
    Walter H. Cornell et al., App’lts, v. The Skaneateles Railroad Co., Resp’t.
    
      (Supreme Court, General Term, Fourth Department,
    
    
      Filed July 7, 1891.)
    
    Negligence—Railroads.
    Defendant’s road was built upon a highway. Plaintiff, in order to avoid • an approaching train, endeavored to cross the track by a private crossing, when his horse’s hoof was caught by a projecting spike and a hole in the planking and held until the train struck the horse and broke its leg, in consequence of which it had to be killed. Held, that a verdict in favor of plaintiffs was properly set aside.
    Appeal from order setting aside verdict in favor of plaintiffs and granting a new trial.
    Action for injuries to plaintiffs’ horse, which resulted in his having to be killed. Defendant’s road is built upon a highway, and at the place of the accident there is a private crossing across' the tracks which was built for the accommodation of an adjoining owner, and which led nowhere except into his yard. One of the planks was three inches from the rail and considerably worn, and a railroad spike had become loosened and projected above the surface of the tie. Plaintiffs, in order to avoid an approaching train, endeavored to cross the track, when the horse’s hoof became caught by the spike and plank and held until the train struck and injured him so that he was obliged to be killed.
    
      F. E. Stone and Baldwin & Kennedy, for app’lts; George Barrow, for resp’t.
   Hardin, P. J.

Upon the trial the court charged the jury: “ There can be no charge for negligence supported against a party who is claimed to be culpable, unless that party has violated some duty which he owed the injured party by the careless act complained of. This was not a place for the public to cross that , railroad track. It was not constructed by anybody for the public to cross there. If it was built for any purpose it was for the convenience of MePeak, to get out into his own yard; and a party' who passed over it, not having any business to do with McPeaks or being called there for any legitimate purpose, naturally would do so at his peril; and he would assume all the responsibilities incident to that passage, and resting upon the question of its defective structure. Such is the natural suggestion which arises from that proposition. But I have concluded to leave (it) to you, gentlemen, the question of the defendant’s negligence, and the question whether there was any duty owing by the defendant to the plaintiff in reference to this particular matter, which would charge it with carelessness towards him. There is no evidence that these planks were laid by the defendant, the railroad company. There is no evidence showing who laid them. There is evidence showing that they were laid for the convenience of McPeak to get out and in; and there is evidence to show that people who drove over this narrow space used these planks or this planking to get across upon the western side of the track and into McPeak’s yard in case they were unfortunate in meeting an engine coming down. How, as this was not a place for the public to cross, and as it was not a part and portion of the highway at that point, what obligation rested upon the defendant, which he owed to the plaintiffs, and which it was bound to discharge, which it omitted to do ? Was the defendant guilty of carelessness because the plank was laid three inches from the rail? Was it guilty of negligence because a spike was started upon the rail there, at a point where it did not invite the public to cross, and where they had no right to cross except upon their own responsibility, and at their own hazard ? Was that an act of carelessness on the part of the defendant to do either of these things ? If it was, and if it owed this obligation to the public, not to McPeak, but to the public generally, to see the crossing was well made, securely made, and that extraordinary care was used for the purpose of preventing any possible accident there, then, gentlemen of the jury, you will have arrived at the conclusion that this company, the defendant, was guilty of negligence because it did not put down these planks, or see that they were put down in better shape.” In the course of the opinion delivered by the learned trial judge in granting the motion, he says: “ Upon the evidence I do not think defendant owed plaintiffs any active duty or vigilance. The place where they attempted to cross defendant’s road was not a public highway, but a private entrance from the highway, if a highway existed at that point, as contended by the plaintiffs, into McPeak’s yard for his personal convenience and benefit.” Again, he adds in the opinion, viz.: “ The plaintiffs in attempting to enter his yard were not there on business with him, but appropriated this private crossing for their own convenience, and to avoid an approaching train of defendant’s rightfully passing on the road. They were not there by defendant’s invitation, nor upon its business, but for their own convenience simply.” In Maize v. N.Y. C. R. R. Co., 1 Hun, 420, Miller, P. J., in a case involving the same principle and- question, says: “The fact that 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 defendant. If such a theory could be permitted .to prevail, railroad corporations might be subjected to serious liabilities without their knowledge or consent by the acts 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 way through which they pass, which called upon them to .exercise care i.i running their trains.” Upon the evidence found in the appeal book we think the trial court was not warranted in allowing the jury to guess that it was the defendant’s duty to keep the place where'the accident occurred in a better state of repair. We agree with the learned trial judge in his conclusion that a new trial should be ordered. We therefore sustain his order.

Order affirmed, with costs.

Merwin, J , concurs in the result.

Martin, J.

The special term was of the opinion that if the defendant owed the plaintiffs the duty of maintaining the crossing where the accident occurred in a safe condition for use, the verdict was justified by the evidence, but held that it did not. The learned presiding justice, in his opinion, seems to assume that the only question in the case is whether the defendant owed the plaintiff any such duty, and holds with the special term that no such duty rested with the defendant. In this conclusion I cannot concur.

The defendant’s railroad was laid in a public highway. It is true the railroad company purchased the interest of the plank road company therein. But it was not closed as a highway, but kept open, used by the public and worked as such by the persons living along the same. The plaintiff’s servant and team were, therefore, properly there, and not trespassers in passing over it. But it is said that the injury occurred while the servant and team were crossing the railroad attempting to reach a place of safety while the train should pass, and, hence, they were trespassers. I cannot think so. They were still in the highway, and it seems to me that the danger was such as to fully justify the servant in crossing at this point to escape it, and that he was not a trespasser in doing so.

In Spooner v. D., L. & W. R. R. Co. (115 N. Y., 22 ; 23 N. Y. State Rep., 554), where the plaintiff came to the defendant’s track to see a train pass, found some small children playing about the rails, told them to get off the track, and, they not heeding her, she stepped upon it to make them get out of the way, and her foot was caught between the plank and rail, and she was injured by an approaching train, it was held that she was not a trespasser, and not chargeable with negligence in thus going upon the track. See also Eckert v. L. I. R. R. Co., 43 N. Y., 502.

In Rexter v. Starin (73 N. Y., 602), it was held that it is the duty, as well as the right, of a person whose property is endangered by the negligence of another, to do what he can to save and protect it, and, therefore, if while exercising such care he is injured, the person guilty of negligence is liable.

I think the principle of those cases should be applied here. The defendant had laid its railroad along a public highway, which was kept open, used and worked as such. At the point where the injury occurred it was narrow, with a deep ditch on one side, and the railroad upon the other. It was dangerous to a person driving along it, especially if driving a team that was afraid of the cars. The plaintiff’s team, was afraid of the cars, and his servant sought to reach a place of safety by attempting to cross the track over this crossing on to the premises of an adjoining owner. That under the circumstances it was proper for him to do so, and that in so doing he was properly using the crossing at that point and was not a trespasser, so that the defendant owed him no duty, seems to me quite clear.

If the order in this case can be sustained, I think it must be sustained on the ground that the proof showed conclusively that the cause of the accident was the projection of a spike above the surface of the tie into which it was driven, and that there was no evidence to justify a jury in finding that the defendant had either actual or constructive notice of its projection, and no evidence to justify it in finding that there was any defect in the original construction of the crossing that caused the injury icomplained of.  