
    George Neuberger, an Infant, by Bertha Neuberger, His Guardian ad Litem, Appellant, v. The Long Island Railroad Company, Respondent.
    Second Department,
    April 23, 1909.
    Railroad — negligence — duty to passenger on tracks — when person crossing railroad becomes trespasser — facts justifying recovery — trial — z’ecovery for wanton negligence under complaint alleging negligence only — waivez-.
    Although one enters upon the right of way of a railroad at an established crossing, he becomes a trespasser if he walks 100 feet up the tracks before attempting to complete his crossing.
    When such pedestrian is a trespasser the only obligation of the railroad is not to injure him intentionally, wantonly or recklessly.
    Where it appears that a boy eight years of age, while trespassing upon railroad tracks, had his foot caught in the rails and he and his companion signaled an approaching train, but the engineer being able to see the plaintiff for 600 or 700 feet and able to stop his train within 400 feet, continued, nevertheless at full speed without using any precautions and ran over the plaintiff’s foot, the question of defendant’s negligence was for the jury.
    Although the complaint was drawn upon the theory that the plaintiff was a licensee and the negligence alleged was not stated to be wanton or wilful, it is not fatal to a recovery. In any event the error, if any, is not available on appeal, where at trial there was no specific objection that the case was tried outside the pleadings.
    Appeal by the plaintiff, George Reuberger, an infant, etc., from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Queens on the 7th day of November, 1908, upon the dismissal of the complaint by direction of the court after a trial at the Queens County Trial Term.
    
      George F. Hickey [M. P. O' Connor with him on the brief], for the appellant.
    
      William C. Beecher [Joseph F. Keany with him on the brief], for the respondent.
   Jenks, J.:

At the close of her case the plaintiff was dismissed in her action to recover damages for injuries to her infant son Neuberger, aged 8 years, who was run over by the steam railroad train of the defendant. The scene of the accident was in the vicinity of Win-field station. Neuberger lived in the neighborhood and is revealed as a bright boy who could read. The rails of the defendant'were of two sets of tracks — the main line and the North Shoreline. They were laid practically at right angles across Madison avenue, a street to the east of the station, and Fisk avenue, a street to the west of the station. Both wore open streets with crossings and gates. On a clear November morning Neuberger and his companion were in pursuit of some fantastics, who crossed the tracks at a point known as Columbia avenue. An exhibit shows that the territory in that neighborhood on one side of the tracks is sparsely settled, and the evidence is that the land on the other side is rough and grown up with weeds and grass. Columbia avenue is a projected, not a physical, street, next to Fisk avenue. There were footpaths in this rough land of which one ran up to the tracks, but there was no crossing there, not even a continuance of the path by planks. Wires which have been strung on posts beside its roadway by the defendant had been broken down by people some time before, so that there was an open space at this path. There is testimony, not however undisputed, that the defendant had set up signs at this point with the legend “ Danger. No Trespassing.” There is testimony that Neuberger knew of these signs and that he fully understood the danger in crossing the tracks. He had never before crossed at this place; but there is evidence that people, including children, were accustomed to pass over. When Neuberger and his young companion Pechette, who were on the rough land, came close to the tracks, they began to run at the height of their speed to catch up with the fantastics. Pechette crossed over, but Neuberger in attempting to cross caught his foot between one of the rails of the main line and a curved switch rail. He, and then he and Pechette, tugged to extricate the foot in vain. After Neuberger was in this position for about a minute or a minute and a half, they saw the oncoming express train of the defendant. Neuberger stood up until the train had come within 30 feet of him, when he laid down outside of the rails and suffered the train to pass over his leg, severing his foot from it.'

