Holmes v. Delaware & Hudson Co.

112 N.Y.S. 421 | N.Y. App. Div. | 1908

Sewell, J.:

I am of the opinion that the evidence did not show that the defendant was guilty of a violation of duty, and that no question was made for the jury in that respect.

The claim of the plaintiff rests upon the assumption that the defendant invited, enticed or allured him to come upon the railroad tracks. The claim is not tenable. The plaintiff was not invited upon the railroad tracks in any sense further than that the defendant had not taken occasion to prevent the public from using it as a foot path. It had procured the torpedo for its own use upon its own property. It was necessary for properly conducting its own business. It was not improperly or negligently "made. It was fit for the purpose intended, and for all that appears it was necessary to ' have it where it was found. There is nothing in the record which justified the assumption that the defendant enticed, allured or invited the plaintiff to come upon its land; indeed, one of the statutes of the State provided that “No person other than those connected with or employed upon the railroad shall walk upon or- along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.” (Railroad Law [Laws of 1890, chap. 565], § 53, as amd. by Laws of 1892, chap. 676.)

Under such circumstances, the plaintiff was there by sufferance only and the company did not owe him the duty of active vigilance to see that he was not injured while upon its land for his own convenience. A license creates no legal. right and imposes no duty upon the owner except the general duty which every man owes to another to do him no intentional wrong or in jury. (Nicholson v. Erie Railway Co., 41 N. Y. 525 ; Larmofe v. Crown Point Iron Co., 101 id. 391; Cusick v. Adams, 115 id. 55.)

The same principle was asserted in Walsh v. F. R. R. Co. (145 N. Y. 301), where, as in this case, the negligence, if any, was passive and not active, of omission and not of commission! There a child five years and nine months old went upon a plot of ground on which there was a turntable and in company with other boys was turning it around when his leg was caught and injured. It was held that the defendant owed him a duty not to injure him intentionally but owed him no duty of active vigilance. The court said : “ The table might have been kept so fastened or locked when not in use that people could not turn it without unfastening or unlocking it, and the defendant might even have built a wall around it so high and guarded it so closely as to prevent any access to it by children at any time. But was defendant bound to do so ? Did it owe any such duty to the public or to this plaintiff ? * * * We do not assert that the defendant owed no duty to the plaintiff under the circumstances existing, but we think it did not owe the duty of such active vigilance as would be necessary to exist in order to send the case to the jury and permit it to find the defendant guilty of negligence in this case.”

In considering this branch of the case, it may also be observed that the defendant was not required to employ men to keep travelers off the track, or to warn them of the result of a wrongful destruction of property procured by it for the sole purpose of properly conducting its own business on its own land. If such a doctrine is sustained I can see no limit to what may be required of a railroad company to relieve it from a charge of negligence. Assuming that the defendant was negligent it cannot be said that it caused the injury. The negligence of the plaintiff in striking the torpedo with a stone, and the negligence of his brother in giving it to him, were intervening and responsible ■ causes of the accident. The immediate cause of the plaintiff’s injury was the act of the plaintiff. That was the natural and efficient cause. It also proceeded from the act of the brother, which was also an intervening cause, without "which the accident would not have happened. The mere presence of the torpedo upon the track without the intervention of these independent causes would not have produced the accident. It was harmless on the "track. It was harmless in the hands of the brother, and was harmless in the hands of the plaintiff until he caused the explosion'by deliberate and intentional violence.

In my opinion the negligence of the defendant, if any there was, was a remote cause, and not the natural or proximate cause of the injury.

I am also of- the opinion that the negligence off the plaintiff caused the accident. He not only failed to exercise the least care or precaution in attempting to open the torpedo but he consciously and intentionally resorted to extreme violence for the obvious purpose ' of destroying it. In other words, the explosion was the direct result of a deliberate and wrongful destruction of the defendant’s property by the plaintiff. For this reason it seems quite clear that the plaintiff was not entitled to recover. It necessarily follows that the judgment and order must be reversed and a new trial granted, with costs, to abide the event.

All concurred; Smith, P. J., Kellogg and Cochrane, JJ,, in result.

Judgment and order reversed and new trial granted, with costs to appellant to abide event,