
    Marks N. Rosenthal, as Administrator, etc., of Edgar Felix Rosenthal, Deceased, Respondent, v. New York, Susquehanna and Western Railroad Company, Appellant.
    (No. 1.)
    First Department,
    April 20, 1906.
    Negligence — person walking on trestle killed by train —rule as to care owed to trespasser stated—judgment for plaintiff reversed.
    The plaintiff's intestate, while walking on a railroad trestle, seeing an approaching train, stepped out upon the girders supporting the ties. The engineer, seeing the intestate, brought the train to a stop and invited him,to hoard the engine. While in the act of doing so the train was struck from behind by a detached portion thereof previously out'off by “a flying switch” and the: plaintiff’s intestate was killed. ' On appeal from a judgment for the plaintiff,
    
      Held,', that- it was error for the court to,submit the question as to whether, under all the circumstances, the defendant’s servant exercised reasonable and ordinary care to avoid the accident- '. ...
    That as the intestate was a trespasser the defendant’s .servant owed no duty . other than not to injure, him wantonly or recklessly;
    That said rule was not changed by the fact that the intestate might be considered a licensee, for the right of the defendant to run its trains is paramount to the rights of licensees.
    There is a distinction between passive and active negligence. One haying a superior right of way' upon a railroad, track need not be actively .vigilant in •discovering, a trespasser, but when he has discovered the trespasser he- must then be active in-not injuring him. Lack of activity under such circumstances is reckless conduct..
    ' Appeal by the defendant,, the New York, Susquehanna and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the offiee of the clerk of the county of New York on the 16th day of May,' 1905, upon the verdict".of a jury for $6,000, a$ amended by an order entered on the 7th day of June, 1905, and also from an order entered in said clerk’s office on the 7th day of June,-1905, denying the defendant’s motion for a new trial made: upon the minutes. -
    
      Frederic B. Jennings, for the appellant.
    
      T. B. Chancellor, for the respondent.
   McLaughlin, J.:

It appeared fróm the .plaintiff’s proof that on the 16th of August, 1901, plaintiff’s intestate was walking on the ties across a single-track bridge of the defendant which span's the Delaware river at a place called Delaware Water Gap. The rails and the ties upon which they rested were elevated about three feet above the crossbeams or girders which extended between two and- three feet from the track to abutments on which they rested.

After entering upon the bridge the intestate saw ' a freight train approaching and thereupon he and his companion,, a sister, got down from the track and stood upon one of the girders at its "outer end,, supporting themselves, -by clinging to an iron rod which was part, of the. bridge. The • engineer of the train saw them while in this position and he thereupon brought the train to a stop some fifteen or twenty feet from where -they stood and beckoned to them to come back upon the track and get onto the engine. This' they proceeded to do, and when within a few feet of the engine the train suddenly started, plaintiff’s intestate was thrown from the bridge and killed and his sister seriously injured. This action was brought to recover damages for the death of the intestate upon the ground that the same was caused by defendant’s negligence. The plaintiff had a. vei’dict, and from the judgment entered thereon and an order denying a motion for a new trial defendant has appealed.

At the trial no proof was offered, nor was any claim then or upon the argument of this appeal' made, that the engine was started by the engineer ; on the contrary, it affirmatively appeared by testimony. of defendant’s witnesses^ and they were not contradicted, that the sudden starting of the train .was due to cars which had been cut off by what was termed “ a flying switch ” coming in contact with the rear end of the train. It also appeared without contradiction that it was customary for the defendant to cut off cars in this way and then proceed with the balance of the train across the bridge, the cars which had been cut off following of their own momentum.

The respondent contends that the intestate was in a place of safety when he was invited to board the engine and that it- was a negligent act on the part of defendant’s engineer to bring his train to a stop and extend the invitation which he did, knowing as he must that the moving cars which had been cut off were liable to collide with the train and thus move it forward. The trial court charged the jury that the plaintiff’s intestate was a trespasser upon the bridge, and that negligence could not be predicated upon the failure of the engineer to remember and appreciate that the care which had been cut off were coming upon the bridge and might collide with the rear of his train, but he submitted to the jury, against defendant’s exception, whether or not, under all the circumstances, defendant’s servants in chargé of the train and engine exercised reasonable and ordinary care to avoid the accident.

