
    William A. Clarke, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    
      Negligence — injury to one crossing railroad tracks — what evidence as, to the exist? ence of an alleged crossing is insufficient to establish a duty on the part of the railroad company to give warning at such point of the approach of its trains.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that the defendant’s railroad is located between Jerome avenue, a public highway in the borough of Manhattan, and.the east bank of the Harlem river, along which river bank are a number of boat houses; ■ that within the limits of Jerome avenue one Booth had erected a signboard bearing the inscription “ This way to the Boat House,” and had also constructed a staircase outside of the defendant’s right of way, leading down to its tracks; that at the point where the stairway was located the fence on the easterly side of the defendant’s right of way showed a gateway which was not, however, provided with any gate; that some undisclosed person had laid a piece of plank four or five feet long from the foot of the stairway to the first rail of the defendant’s track; that aside from such plank, there was nothing upon the defendant’s right of way to indicate any walk or pathway across the tracks; that to the west of the tracks upon the defendant’s right of way was a beaten footpath running parallel with the railroad; that customers of Booth and members of the various boating clubs had at times made use of the stairway and the beaten pathway in going to the boat houses.
    It further appeared that shortly before midnight on the night in question the plaintiff, who desired to go to a boat house located 500 feet distant from the stairway, went down the stairway and upon the defendant’s tracks, where he was struck by a train.
    
      Held, that the defendant was not liable for the injuries sustained by the plaintiff;
    That the situation did not impose upon the defendant an active duty to give the plaintiff warning of the approach of its train to the alleged crossing.
    
      Appeal by the defendant, The New York' Central and Hudson River Railroad Company, from a judgment of thd Supreme' Court in favor of the plaintiff,, entered in the office of the clerk of the county of Westchester ón the 25th day of April,; 1904, upon, the ■verdict of a jury for $10,500, and also from an order entered in said clerk’s office on the. 21st day of April, 1904, denying the defendant’s motion for a new trial made upon the minutes.
    
      John F. Brennan [Charles C. Paulding with him on the brief], for the appellant.
    
      I. Henry Harris [Leon Kronfeld with him on the brief], for the respondent.
   Woodward, J.:

We think this judgment cannot be supported^. The plaintiff’s version of the case, as developed upon the trial, and as it must be ' deemed to have been found by the jury, is that .the plaintiff , was injured seriously while crossing the tracks of the defendant by being hit lr~. . lotive drawing one of the latter’s trains at the rate of fifty Y - hour, under the following circumstances-: The plaintiff was a musician, and had been engaged to play for a dancing party given by the Wyanoke Boat Club at its club house on the,; ■ east bank of the Harlem river. He started, with two companions, to fill this engagement just before midnight of November' 26, 1901. Jerome avenue is a public highway in the borough of Man, hattan, running in a northerly and southerly direction, and parallel with the Harlem river, which flows in a channel some twenty feet below the level of this highway. Along the east bank of the Har- ■ lem are various boat houses, among them the Wyanoke, and between thdse boat houses and Jerome avenue the defendant operates its double-track railroad, the latt.er being sopie fifteen feet below the surface of the highway, down a somewhat abrupt embankment. Within the limits of Jerome avenue one Charles Booth,, a witness, blit not otherwise involved in this action, had erected a signboard bearing the inscription-, This Way'to the Boat House,” and in connection with this sign the same party had constructed ’ a staircase, outsidé' of the defendant’s right of way, down to the- level of the tracks, and somé otie liad placed a short piece of planking from near the foot of this staircase to the first rail on the side nearest to Jerome avenue. It 'does not appear definitely who placed this planking upon the defendant’s premises, but aside from this planking, four or five feet in length upon the defendant’s right of way, there was nothing to indicate any walk or pathway across the tracks; they presented an appearance identical with any other section of rock-ballasted railroad. On the other siete of the tracks from this staircase was a line of wire elevated several inches above the level of the ground, used for operating the signals for the management of trains at this point, and beyond this, to the westward, between the wire and a fence on the west' of the tracks, was a beaten footpath running parallel with the railroad, and it was in evidence that the customers of Charles Booth, who was a boatbuilder, and members of the various boating clubs, had at times made use of this stairway in reaching the defendant’s right of way from Jerome avenue, and had crossed over the tracks, jumped over the signal wires, and had reached Hr. Bpoth’s place, or had passed in one direction or another along this beaten pathway upon the defendant’s right of way in reaching their boat houses. On the west side of the right of way, at least one month before the accident here complained of, the defendant had erected a wire fence between this path and the Wyanoke Boat Club house, and the plaintiff’s theory appears to be that these individual trespasses on the defendant’s right of way, extending over a considerable number of years, in connection with Hr. Booth’s signboard and his stairway, which the defendant does not appear to have had any power to prevent, constituted1 such an invitation to the plantiff to make use of this method of reaching the Wyanoke Boat Club house that the defendant owed him the active duty of giving warning when its trains were approaching this alleged crossing, and that the evidence justified the jury in finding that the defendant had not given a proper warning, although it appears affirmatively that the bell on the engine had been rung for a long distance before and at the time of reaching the point of the accident, due to the engineer’s own sentiments of humanity: It should, perhaps, be mentioned that a fence which was on the easterly side of the defendant’s right of way, at the point where Hr. .Booth’s stairway came down the embankment, shows a gateway, without a gate, and this is strongly urged as an evidence that the railroad company had acquiesced in this alleged crossing, although it is quite as likely that this- opening was- designed for the use of the defendant’s employees in reaching the signal tower and doing other work which might be required, and in any event it could hardly be construed as anything more than a permission to cross over the tracks tp the premises of Mr. Booth, opposite, for it was he who had erected the Sign and had constructed the staircase,,and it was he alone who occupied the premises on the opposite side; the mere' fact that there was an opening in the fence could not be construed into a general invitation to enter upon and pass along the defendant^ right of way in reaching any of the various boat houses which lined the river for a mile or moré, and it is conceded that the Wyanoke Boat Club house was. 500 feet' along such right of way from the point where the, plaintiff came down the stairway, and where- he: was injured by being struck by the locomotive of one of defendant’s trains.

