96 N.Y.S. 810 | N.Y. App. Div. | 1905
The respondent, a-lad then about seven years of age, was injured in the village of Kyaclt on the 18th day of April, 1903,* by the fall of a portion of a pile of •curbstones upon which he was playing tag with other youthful companions.' The pile of. stones was situated partly upon a highway and partly upon land belonging to the appellant railroad company. The appellant has been held liable for the injuries sustained by the respondent upon the ground that it did not exercise reasonable care and prudence in permitting the pile of stones to.remain upon its land in the condition in which it was at the time of the accident. I am unable to find sufficient evidence in the record to warrant a finding against the railroád company-fin this respect. Under the circumstances 'disclosed by the proof I think the case falls - within the doctrine of Walsh v. Fitchburg R. R. Co. (145 N. Y. 301), and that the appellant is not shown to have neglected any duty which it owed to the plaintiff, who came upon its land without any express or implied invitation so to do..
It appears that the stones were unloaded at Kyack from one of the appellant’s cars under the direction of the consignees, a firm known as Gregory & Sherman, about the 18th day of July, 1902, and subsequently as stones were' sold from the pile they wpre removed from time to time under the supervision of the foreman of the firm. The agent of the railroad company at BTyack was aware that the pile of stones was there, but further than this there is nothing to show that the defendant had any notice that the condition of the pile was such as to be. likely to occasion in jury to any one. Kor indeed is there any proof that, the appearance of the pile ever indicated the likelihood of such an accident as in fact occurred. It is stated in the brief of counsel for the respondent that at least one witness; namely, John J. Phillips, testified that for some days prior to the accident the pile of stones was in a dangerous condition and
It seems to me that it would be going too far to hold that a landowner is responsible for the consequences of the fall of a pile of stones knocked down by the antics of a number of boys, on private premises which they have entered without invitation, simply because such owner has allowed the pile of stones to remain there without there being anything in its appearance to indicate that it was likely to prove dangerous, even to trespassers. '
It seems to me that we ought to reverse this judgment.
Woodward, Hooker, Rich and Miller, JJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.