
    Minnie E. Edwards, as Administratrix, etc., of Lehman Edwards, Deceased, Respondent, v. New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    October 1, 1915.
    Railroads—negligence—death of pedestrian attempting to cross tracks at railroad station—failure to use way maintained by defendant — contributory negligence.
    Action against a railroad company to recover damages for the death of the plaintiff’s intestate who was struck by one of the defendant’s trains while attempting to cross tracks in the vicinity of the railroad station at which he had alighted. It appeared that there was an overhead bridge at the station, crossing the defendant’s tracks, and also a planked crossing at the end of the station guarded by a flagman and equipped with a gong which rang automatically at the approach of a train. There was evidence that this gong was ringing at the time of the accident and that the approaching train had whistled. The decedent, however, instead of using the aforesaid means of crossing, proceeded across the defendant’s tracks intending to pass through or over a fence which was in a more or less dilapidated condition, there being evidence that other persons had crossed the tracks in a similar manner. On all the evidence, held, that the plaintiff is not entitled to recover, in that her intestate had been guilty of contributory negligence..
    The doctrine of a permitted crossing—of a defacto path—rests on actual rights of way, but may sometimes be grounded on an established foot passageway — one not merely tolerated by the railroad, but by implication invited by it to be so used. Mere knowledge and even existence of a worn path as an approach to a railroad station does not, of itself, create a liability to one using such crossing.
    Appeal by the defendant, New York Central and Hudson River Railroad Company, from a judgment of .the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Westchester on the 17th day of December, 1914, upon the verdict of a jury for $21,000, and also from an order entered in said clerk’s office on the 5th day of January, 1915, denying defendant’s motion for a new trial made upon the minutes.
    
      John F. Brennan, for the appellant.
    
      Thomas J. O’Neill [L. F. Fish with him on the brief], for the respondent.
   Per Curiam:

The New York, Susquehanna and Western railroad runs northerly along the east side of the Hackensack river. Parallel with its system lie the West Shore tracks to the east. The nearest tracks are thirty-eight and one-lialf feet between outside rails. The line of the defendant’s property is thirty-one feet from the easternmost rail of the Susquehanna line. The station building at Eidgefield Park, N. J., about nineteen feet wide, is set between these two systems, and is used in common by both railroad companies.

Plaintiff’s intestate came from New York in the smoker of a local Susquehanna train. He got out near the northerly end of the station. After a few steps toward the north he started to cross the defendant’s tracks. It was dark (about five-thirty p. M. of December 29, 1911), and the station was lighted. The train which decedent had left was also starting up, making some noise. As decedent stepped on the first and most westerly West Shore track he was struck and killed by the locomotive of the second section of the fast express, known as the Continental Limited, bound southerly. The defendant maintained a planked crossing at the southerly end of the station. It was planked for a width of sixteen and one-half feet along the tracks. Here vehicles and people passed. At the northeast corner of this crossing was a post and automatic ten-inch gong. At the southeast corner was a flagman’s shanty, where the "flagman gave his warnings.

On the northerly side of the station was an overhead bridge crossing defendant’s tracks, with stairs at either end. The west end began its ascent at about twenty-one feet north of the north end of the station. The bridge was about sixteen feet in height, and the incline of the stairs covered a lateral space of about thirty-five feet. At the time of this casualty some.snow had fallen on this overhead bridge, so that it- was claimed five or six inches was remaining upon it. The testimony was that this bridge was seldom used; one of the plaintiff’s witnesses estimated that in the last thirteen years'he had not seen the bridge used by as many as twenty-five persons.

On the easterly side of the West Shore tracks there was a bar-fence running from the south crossing to the posts sup* porting this overhead bridge. It consisted of wooden posts about ten or twelve feet apart, through which ran iron pipe, making a fence about three or four feet in height. There was some testimony that some of these rails had been broken and had fallen down. The public street was to the eastward. On the Hackensack river side was a private dock, which was reached from the crossing at the south of the station called Merhoff’s dock.”

Passengers arriving by the Susquehanna trains often went right over the tracks of the West Shore line, sometimes climbing over the bar-fence on the east; at others they would cross in a more or less diagonal direction, and get around the north end of the fence, and come out through an opening between the overhead bridge and the buffer of an eastern siding —■ an unfenced space of about ten feet.

Defendant’s tracks run from the north end of the station quite straight northerly along a distance of 1,353 feet. Even with the curve above that point a locomotive could be seen at a distance of about 2,310 feet. When a train came within 4,500 feet of the station, by electric contact, the automatic gong would be set ringing. That the bell on the post was ringing, was testified to by three witnesses who then stood by it. The locomotive whistle was also heard by them, and further it was testified that the flagman and one of the witnesses shouted to the deceased a warning just as he was stepping on the track. The engineer and fireman of the train also confirmed the proof" of the engine’s headlight, and the sounding of her whistle, which started at a point about 1,600 feet away.

The doctrine of a permitted crossing — of a de facto path, rests on actual rights of way, or may sometimes be grounded on an established foot passageway — one not merely tolerated by the railroad, but by implication invited by it to be sq used. In a comparatively rural locality like this, the doctrine of such a crossing cannot be set up to shield impatient' commuters in their habit of spreading out and rushing over barriers, in too great haste'tó wait, and use', a' proper crossing, or .to' walk up and over the bridge.'

But mere knowledge, and even the existence of a worn path as an approach to a railroad track, does not of itself create a liability to one using such a crossing. (Wright v. Boston & Albany R. R. Co., 142 Mass. 296; Sutton v. N. Y. C. & H. R. R. R. Co., 66 N. Y. 243; Corson v. Atlantic City R. R. Co., 83 N. J. Law, 517.)

There must he some conceded right of way (Lamphear v. N. Y. C. & H. R. R. R. Co., 194 N. Y. 172; Clarke v. N. Y. C. & H. R. R. R. Co., 104 App. Div. 167, 173), and mere acquiescence, unless it ripens into a right of passage, is not enough. (Kubinak v. Lehigh Valley R. R. Co., 79 N. J. Law, 438.) Here the fact of a properly planked crossing equipped with a bell and guarded by a flagman indicate the way provided, and negative any license to cross 70 feet or 100 feet further up the track, especially where defendant had erected an overhead bridge. The fact that the path provided is less convenient than the short cut attempted makes no difference in the rule. The railroad company invited passage where it had best guarded against danger, by bell and by flagman; and if from another railroad passengers see fit to venture on defendant’s tracks away from the safe crossings they must be deemed to take the risk of their impatience.

The proofs preponderatingly show the plaintiff’s intestate guilty of negligence, on his own part, in disregarding the defendant’s signals and warnings.

The judgment and order are, therefore, reversed, and a new trial granted, costs to abide the event.

Jenks, P. J., Thomas, Stapleton, Eich and Putnam, JJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  