
    Herman Gunther, as Administrator, etc., of Herman Gunther, Jr., Deceased, Appellant, v. The New York Central and Hudson River Railroad Company, Respondent.
    
      Negligence—death of one walking on steam railroad tracks— the fact that a freight train prevented his crossing the tracks did not justify their use as a pathway — duty of the rail/road company to him,.
    
    In an action brought against the New York Central and Hudson River Railroad Company to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the defendant’s tracks in the city of New York were located along the Hudson river west of Riverside drive; that the cross streets terminated at á retaining wall east of the tracks; that at Sixty-seventh street a footbridge had been erected by the defendant over the tracks; that at Seventy-second street there was a flight of stairs leading down to the lower edge of Riverside Park, and that from this point there was a ladder leading to the tracks; that at. Seventy-ninth street there was a crossing at which a flagman Was stationed. In the river opposite Seventy-second street was a raft and tavern frequented by fishermen and others desiring refreshment.
    It further appeared that the intestate lived in Sixty-fifth street, and that on the evening in question he had been fishing from the raft; that when he started homeward, about half an hour after sunset, a freight train blocked the way to the stairs at Seventy-second street; that instead of waiting for the freight train to move he walked southerly along one of the north-bound tracks.; that at a point between Seventieth street and Sixty-ninth street he was «truck and killed by a train which was running backwards in a southerly direction and which had given no warning of its approach.
    There were no signs forbidding people to walk upon the tracks between Seventy-second street and Sixty-seventh street, and fishermen and visitors to the tavern frequently walked thereon. The raft and tavern were, so far as appeared, the only structures located west of the tracks which were not devoted to railroad purposes.
    
      Held, that the complaint was properly dismissed;
    That the use of the tracks between Seventy-second street and Sixty-seventh street as a pathway was merely by sufferance of the railroad company and at the risk of the persons using the same, and that the only obligation which the railroad company owed to such persons was to refrain from doing them wanton and willful injury;
    That the fact that the intestate did not desire to wait until the freight train, which blocked the way to the stairs at Seventy-second street, had passed, did not justify him in making use of the tracks as a pathway to the steps at Sixty-seventh street.
    Appeal by the plaintiff, Herman Gunther, as administrator, etc., of Herman Gunther, Jr., deceased, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of New York on the 13th day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and. also from an order entered ia said clerk’s office on the 20th day of February, 1902, denying the plaintiff’s motion for a new trial made upon the minutes.
    The action was brought to recover damages for the death of the plaintiff’s intestate, who, at about seven o’clock in the evening of August 25, 1901, while walking with several companions southward upon the defendant’s tracks, which are along the Hudson river west of Riverside drive, was struck when between Seventieth and Sixty-ninth streets by a train running backwards and going also in a southerly direction and instantly killed.
    The train consisted of. a car and a caboose pushed by an engine, and on the head platform of the caboose was a green light. It was about half an hour after sunset. The deceased and his friends had previously looked backward, but had not seen the train and no warning of its approach was given excepting that when it came along someone on the train cried out as in fear of an accident, and the companions of the plaintiff’s intestate who followed him upon the track, were thus apprised of its proximity and enabled by jumping to one side barely to escape with their lives. The train after striking the man continued on its way until it came to a stop at Sixty-seventh street.
    The deceased lived in Sixty-fifth- street and had been fishing with others from a raft in the Hudson river opposite Seventy-second street, this raft being alongside a house or tavern built upon piles over the water and frequented for at least five years previously by fishermen and others desiring refreshment. Easterly of the tracks was a retaining wall which, as shown by the testimony and the diagram offered in evidence, was at Seventy-second street about forty-four feet high and at Sixty-seventh street about thirteen feet in height. At this-wall the cross streets, terminated and at Seventy-second street there was a flight of steps leading down to the lower edge of Riverside Park and from this point there was a ladder for descending a few feet further to the tracks. At Sixty-seventh street a footbridge had been erected by the defendant over the tracks and stairs led to the ground west of the four main tracks. Above Seventy-second street thére was a crossing at Seventy-ninth street at which a flagman was stationed. No signs were provided forbidding people to walk upon the tracks. It was testified that when the plaintiff’s intestate started homew-ard there was a line of freight cars standing on the easterly track which blocked the way to the stairs at Seventy-second street, and he" turned southward and walked with his companions along one of the north-bound tracks. There is evidence that people were in the habit of coming to the river to fish and to visit the tavern on the river front opposite Seventy-second street, and were frequently seen walking upon the tracks between that point arid Sixty-seventh street. It does not appear, however, that west of the tracks between these two streets there were buildings or docks owned or used by persons other than the railroad, but, on the contrary, it was testified that in addition to the four main tracks, there were many switch and spur tracks forming a yard used by the defendant extending from Seventy-second to Sixtieth street, and in which there were a roundhouse, elevators and other structures devoted to railroad purposes.
    The court upon the evidence granted the defendant’s motion made at the close of the plaintiff’s case to dismiss the complaint, and from the judgment so entered the plaintiff appeals.
    
