McKenna v. New York Central & Hudson River Railroad

8 Daly 304 | New York Court of Common Pleas | 1879

Van Brunt, J. [after stating the facts as above].

There can be no question but that the admission of evidence in reference to air-brakes was entirely incompetent, because the defendants owed no duty whatever to the deceased to guard him from accident, and can be only held liable for an intentional, wanton, or reckless injury. The deceased had no right to be on the steps of the car from which he fell, or to jump therefrom while the train was in motion ; and the defendants cannot be required to equip their trains for the purpose of avoiding accidents to persons who jump on the track from trains passing in an opposite direction.

The_ deceased, when upon the defendant’s track, was a trespasser, and unless the engineer of the down train intentionally,-wantonly, or recklessly ran over him, the defendants cannot be held liable. (Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243 ; Johnson v. Boston Maine R. R. Co., 125 Mass. 75.) It was claimed upon the argument by the counsel for the plaintiff, that when the deceased first fell upon the track the down train was from one to six hundred feet distant, but I have searched the case in vain for any evidence which by the most liberal construction designates the distance at greater than three hundred feet, and the evidence shows that the train could not have been stopped within that distance by the brakes with which it was equipped. It further appears that when the engineer' and fireman of the down train first saw the boy after he had fallen he was lying in a position where the train would not strike him, but that after the train had almost passed him, the boy moved and was struck.

They were certainly not required to stop the train in case they could pass the boy without injury, and they certainly were not guilty of wanton negligence in going on.

Upon the proof as it stands no cause of action was made out against the defendants. The principles which must necessarily be the starting point in the discussion of the law applicable to the facts in this case are, that the deceased was a trespasser upon the defendant’s road, and that the defendant owed no duty to the deceased to guard him from accident, and can only be held liable if the injury was intentional, wanton, or reckless.

The evidence in this case entirely fails to bring it within the principle last above mentioned. The judgment must be reversed with costs to the appellant to abide the event.

Beach, J., concurred.

Larremore, J., dissented.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.