24 N.E.2d 312 | NY | 1939
The infant plaintiff, a seven-year-old boy, was struck by a trolley car operated by the defendant railway company upon a private right of way, which it owns. He sustained very serious injuries. In this action to recover the consequent damages, judgment in his favor was entered, upon the verdict of a jury, in the sum of $20,000, and in favor of his father in the sum of $3,000. Upon appeal to the Appellate Division, the judgment was reversed on the law and the complaint dismissed.
At the point where the accident occurred the railroad track was not "laid across or along streets or highways" and it is said that any person walking across the tracks violated the provisions of section 83 R.R. of the Railroad Law (Cons. Laws, ch. 49) and section 1990 of the Penal Law, and became a trespasser, who may recover damages caused by the negligence of employees of the railroad company only where such negligence is willful or wanton. Here the *520 plaintiffs' evidence, which upon this appeal we must accept as true, establishes that the infant plaintiff was crossing the track from west to east on a pathway that had been beaten down by others who had crossed there in the past and that the motorman failed to exercise the vigilance which a reasonably prudent person would have exercised at a point where persons have long crossed the track without objection from the railroad company. There is no evidence of willful or wanton negligence. The question, then, to be decided in this case is whether the infant plaintiff was, as matter of law, a trespasser on the defendant's property, to whom the railroad company owed no duty of vigilance.
In Keller v. Erie R.R. Co. (
What was there said was, of course, unnecessary to the decision and it received the full concurrence of only three judges. One judge was absent and two judges, though concurring in the decision on the ground first stated in the opinion, "expressly dissented from the last ground upon which the judgment is based by the prevailing opinion" (p. 73). CULLEN, Ch. J., concurred with the dissenting judges "in the proposition that by long user the public may acquire, despite the terms of the statute, a presumptive right to cross a railroad track at a point that is not a street or highway. The proposition seems to be sustained by the authorities * * *. The command of the statute is explicit and subject to no qualification, that a person other than an employee of a railroad shall not walk upon its tracks except where it is necessary to cross the same. The deceased was not only crossing the tracks of this defendant at a point that was not a highway or street crossing, but he was traveling along the tracks of the New York Central Railroad Company. * * * In the face of the express command of the statute the public cannot by user acquire the right to use the tracks of one railroad as a highway and, therefore, it cannot acquire the right to cross the tracks of another railroad at its intersection with the first" (p. 77). Only subject to the limitations set forth in this memorandum of CULLEN, Ch. J., did the prevailing opinion obtain the concurrence of a majority of the court.
In spite of the divergent views expressed by the members of this court who sat in the Keller case, the rule of law stated in the prevailing opinion has been generally followed, at least where a person was injured while walking along a railroad track and not while merely walking across it. (Jerzewski v. ErieR.R. Co.,
Thus in the case of Lamphear v. N.Y.C. H.R.R.R. Co.
(
The distinction which the court has drawn is this: For the protection of the traveling public, as well as the railroad companies, the State has forbidden persons other than employees of the railroad companies to 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, §
It is true that under a literal construction of the statute a person crossing the tracks of a railroad company, even with the consent of the company, except at a public street or highway, would be acting unlawfully and the railroad company could not, either by affirmative act or by long continued inaction, create a public passageway where there is no street or highway. Such a construction would, however, ignore the evident intent of the statute and produce a result so unreasonable that it could not have been contemplated by the Legislature. The prohibition, it should be noted, applies only to persons walking along or upon the tracks. The same section provides that "any person riding, leading or driving any horse or other animal upon any railroad * * * other than at a farm or street or forest crossing, without the consent of the corporation, shall forfeit to the people of the state the sum of ten dollars, and pay all damages sustained thereby to the party aggrieved." (Railroad Law, §
The question remains whether in this case there is proof that at the time of the accident the infant plaintiff was crossing the defendant's track upon a way or passage which had become a public way by acquiescence or invitation of the defendant railroad company. The defendant company had, in this case, done no affirmative acts which might be considered an invitation to the public as in the case of Lamphear v. N.Y.C. H.R.R.R. Co. (supra), but it appears from the evidence that, at least until six months before the accident, the public, with the knowledge of the railroad company and without objection from it, crossed the tracks of the railroad company at or near the point where the accident occurred. A well-marked path had been worn down from a highway on one side of the tracks, across the tracks, to a highway on the other side, and was used by many persons as a short cut. A street, Avenue Y, which otherwise would have connected these highways, stopped on one side a short distance before it reached the tracks. If Avenue Y were cut through it would cross the tracks where the pathway had been worn down. The proof that a public way existed there, with the implied permission of the railroad company, until six months before the accident is, perhaps, not as persuasive as the proof in the case of Skzypek v. Long Island R.R. Co. (supra), but it is, plainly, sufficient to sustain such a finding.
The defendant does not, indeed, seriously dispute that there is evidence that at one time there was a public way across its tracks. It maintains that six months before the accident it gave unequivocal notice to the public that it withdrew any permission it might previously have given to the public to use its premises as the public way. (Cf. Erie R.R. Co. v. Burke, supra.) It is undisputed that the railroad company did put up a fence on one side of the tracks across the place where Avenue Y would, if continued, cross the tracks, and placed upon the fence two signs, reading "Private Property. No Trespassing." The fence effectually stopped drivers of vehicles who might have trespassed upon the property. It did not stop pedestrians who continued to *525 cross the tracks there, wearing down a path at one end of the fence. On the other side of the tracks the defendant placed no fence or signs and the jury has found that the plaintiff crossed from that side. The fence and signs gave unequivocal notice that vehicles might not be driven across the tracks but from the position of the fence and signs on only one side of the track, and from the circumstance that without objection from the railroad company the public continued to walk across the track, a question of fact arose whether the railroad company intended and could reasonably be understood to have intended to give notice that it withdrew the permission previously given to the public to use its premises as a right of way for pedestrians.
For these reasons the judgment of the Appellate Division should be reversed and that of the Trial Term affirmed, with costs in this court and in the Appellate Division.
CRANE, Ch. J., HUBBS, LOUGHRAN, FINCH and RIPPEY, JJ., concur; O'BRIEN, J., taking no part.
Judgment accordingly. *526