81 N.Y.S. 1097 | N.Y. App. Div. | 1903
These actions are brought to- recover damages for false imprisonment. At the close of the plaintiffs’ evidence the court, Mr. Justice Gaynor, dismissed the complaint, and the plaintiffs appeal.
The plaintiffs were arrested at the instance of the defendant on a charge of trespass on the tracks of the defendant at the line of Bogart street. The railroad runs east and west along Montrose avenue, Brooklyn. Bogart street runs at right angles to the road. The defendant contends that there is no sufficient evidence that Bogart street, where it would cross the railroad, was ever used or accepted by .the public as, and is not, a highway.
The complaints against the plaintiffs were made under section 53 of the railroad law (2 Rev. St. [9th Ed.] p. 1282), which reads in part as follows :
“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.”
There is no penalty imposed by the railroad law for a violation of the section, but section 155 of the Penal Code provides that in such a case the violation of the statute is a misdemeanor. The plaintiffs were attempting to cross the defendant’s tracks at Bogart street, when they were arrested and taken before a city magistrate, and, being found not guilty of the offense charged, were thereupon discharged; but
The several judgments should be affirmed, with costs. All concur, except HOOICER, J., dissenting.
[ 3. See Dedication, vol. 15, Cent. Dig. §§ 37, 64.