      
      Thomas P. Wickes, for the appellant.
    
      Robert A. Kutschbock, for the respondent.
   O’Brien, J.:

In contending for a reversal of this judgment the appellant insists that where the ^public for a long period of time have notoriously been in the habit of walking upon, along or across the tracks of a railroad at a point not in the traveled public highway with the acquiescence of the railroad corporation, this acquiescence amounts to a license and imposes the duty upon the corporation, as to all persons so using the tracks, to exercise reasonable care in the running of its trains so as to protect them from injury; and that whether under the circumstances of a given case a- railroad corporation did exercise such care is a question of fact for the jury. In support of this contention many cases are cited in this and the Federal jurisdiction ; but the distinction between the facts of these cases and those in the case at bar can be made apparent.

In Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 289) it appeared that the owners of lots abutting on the railroad at this point had a right of way across the defendant’s tracks and that for more than thirty years the public were in the habit of crossing the tracks at this point to reach Madison and other streets lying northerly and easterly of the railroad, the proof being that several hundred people crossed there every day; ” and the court said: There can be no doubt that the acquiescence of the defendant for so long a time in the crossing of the tracks by pedestrians, amounted to a license and permission by the defendant, to all persons to cross the tracks at this point. These circumstances imposed a duty upon the defendant in respect of persons using the crossing, to exercise reasonable care in the movement of its trains. The company had a lawful right to use the tracks for its business, and could have withdrawn its permission to the public to use its premises as a public way, assuming that no public right therein existed; but so long as it permitted the public use, it was chargeable with knowledge of the danger to human life from operating its trains at that point, and was bound to such reasonable precaution in their management as ordinary prudence dictated to protect wayfarers from injury.” In Byrne v. N. Y. C. & H. R. R. R. Co. (104 N. Y. 362) there was “ evidence tending to shew that there was an alley, at the place where the plaintiff was injured, which was extensively and notoriously used by the public, without any objection on the part of the defendant, or any question as to the right of. all persons so to use it; ” and there the ' court held that the acquiescence of the railroad corporation amounted to a license and imposed upon it the duty as to all persons so crossing to exercise reasonable care in the running of its trains so as to protect them from injury; and the fact that a bell is rung where a train is backing toward the crossing does not as matter of law establish reasonable care, but it is for the jury to determine as to whether under the circumstances any other precautions should have been taken. In De Boer v. Brooklyn Wharf Co. (51 App. Div. 289) it appeared that the place where the plaintiff was injured had “ been open to the public for at least twenty- ' eight years ” and was “ on a line continuing Conover street, and leading to other public streets, to Hamilton avenue and the ferry;” and the use by the public was as general as the use of • other streets both by pedestrians and vehicles, and the defend ' ant was held to owe to them the exercise of reasonable care in "the movement of its trains. And in Felton v. Aubrey (74 Fed. Rep. 350) it was held (head note) that “ if it is shown that the public has for a long period of time customarily and constantly, openly and notoriously, crossed a railroad track at a place not a public highway, with the knowledge,and acquiescence of the company, a license or permission by the company to all persons to cross, the tracks at that point may be presumed.”

All these cases, therefore, point out what is the well-settled rule of law that where a passageway or a lane or other facilities are provided for or allowed to the public for crossing tracks, and the ■ public have used such means openly and notoriously for some length of time, the duty rests upon the railroad company to exercise care in the management of its trains while approaching such passageway • or lane similar to that demanded of them in approaching and crossing a public street which has been intersected by the tracks. Although such a passageway exists by which the public may go, " across the tracks and this may —= depending upon the degree of care exercised — impose a liability upon the company, it would do so only with respect to persons who were injured while crossing the tracks at such place; and the existence of the passageway would not justify persons using it as a means of reaching the tracks and then proceeding upon them beyond that point for their own convenience. In other words, it will be noted that it is only for those who are injured at public crossings or at such other places as are equivalent to public crossings that the law imposes upon the railroad company the duty of exercising care.

If the plaintiffs intestate after coming down the steps leading from the eastern embankment or retaining wall at Seventy-second street to cross the tiacks, in order to reach the public house or wharf on the other side where people were accustomed to go to fish or obtain refreshments, was, while so crossing, opposite Seventy-second street, injured through the negligence of the defendant, and without fault on his part, then there would be much force in the contention that the principle established in the cases cited should here be applied. He was, however,- injured between Sixty-ninth and Seventieth streets while proceeding along the tracks for the purpose of reaching steps leading from the embankment or retaining wall at Sixty-seyenth street. His failure to cross the tracks and go up the steps at Seventy-second street is sought to he excused and explained by the statement that there was a freight train which intercepted passage at that point, and that as he lived in Sixty-fifth street it was more convenient for him and his companions, in preference to waiting, to use the tracks as a pathway to .the steps at Sixty-seventh street. It was while so using them and when between Seventieth and Sixty-ninth streets that he was struck. The fact that there were stairways at the streets named which enabled persons to cross and reach the river front did not justify nor could they be regarded as an invitation or giving a license to persons to use the railroad tracks between Seventy-second and Sixty-seventh streets as a pathway or street at their convenience.

