing pitfalls and other like sources of danger, but did not extend to- the exercise of care in any degree in the operation of the railroad. This view of the defendant’s duty was erroneous, and requires a retrial of the case.
The place has been open to the public for at least twenty-eight years. It is on a line continuing Conover street, and' leading to other public streets, to Hamilton avenue and the ferry.' The use by the public during the period named appears to have been as general as the use of other streets, and to have been by pedestrians and vehicles of every description.' The defendant commenced the operation of the cars on double tracks about eight years ago, and has since continued it with full knowledge that the premises have been . and are open to and used by the public generally as a thoroughfare. Assuming that this use is only by implied license, and that no _ duty of active vigilance is thereby imposed on the defendant to protect
The-judgment should be reversed.
All concurred.
Judgment reversed and- new; trial granted, costs to abide the event.