
    Thomas F. Tuohy, Respondent, v. The Long Island Railroad Company, Appellant.
    
      Negligence — the lowering by a stranger of a gate, at a rail/road crossing, by which a wagon is injured — the railroad company is not liable to the owner.
    
    Evidence that a servant of a railroad company in charge of a gate at a, crossing, at a time when no train was due to pass over the crossing for a period of twenty minutes, raised the gate and fastened it with a clutch or clamp and then left it to go to a water closet, and that, during his absence, a stranger, not in the employ of the railroad company, removed the clutch and lowered the gate so that it fell upon and injured a wagon which was passing over the crossing, does not render the railroad company liable to the owner of the wagon for the damages thus inflicted, where it does not appear that any similar interference with the gate had ever taken place prior to the accident.
    Appeal by the defendant, The Long Island Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Queens, in favor of the plaintiff, entered on the 17th day of September, 1903, upon the decision of the court.
    
      Louis Hess, for the appellant.
    
      Edward S. Malone, for the respondent.
   Willard Bartlett, J.:

The defendant corporation maintained a gate at a crossing over its railroad in the village of Flushing. A wagon belonging to the plaintiff was injured by the lowering of this gate upon it as it was being drawn over the crossing, and on account of the injury thus sustained the plaintiff has recovered a judgment for eighty-five dollars damages, from which judgment the present appeal is taken.

The gate in question was in charge of a gateman employed by the defendant. Just before the accident the gateman raised the gate and left it to go to the water closet. When he went away no train was due to pass over the crossing for a period of twenty minutes. He fastened the gate up with a clutch or clamp which rendered it immovable unless somebody took the clutch or clamp off. During the gateman’s absence a stranger named Walsh, not in the employ of the defendant, removed the clutch and lowered the gate so that it fell upon the plaintiff’s wagon and inflicted the damage which was the basis of the recovery.

I do not see how the defendant can be held liable for this injury. The accident was wholly due to the unwarrantable interference of an outsider with the railroad company’s property. If it appeared that any similar interference had ever before taken place, or that the experience of the defendant in the management of its road indicated the probability of such an occurrence, it might be held that it was negligence not to guard against it in some manner, but there is no evidence in the record to indicate that such an accident could reasonably have been apprehended ; and under these circumstances it is clear that the defendant corporation was not responsible for the consequences of a trespass by a stranger. (Bennett v. Long Island R. R. Co., 163 N. Y. 1.)

I think the judgment should be reversed. ■

Hirschberg, Jenks and Hooker, JJ., concurred.

Judgment of the Municipal Court reversed and new trial ordered, costs to abide the event.  