I am of the opinion that the. exception was well taken. The law, as thus announced, did hot correctly state the rule governing the rights of the parties. It is apparent that defendant’s engineer, or whoever was in charge of the- engine and beckoned plaintiff’s' intestate, and cqmpanion to board the engine, did what seemed for the moment not only a safe but proper' thing to do' in order to relieve them from either an actual or supposed danger. It may well be doubted', tinder the facts proved, whether the intestate and. bis-co mpanion were, as contended by the respondent, in a place of safety or that they would not have been injured had the train pro.-, ceeded without stopping. But assuming the contention to be correct, and the engine and cars did not project sufficiently over the rail to brush" them off the girder where they Were standing, nevertheless the jar of the traih or fright might have caused them to fall. In any event, it cannot be said that the mere stopping of the train and inciting them from a place of possible peril to- one of supposed safety was -either an unreasqnable, negligent or wanton act. The law as laid down by the trial court was that-the plaintiff’s intestate Was a trespasser. This being so, the defendant and its employees owed no duty to him other than not to intentionally, wantonly or recklessly injure him. (Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243 ; McKenna v. N. Y. C. & H. R. R. R. Co., 8 Daly, 304 ; 2 Thomas Neg. [2d ed.] 2140.) But it is insisted by the respondent that the intestate was a licensee, and the trial court, therefore, erred in holding that he was a trespasser. It may well be doubted whether the evidence was sufficient to sustain a finding that the intestate was a licensee, but even if this be assumed, and that the court on appeal'is not bound by the law of the case as laid down by the trial court, it does not aid the respondent,, because the in tes-' tate’s license- Was subject to the defendant’s right to operate its road, and the- -rule with respect to intentional, wanton or reckless acts equally applies. (Keller v. Erie R. R. Co., 183 N. Y. 67; Nicholson v. Erie R. Co., 41 id. 525 ; Lagerman v. N Y. C. & H. R. R. R. Co., 53 App. Div. 283.) It certainly cannot be said that the act of the engineer — even if he did momentarily forget or fail -to appreciate that the cars which had been cut off might" collide with the train and cause it to move forward while the intestate and his companion were getting aboard the engine —• was a negligent, reckless or wanton .act. On the contrary, what was done was manifestly by way" of precaution to avoid injury. The trial court, therefore, correctly charged that negligence could not be predicated upon the failure of defendant’s engineer to appreciate that the moving cars in the rear might come on and hit that portion of the train which was brought to a standstill and thus cause it to move forward.

The respondent’s attorney challenges the correctness of the rule as to the necessity of proof of reckless, wanton and intentional acts as against a trespasser and insists that the rule is that when one sees another in a place of danger, although a trespasser, he should use reasonable care to avoid injuring him. But there is no conflict between the two rules. The difficulty arises in failing to distinguish between passive and active negligence. One having a superior right of way upon a railroad track, for example, need not be actively vigilant in discovering a trespasser-, but when he has discovered him, then he must be active in not injuring him. Back of activity, under such circumstances, becomes reckless conduct. This rule is well illustrated and the distinction is-pointed out in the case of Weiler v. Manhattan R. Co. (53 Hun, 373 ; affd., 127 N. Y. 669).

Here, when the engineer discovered plaintiff’s intestate and his companion upon the bridge, he immediately brought his train to a stop, instead of running by and taking the chances of injuring them. He could hardly, in reason, have been expected to do anything else. The position they were in was apparently a very dangerous one. Had he proceeded with his train and had they been thrown or fallen from the bridge, the accident, if possible, would have been even more deplorable than it was and the engineer would have been justly censurable for not stopping the train before passing and affording them an opportunity to get from a place of at- least apparent danger to one of safety. The invitation of the engineer to board the engine was for the purpose of getting them into a position of safety, and while it resulted in an unfortunate accident, it did not make him nor the defendant responsible for the. consequence.

The judgment appealed from is attacked upon other grounds, but the conclusion at which I have arrived renders it unnecessary to pass upon them.

If the foregoing views be. correct, then it- follows that the judgment and order appealed from must be reversed and' a new .trial granted, with costs to appellant to abide .event. " '

O’Brien, P. J., Ingraham, Clarke and Houghton JJ., concurred.

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