I think that the motion for dismissal which was made on the grounds that the plaintiff had failed to show negligence, that Neuberger was a trespasser and that the plaintiff had failed to show absence of contributory negligence should not have been granted. Neuberger must be regarded as a trespasser. Any question as to his status as a licensee is eliminated by the fact that although he entered the right of way of the defendant at Columbia avenue, he did not cross over at that point either within the lines of Columbia avenue as extended or with but a slight deviation therefrom. For his own testimony is that he ran slantingly up towards the North Shore tracks, a little west and then up slantingly over the main tracks a little west, about 100 feet from where he first came to the tracks before his foot was caught. Aside from this testimony there is no question that his foot was caught at a point at some considerable distance from Columbia avenue, so that even if he were a licensee when he entered at Columbia avenue he was not a licensee when he chose to travel along the rails for 100 feet or something less before he sought to complete his crossing. The obligation of the defendant was not to injure him intentionally, wantonly or recklessly. (Rosenthal v. N. Y., Susquehanna & W. R. R. Co., No. 1, 112 App. Div. 431, and cases cited; Kenyon v. N. Y. C. & II. R. R. R. Co., 5 Hun, 479; affd., 76 N. Y. 607.) This obligation of the defendant is admirably expressed by McLaughlin, J., writing for the court in Rosenthal’s Case [supra): “ The respondent’s attorney challenges the correctness of the rule as to the necessity of proof of reckless, wanton and intentional acts as against a trespasser and insists that the rule is that when one sees another in a place of danger, although a trespasser, he should use reasonable care to avoid injuring him. But there is no conflict between the two rules. The difficulty arises in failing to distinguish between passive and active negligence. One having a superior right of way upon a railroad track, for example, need not be actively vigilant in discovering a trespasser, but when he has discovered him, then he must be active in not injuring him. Lack of activity, under such circumstances, becomes' reckless conduct. This rule is well illustrated and the distinction is pointed out in the case of Weiler v. Manhattan R. Co. (53 Hun, 373; affd., 127 N. Y. 669).” I think that the plaintiff made out a case which justified the submission to the jury of the question whether the defendant’s engineer was reckless under the circumstances. The plaintiff called the engineer, who testified that his engine was in proper condition; that he was bound west running at the rate of 40 miles an hour on the main line; that he could see ahead of him along the straight track for some distance and could see both rails of the track; that he saw the two boys ” when he was at the Fisk avenue crossing; that he noticed that one of them ran north and that the other did not move off the tracks. There is evidence that the engineer had whistled at the Madison avenue crossing, at the station and at Fisk avenue, as was usual at these points, and as he was about over Fisk avenue. But there is no evidence that when he then saw the lads or before he ran down Reuberger he took any precautions whatever. There is no evidence that he even looked again to see whether Reuberger had left the track. For aught then that appears the engineer continued on his way with unabated speed, exactly as if the tracks were clear. This case does not present the simple feature of young lads as trespassers upon the track, for the evidence is that when Peehette saw the train he ran up the track waving his hands, and that Reuberger stood immovable upon the track waving his hands until the train was within 30 feet of him. The engineer testifies that when at Fisk avenue he saw the lads he could not see whether Reuberger was in difficulties. Conceding that the engineer might assume ordinarily that such lads would leave the track (Chrystal v. Troy & Boston R. R. Co., 105 N. Y. 164), yet the question remains whether under the surrounding circumstances his lack of any activity after he thus saw the lads was reckless conduct. As I read the record, Fisk avenue was about 600 or 100 feet distant from the place where the lad was caught in these rails, and there is evidence that under the conditions the defendant could have stopped his train within the space of 400 feet. The case does not present the question of an error of judgment discussed in Chrystal's Case (supra), for the reason that the engineer did not pretend to have taken any precautions whatever after he saw Reuberger. Yet he saw that Reuberger was a “boy,” not an adult “ toward whom more watchful care was due ” (Spooner v. D., L. & W. R. R. Co., 115 N. Y. 33), and the question was whether his position, his continuance thereon immovable in contrast to that of Pecliette, and his conduct and that of his companion as to signals should have been seen and heeded. (Id.)

The learned counsel for the respondent contends that the complaint for negligence cannot sustain the case which must, under the circumstances, rest upon “wanton and willful injury.” The complaint was drawn evidently upon the theory that Reuberger was caught at a crossing where he was a licensee at least. But the obligation was not to injure the boy by reckless conduct, as well as by willful or by wanton conduct. I think that reckless conduct may well fall under the category of negligence in that such conduct implies an omission of the care which is due to the person injured. For such conduct is heedless, careless, rash, indifferent to the consequences, and hence negligent. But in any event I think that the point is not fatal to our consideration of the merits upon this appeal, because there was no specific objection at the trial that the case was tried outside of the pleadings. (Farmers’ Loan & Trust Co. v. Housatonic R. R. Co., 152 N. Y. 251.)

The judgment should be reversed and a new trial granted, costs to abide the event.

Hirschberg, P. J., Woodward, Rich and Miller, JJ., concurred.

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

CASES REPORTED WITH BRIEF SYLLABI AND DECISIONS HANDED DOWN WITHOUT OPINION.  