95 N.J.L. 494 | N.J. | 1921
The opinion of the court was delivered by
The plaintiff was injured while walking along defendant’s right of way, near Tuckahoe station, in Cape May county., by being struck by one of defendant’s engines. The trial court nonsuited, upon the ground that the plaintiff at the time occupied the status of a trespasser, while the gravamen of the plaintiff’s case was that he was there by implied invitation, and occupied tire status of an invitee or at least a licensee.
The plaintiff had been an employe of the defendant, both as a fireman and engineer, and therefore his knowledge of the locus in quo■ was superior to that of a stranger, who might be said to be inveigled by appearances; and yet appearances even to a stranger in this situation were not of an inviting character; for it was in evidence that at the point where the tracks cross the public road, twelve hundred feet north of the station, towards which the plaintiff was directing his
In the Corson case we declared that “under normal conditions the existence of a worn path across railroad tracks to a station cannot be relied on as an invitation to use that path so as to malee the railroad company responsible for injuries due to mere negligence, so long as there is a safe pathway provided for such access.”
In the case sub judice such a road or pathway was in ex-, istenee, and publicly known and traversed with the knowledge of this plaintiff. But it is obvious that for the purposes of his own convenience, he availed himself of the use of this right of way, against his better knowledge, and the experience of the inherent dangers of adopting such a course, as well as in the face of the posted warning that his act would be tantamount to the act of a trespasser, and as such was prohibited by the statutory railroad law of the state, section 55, Railroad and Canal act. Comp. Stat., p. 4245.
It becomes manifest, therefore, that the act of tire plaintiff • in these circumstances places him in the legal category of a trespasser, to whom no duty was' owing' bj the defendant, excepting that of refraining from- the perpetration of an act of willful or wanton injury. Phillips v. Library Co., 55 N. J. L. 307; D., L. & W. R. R. v. Reich, 61 Id. 635.
The judgment will be affirmed.