
    CHRISTOPHER MATZE, Plaintiff, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Defendant.
    
      Railroad Company— Trespasser upon lands of—duty of company toward.
    
    The plaintiff, while crossing defendant’s track, in the evening, at a point where a street was to be, but had not yet been laid out, but where people were in the habit of crossing and recrossing, was struck by one of defendant’s engines and injured. Held, that he was guilty of contributory negligence in going upon defendant’s track, and that he could not recover.
    The court charged that, even if the public had no right to use the land of the defendant, at the place where the plaintiff was injured, yet, if people were in the habit of crossing and recrossing there, that- the company was bound to use care and caution in running at that point. Held, that this was error; that no right could be acquired by the public in such a manner, without evidence of notice to the company and subsequent acquiescence by it.
    Even if there was any evidence from which a license might be inferred, such license created no legal right and imposed no duty upon the defendant, except the general duty, which every man owes to others, to do them no intentional wrong or injury.
    Motion for a new trial on exceptions, ordered to be heard at the General Term in the first instance.
    The action was brought to recover damages for personal injuries sustained by the plaintiffj by reason of the negligence of the defendant. It was tried before one of the justices of this court and a jury, at the Albany Circuit, in June, 1873. The facts are stated in the opinion.
    At the-close of the plaintiff’s testimony, the defendant’s counsel moved for a nonsuit, on the following grounds:
    
      First. No negligence has been shown on part of defendant.
    
      Second. The evidence shows that the plaintiff’s injury was caused, or contributed to, by his own negligence.
    
      
      Third. That the plaintiff was improperly on the track of the defendant; that he was not using it for the purpose of a crossing, hut was using it for his own convenience, and without the consent or permission of defendant, and cannot, therefore, maintain this action.
    At the close of the whole case, the motion for nonsuit was renewed upon the grounds stated before, and upon the further ground that it appeared affirmatively, that, at the time of this accident, the city had done nothing to throw the street open to the public, and had not graded it, and it was not in a condition to be used as a street, and that' the city had not, at that time, become entitled to cross the lands of the defendant. The judge denied the motion, and the defendant’s counsel duly excepted.
    The court, among other things, charged, that “if persons were passing and repassing there, going to Dedrick’s and to the Observatory, and to the Tivoli Hollow, then it is undoubtedly true that the defendant should exercise care, as plaintiff claims; ” to which the defendant excepted.
    The defendant’s counsel asked the court to charge that the place where plaintiff was injured, was not a highway, and the court so charged.
    Defendant’s counsel asked the court to charge that the public had no right to use the land of the defendant, at the place where plaintiff was injured. The court said: As an abstract proposition, you are right; but if they viere in the habit of crossing cmd recross-i/ng upon that tcrach, they were bound to use ca/re cmd caution in running at that point.
    
    Defendant’s counsel excepted to the qualification.
    Defendant’s counsel asked the court to charge that the plaintiff had no .right to be upon defendant’s track, at the place where he was injured. The court said: That is true, with the qualification I have already stated. Defendant’s counsel excepted to the refusal and qualification.
    Defendant’s counsel requested the court to charge, that the defendant owed no duty to plaintiff, except to do him no intentional wrong or injury, under the evidence, and the court so charged.
    The jury found a verdict, in favor of the plaintiff, for $1,000, and the court ordered that the bill of exceptions to be made, be first heard at General Term.
    
      Matthew Hale, for the defendant.
    
      Henry Smith, for the plaintiff.
   Miller, P. J.:

The plaintiff was injured while crossing the track of the defendant’s railroad, within the corporation limits of the city of Albany. The plaintiff was a mechanic, and upon returning home from his work, on the evening of the day upon which the accident occurred, proceeded down some steps to the railroad track of defendant, walked along on the east side of the track, upon a sidewalk, and then, because it was bad, took the middle of the east track, some fifty or sixty feet toward Albany, until he came to a malt-house; then crossed over to the west track, where two tracks came near together, and to about the middle of what was claimed to be a street, where, after looking to see if trains were approaching, he turned to look toward Schenectady, when an engine came along, caught him on the left arm, by the part of the machine at the side, knocked him down across the track, when the wheel ran over his left leg and cut it off. At the place where the plaintiff was injured, proceedings had been taken to lay out a street; awards had been made to the owners of the land, and all but the defendant had been paid. There was proof to show that the alleged street was being graded, and that the teams working on it passed through. It appeared, however, that the city had not done any work in opening or grading the street, or in taking possession of the railroad over which it was located, but there was evidence that people had been in the habit of passing and repassing on foot, to and from the Observatory, and to Tivoli Hollow and Dedrick’s, by a footpath. I think the court erred in refusing the motion for a nonsuit. It is apparent that there was no highway or street laid out where the accident occurred. This was very properly, I think, assumed by the judge in his charge, as the case is entirely destitute of any evidence showing that such was the fact.

The question then arises, whether the use of the defendant’s land, for passing and repassing in the manner stated, was of such a character as to give the plaintiff and other parties, a right which imposed upon the defendant the duty of exercising care and caution towards strangers, who chose to trespass upon defendant’s land? I am not aware of any legal principle, upon which any such right can be upheld. The defendant had an exclusive right to the use of its track at the place where the plaintiff was injured. The plaintiff was there without any authority whatever, and was, therefore, guilty of negligence in being on the track at the time, which negligence contributed to the injury, and should have been a ground for nonsuit.

The fact that other persons were in the practice of passing at the place named, did not, of itself, confer any right upon the plaintiff, or impose any additional duty upon the defendant, and the court was clearly wrong in charging to the contrary, in effect. N o right of the public can be acquired in such a manner; at least, without evidence of notice, and acquiescence afterward. If such a theory could be permitted to prevail, railroad corporations might be subjected to serious liabilities, without their knowledge or consent, by the action of individuals, assuming to establish rights which are entirely unauthorized. I do not understand that they owe any duty, even, to the owner of a private right of way, through which they pass, which calls upon them to exercise care in the running of their trains; much less should it be imposed near a populous city, where trespassers expose themselves to injury without license. They are not bound to look out for those, who, without a particle of right, intrude upon their tracks. Such an act is unlawful and not to be expected, and it matters not whether the population be large or small, the rule of law is unswerving and cannot be changed to meet the exigencies of varying circumstances, which may attend unlawful trespassers upon their property. It is enough, in this case, to defeat plaintiff’s action, that the plaintiff was on defendant’s track without license or permission, and with no proof to show that he was invited, or that any of the defendant’s officers or employes had knowledge that it was appropriated to any such use. The principle stated is fully upheld in Phil. & R. R. R. Co. v. Hummell.

Even if there was any evidence from which a license might be inferred, and the plaintiff was not a trespasser, such license created no legal right and imposed no duty upon the defendant, except the general duty which every man owes to others, to do them no intentional wrong or injury. The com’t charged in accordance with this proposition, which of itself, I think, authorized a nonsuit.

The court was in error, in the refusal to charge the various requests, made by the defendant’s counsel, which it did not charge, and for these ■ errors, as well as the refusal to nonsuit, a new trial must be granted, with costs to abide the event.

Present — Miller, P. J., Bocees and Boardhan, JJ.

Mew trial granted, with costs to abide the event. 
      
       44 Penn., 375-379, 380. See also Bush v. Brainard, 1 Cow., 78.
     
      
       Nicholson v. Erie Railway Co., 41 N. Y., 530.
     