
    Christopher A. Holmes, an Infant, by George H. Holmes, His Guardian ad Litem, Respondent, v. The Delaware and Hudson Company, Appellant.
    Third Department,
    September 17, 1908.
    Railroad— negligence — injury to pedestrian by explosion of torpedo — verdict for plaintiff reversed.
    Action to recover damages for personal injuries received by the explosion of a torpedo found by a person, riot an employee, while walking upon the tracks of the defendant railroad.
    It appeared that the torpedo was fastened to a rail so as to be exploded by the wheels of passing trains for the purpose of signaling other trains. The plaintiff’s brother found the torpedo and detached it from the track and handed it to the plaintiff, sixteen years of age, who attempted to break the torpedo open with a stone in order to discover what was inside, thus causing it to explode. On all the evidence,
    
      Held, that a verdict for the plaintiff should he reversed.
    Appeal by the defendant, the Delaware and Hudson Company, ' from a judgment of the Supreme Court in favor of the plaintiff, entered in the office óf the clerk of the county of Washington on the 15th day of January, 1908, upon the verdict of a jury for $1,000, and also from an'order entered in said clerk’s office on the 7th day of February, 1908, denying the defendant’s motion for a new trial made upon the minutes.
    The action was commenced to recover damages for personal injuries sustained by the explosion of a torpedo found upon the tracks of the defendant’s railroad. The complaint' alleges that for a great many years prior to the accident the defendant’s railroad, between Dunham’s Basin- and Smith’s Basin, had been used as a walk or path with the acquiescence of the defendant; that the defendant had for some time used, for signaling the engineers of trains, torpedoes or dynamite cartridges so made that they could be fastened to the rail and exploded when 'the wheels of an engine passed over them; that the plaintiff found a torpedo as he was walking along the track; that he was curious to know what it was, and in making an examination it exploded and blew out one of his eyes.
    The only negligence alleged against the defendant was that it permitted the. torpedo tó be on its railroad tracks without warning as to its nature, knowing that the tracks weye used by pedestrians.
    The proof showed that on the 16th day of September, 1906, the plaintiff, a boy of sixteen, years of age, and his brother, who was twenty years old, were walking upon the tracks of the defendant’s railroad, about a mile north of' Dunham’s Basin, when the brother saw a torpedo on the inside of the track between the ties. He testified that the plaintiff was a little ahead of him; that “ I picked it up and I fussed with it a little while before I said anything, and tore the two clasps off of it. Then I went over into the middle of the track ivhere he was walking and asked him what it was; if he ever saw one of them before. He said, ‘ No. * * * What’s on the inside of it ? ’ So he got down on the track, or went down into the ditch first for a stone to break it open. Then he took it up on the track again and got down over the track and commenced to pound on the tin. * * * I was about twenty paces ahead of him, walking along, * * * [when] the thing exploded.”
    The plaintiff testified that he did not see his brother pick up the torpedo and saw none until his brother handed it to him; that he tried to open it, threw it down on the ground, “ took it up edgeways and hit it once, but it did not seem to open it, so I laid it down flat and hit it a couple of times and that exploded it.”
    The jury rendered a verdict for the plaintiff and the defendant appealed to this court.
    
      Lewis E. Garr, for the appellant.
    
      Erskine C. Rogers, for the respondent.
   Sewell, J.:

I am of the opinion that the evidence did not show that the defendant was guilty of a violation of duty, and that no question was made for the jury in that respect.

The claim of the plaintiff rests upon the assumption that the defendant invited, enticed or allured him to come upon the railroad tracks. The claim is not tenable. The plaintiff was not invited upon the railroad tracks in any sense further than that the defendant had not taken occasion to prevent the public from using it as a foot path. It had procured the torpedo for its own use upon its own property. It was necessary for properly conducting its own business. It was not improperly or negligently "made. It was fit for the purpose intended, and for all that appears it was necessary to ' have it where it was found. There is nothing in the record which justified the assumption that the defendant enticed, allured or invited the plaintiff to come upon its land; indeed, one of the statutes of the State provided that “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.” (Railroad Law [Laws of 1890, chap. 565], § 53, as amd. by Laws of 1892, chap. 676.)

Under such circumstances, the plaintiff was there by sufferance only and the company did not owe him the duty of active vigilance to see that he was not injured while upon its land for his own convenience. A license creates no legal. right and imposes no duty upon the owner except the general duty which every man owes to another to do him no intentional wrong or in jury. (Nicholson v. Erie Railway Co., 41 N. Y. 525 ; Larmofe v. Crown Point Iron Co., 101 id. 391; Cusick v. Adams, 115 id. 55.)

The same principle was asserted in Walsh v. F. R. R. Co. (145 N. Y. 301), where, as in this case, the negligence, if any, was passive and not active, of omission and not of commission! There a child five years and nine months old went upon a plot of ground on which there was a turntable and in company with other boys was turning it around when his leg was caught and injured. It was held that the defendant owed him a duty not to injure him intentionally but owed him no duty of active vigilance. The court said : “ The table might have been kept so fastened or locked when not in use that people could not turn it without unfastening or unlocking it, and the defendant might even have built a wall around it so high and guarded it so closely as to prevent any access to it by children at any time. But was defendant bound to do so ? Did it owe any such duty to the public or to this plaintiff ? * * * We do not assert that the defendant owed no duty to the plaintiff under the circumstances existing, but we think it did not owe the duty of such active vigilance as would be necessary to exist in order to send the case to the jury and permit it to find the defendant guilty of negligence in this case.”

In considering this branch of the case, it may also be observed that the defendant was not required to employ men to keep travelers off the track, or to warn them of the result of a wrongful destruction of property procured by it for the sole purpose of properly conducting its own business on its own land. If such a doctrine is sustained I can see no limit to what may be required of a railroad company to relieve it from a charge of negligence. Assuming that the defendant was negligent it cannot be said that it caused the injury. The negligence of the plaintiff in striking the torpedo with a stone, and the negligence of his brother in giving it to him, were intervening and responsible ■ causes of the accident. The immediate cause of the plaintiff’s injury was the act of the plaintiff. That was the natural and efficient cause. It also proceeded from the act of the brother, which was also an intervening cause, without "which the accident would not have happened. The mere presence of the torpedo upon the track without the intervention of these independent causes would not have produced the accident. It was harmless on the "track. It was harmless in the hands of the brother, and was harmless in the hands of the plaintiff until he caused the explosion'by deliberate and intentional violence.

In my opinion the negligence of the defendant, if any there was, was a remote cause, and not the natural or proximate cause of the injury.

I am also of- the opinion that the negligence off the plaintiff caused the accident. He not only failed to exercise the least care or precaution in attempting to open the torpedo but he consciously and intentionally resorted to extreme violence for the obvious purpose ' of destroying it. In other words, the explosion was the direct result of a deliberate and wrongful destruction of the defendant’s property by the plaintiff. For this reason it seems quite clear that the plaintiff was not entitled to recover. It necessarily follows that the judgment and order must be reversed and a new trial granted, with costs, to abide the event.

All concurred; Smith, P. J., Kellogg and Cochrane, JJ,, in result.

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