
    Mary Englehardt, Respondent, v. Central New England Railway Company, Appellant, Impleaded with Robert B. Kelley and Albert T. Kelley, Defendants.
    Second Department,
    July 29, 1910.
    Railroad — negligence — injury to- pedestrian crossing tracks—obligations Of railroad.v
    Where-one enters the lands of- another without invitation express or implied, but by bare permission, he must use' thei property as he finds it, and the owner is held to no greater degree of' care than to abstain from affirmative negligence. -
    Thus, although a railroad had permitted the general public to pass along tracks in -its yard which was situated -between two public streets, there can .be no recovery toy a pedestrian who, seeking to avoid a crowd which in the night time was passing along the way used by the public, attempted to make a short cut across a switch track and fell into a hole between the rails maintained toy the defendant to discharge coal from its trains into a coal pocket.
    Hirschberg, P. J.; dissented.
    Appeal by the defendant, the Central' New England Railway Company, from, a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Dutchess on the 30th day of November, 1909, upon the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 4th day of December, 1909, denying the said defendant’s motion for a new trial made upon the minutesl
    
      Charles M. Sheafe, Jr., for the appellant.
    
      Morschauser & Hoysradt, for the respondent.
   Carr, J.:

The defendant appeals from a judgment against it for personal injuries suffered by the plaintiff through its alleged negligence. The facts briefly stated are as follows: The place of the accident was in the city of Poughkeepsie. On the evening of July 16,1908, there was a public exhibition of fireworks which the plaintiff and some of- her woman friends attended: On their way home they passed through premises owned and used by the defendant as a railroad yard, and through which various tracks and switches were laid. The premises were situated between two public streets, and the plaintiff’s purpose in going upon them was to -take a short cut to the street nearer her home. Alongside of one of the switch tracks was an open space which appears to have been used frequently by the general public for passage through the defendant’s premises. The plaintiff and her companions passed along this open space until they came to" the point of the accident. The night was dark, and there was somewhat of a crowd going in the same-direction. It was suggested, either by the plaintiff or her companions, to leave this space and take a cut across a switch track of the defendant in order to avoid the crowd. As the plaintiff stepped aside for this purpose she crossed one of the rails of a switch track and fell immediately into a hole on the track and between the rails. This hole had been put there for the purpose of ■ enabling the discharge of coal from the cars of the-defendant into, a coal pocket of an. adjoining coal .yard in private premises.. It was planked around, and its descending . sides were, lined with planks converging in the descent. It had been'located at the .spot in question for more than five years. The plaintiff asserted liability on the part of the defendant on the claim that the defendant by permitting the general public to pass along by the- tracks in its yard was bound by a duty to exercise reasonable care in the. maintenance of its property adjoining the place so used ' for passage., and that in failing either.to cover or to erect a barrier around this coal hole it had failed to discharge that duty.

The respondent cites but two ¡authorities in support- of her contention, viz.: Jewhurst v. City of Syracuse (108 N. Y. 303) and Sweet v. City of Poughkeepsie (97 App. Div. 82). Neither of them is strictly in point. Both of these cases arose where a traveler on a public highway was injured, by the existence of a dangerous obstacle near the line of the-highway with which hé came in contact accidentally without intending to leave the highway, the boundaries of which were not so marked as to be distinguishable. The liability there followed from the plain duty of keeping the ■ highway reasonably safe for' public use. The difference between one using a public highway as a matter of legal right and one using . private property as a matter of license or sufferance is very important. It. may be that the defendant is liable under the rule declared ip Beck v. Carter (68 N. Y. 283), but that requires an examination of wliat was there actually.décided. - In that case the common-law rule was declared'as follows: “The owner of land is not bound by: the common law to. fence his ■ land, or in any way to mark. -■ the boundaries' of his possession. [Oases cited.] He may leave it ■open, and a person entering thereon without permission is a trespasser, and it is no excuse that the entry was made innocently and by mistake, and the rule is the same in respect to a'traveler on the ' highway who, without necessity, goes therefrom onto thé adjoining land. The owner of-land may also make an excavation on his Own premises,, and is not bound to fence it for the protection of pérsons not lawfully ón the land.” (Pp. 289, 290.) This general rule was qualified, as the court declared, by a further rule, as follows : “ When the owner of land expressly, or by implication, invites a person to come ' upon Ms land, he cannot permit anything in the nature of a snare to exist thereon, which results in injury to the person who avails himself of the invitation, and who, at the time, is exercising ordinary care without being answerable for the consequences. If, however, he gives but a bare license or permission to cross his premises, the licensee takes the risk of accidents in using the premises in the condition in which they are.” (P. 292.)

In that case a hotel owner had. dug an excavation on his own property near an alleyway used by the general public, and a passer-by, who stepped aside from the alleyway, fell into the hole, which had been left unguarded. The court was of. opinion that the open space on the defendant’s property, on which the hole was dug, had been left open for tlie use of the general public as an advantage to the owner of the hotel, and treated the case before it as one where a licensee by invitation, express or implied, had been injured. Where there is no invitation, express or implied, and the one who uses the private property does so by bare permission, the well-settled rule is that he must use the property as he.finds it, and the owner is- held to no greater degree of care than to abstain-from affirmative negligence. (Larmore v. Crown Point Iron Co., 101 N. Y. 391; Sflittorf v. State of New York, 108 id. 205 ; Morris v. Brown, 111 id. 318; Bond v. Smith, 113. id. 378; Cusick v. Adams, 115 id. 55 ; Murphy v. City of Brooklyn, 118 id. 575 ; Sterger v. Van Sicklen, 132 id. 499 ; Collins v. Decker, 120 App. Div. 645.) In the case at bar the plaintiff was not passing along a public highway when she stepped aside into the coal hole; she was on private property, on which she had entered for her own purpose. She was not there by any invitation from the owner in connection with its business or the purpose for which the place was maintained. She used the defendant’s property that' night simply because she saw others using it. Her right to be there at all rested upon no better basis than a mere permission. The defendant was guilty of no affirmative act of negligence against her. It had a legal right to have the coal hole where it was. The law cast upon it no duty to anticipate that some one would enter its property on a dark night, for purposes not connected with its use of the property and step into tlie coal hole located between the rails of one of the switch tracks. - I think the question of the defendant’s liability should not have been. submitted to the jury under these circumstances, and I recommend,-therefore, that ■ the judgment, and order be reversed and a new trial granted; costs to abide the event.

- Woodwabd, Thomas and Rich, JJ., concurred; Hibsohbebg, P. J,, dissented. "" .

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