This intervening space constituted part of the yard of the railroad company; and it does not appear that between Seventy-second street and Sixty-seventh street west of the tracks on the river front there were any buildings or docks belonging to or any business conducted by persons other than the company for railroad purposes, except, as stated, the small house or tavern which was used by the fishermen, and furnished to them and others who might go there for refreshments — which house was opposite Seventy-second street.

We are not now concerned with what would he the rights of •railroad employees who. may have been obliged in order to reach portions of the yard near the river front to use the tracks for' that ■.purpose; and there is certainly nothing in this record to show that ■ the public had any right: to infer an invitation on'the part of the railroad company either express or implied to use them as a pathway or ■street. If it had appeared that persons other than the defendant had erected buildings or leased property west of the railroad track and along the river front and that to reach such premises for the purpose of business or trade it was necessary to use the tracks as a passageway, and if it further appeared that the public had openly and notoriously been allowed so to use them for any considerable length of time, then an entirely different question would be presented. There is evidence, it is true, that persons had been seen walking upon the tracks; but unless it were further shown that they ■so used them in their ordinary course of business as matter of necessity and had the right or had been allowed to go upon them in order to reach places west of the railroad, the company would not be obliged to take notice of their frequenting and using the tracks. With respect to people who merely went to the river front to fish and for their own convenience or pleasure selected places hot opposite the steps at Seventy-second and Sixty-seventh streets, and in this manner Were upon the -defendant’s property, it was not called upon to .exercise care because it had no reason to expect that they would :use the tracks as a pathway nor had they a right so to use them. .'.Such use was merely by sufferance and at the risk of those who ventured upon them, and the rule imposing the duty upon the com' .pany of exercising care at crossings or passageways openly and notoriously frequented by the public would not be applicable.

In principle, therefore, we can see no distinction between the ■ duty devolving upon the railroad company under the facts here .appearing and that which existed in the cases of Downes v. Elmira Bridge Co. (41 App. Div. 339) and Lagerman v. N. Y. C. & H. R. R. R. Co. (53 id. 283). In the former it appeared that a dock on which plaintiff was injured had been used when in normal condition •..by the general public for the .purpose of business, but at the time the plaintiff met with the accident a reconstruction of the dock was in progress. The court held that “This being private property and the condition of the dock being such as to indicate that the public right of use was interrupted, the obligation, of the defendant was quite different from what it would have been had the work been prosecuted in a public street. * * * The disarranged condition of the dock, and the character of the work being prosecuted thereon, exclude the implication of an invitation to the plaintiff to come thereon, and under such circumstances no duty was imposed to take affirmative steps to guard from danger persons who trespass thereon or who are there by sufferance. (Victory v. Baker, 67 N. Y 366; Flannigan v. The American Glucose Co., 33 N. Y. St. Repr. 867; McAlpin v. Powell, 70 N. Y. 126.) The intestate’s right, therefore, was to be protected from wanton and willful injury; beyond this the defendant owed him no obligation. (Boyle v. N. Y., L. E. & W. R. R. Co., 39 Hun, 171; affd., 115 N. Y. 636.) ” In Lagerman v. N. Y. C. & H. R. R. R. Co. (supra) the plaintiff was standing upon a retaining wall of the Hudson river westerly of the defendant’s tracks fishing, and laying his pole down, he walked in an easterly direction and was struck by a car suddenly moved backward without notice or signal and was injured. The court said: “We are unable to see any basis in these facts to support a recovery. The most that can be said is that the plaintiff was at this particular place by the sufferance of the defendant. It does not appear that he had any license to be on the defendant’s premises at this point, and his act in going there did not raise any presumption of right by license. If he was not, therefore, a trespasser, he could claim no higher right than that of being there by sufferance. He was not invited but only permitted to be at that point. And this condition did not impose upon the defendant the obligation of observing care in any degree for the protection of the plaintiff. The only obligation resting upon the defendant was not to inflict wanton and willful injury, and this was the highest measure of duty which the plaintiff could exact.”

We do not think, therefore, that because the deceased as a matter of convenience was averse to waiting until the freight train had been moved to enable him to ascend the steps at Seventy-second street, he was justified in making use of the tracks of the company as a pathway to the steps at Sixty-seventh street. To quote from the Lagerman Case (supra), while so using them the only obligation resting upon the defendant was not to inflict wanton and willful injury.”

There being no claim herein that the death of plaintiff's intestate was due to wanton or willful injury, the whole case being predicated upon the failure of the railroad company to observe.that degree of care which it was insisted was by law imposed upon it; and the company, as we have endeavored to point out, not having violated any obligation which it owed to the intestate, it follows that the judgment dismissing the complaint was right and must be affirmed, with costs.

Van Brunt, P. J., Ingraham, McLaughlin and Hatch, JJ., concurred.

Judgment affirmed, with costs.  