’ While the respondent calls attention to a number of cases decided in courts of undoubted-authority, we fail to find any which support the plaintiff’s' theory; none in which mere individual trespasses . upon the riglit of way -of a railroad, where there was no open and ' visible crossing, used at least in a measure by the public as a highway, has been held sufficient to impose the duty of active care, except in a case where the railroad owed some contractual duty to the person injured. It should be borne in mind, in considering-the opening in the fence, and which is practically the only evidence that the railroad company made any concessions, that the defendant owed the plaintiff or the public no duty to erect any fence at this point; the statutory duty to erect and maintain fences along--its-right of way is designed merely to prevent. horsesj cattle, sheep and hogs from ' straying upon the tracks from adjacent lands, and the Railroad Law specially provides that <( no railroad need be fenced when not _ necessary to prevent horses, cattle, sheep and hogs from going upon its tracks from the adjoining-elands ” (Laws of 1890, chap. 565, § 32, as amd. by Laws of 1891,'‘‘■chap. 367,. and ■ Laws of • 1892, chap. 676),. ■ and there is no evidence and no presumption .that there was any danger of horses,1 cattle, sheep or hogs going upon this right of way in the borough of Manhattan, and even if there was, the opening here under consideration would not give the plaintiff - any rights. Moreover, the

statute provides that “ no person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.” (Railroad Law [Laws of .1890, chap. 565], § 53, as amd. by Laws of 1892, chap. 676.) Here there was no pretense that there was a highway; the plaintiff did not come upon the defendant’s premises for the purpose of going across upon a generally traveled way to the opposite side of the railroad, but for the purpose of trespassing upon the defendant’s right of way for a distance of 500 feet, and he was not, therefore, lawfully upon the defendant’s premises, and the latter owed him no other duty than to refrain from wantonly injuring him. There is nothing to in dicate that the railroad company had anything to do .with the erection, or maintenance of the sign, “This Way to the Boat House;” nothing to indicate that it even knew of such sign, for it was in a public highway and in a position where it owed no duty of having such knowledge, and as for the stairway, it was upon private premises, beyond the control of the defendant, and aside from a hole in the fence which it was not obliged to maintain for the protection of the plaintiff, and the laying of a few planks on one side of the the track — and who laid this planking is not at all certain — there is nothing to suggest any duty on the part of the defendant to this plaintiff, and all that was done is entirely consistent with the theory that they were necessary to the convenience of the defendant’s servants in operating the signal tower and doing other work in connection with the operation and maintenance of the railroad. In any event, the crossing — if by any possibility this could be construed to be a crossing — was one designed as a license to Mr. Booth and his patrons, who would naturally visit his boat-building plant in the day time, and could not be extended to a duty to this plaintiff, who' entered upon the right of way about midnight, and for the avowed purpose of reaching the Wyanoke Boat Club’s house, some 500 feet along the defendant’s tracks. The defendant owed no duty to the Wyanoke Boat Club or its members; it owed no possible obligation to afford a right of way to such premises, and as there was no crossing at this point for the public, no unobstructed crossing for any one, and the only persons who were shown to have used this way were, so far as appears, trespassers, the plaintiff must be deemed to have entered upon the defendant’s premises in violation of law;, and to have done so without the right to expect that the defendant would give any warning of the approach of its trains, especially at the hour "of midnight. This being the case,,it was error on the part of the 1 learned court at Trial Term to refuse to dismiss the plaintiff’s complaint on defendant’s motion, based on the proposition that the plaintiff had failed to show negligence on the part of the defendant.

- The suggestion of the respondent, that the Wyanoke Boat Club had a right of way to its premises by necessity, as against the defend-, ant, is clearly-untenable and need not be discussed. .

The authorities brought forward in support of the main conten-' tion, that the plaintiff had a right to go to the jury on the question of defendant’s negligence at this alleged crossing, do not justify the judgment. McDermott v. N. Y. C. & H. R. R. R. Co. (28 Hun, 325) was a case in which the railroad company rented certain premises along its right of way tb one who boarded the plaintiff. The only means of ingress and egress was by way of the railroad premises ; the defendant had pointed out no particular method of getting out, and the plaintiff in going to town was run down by one of defendant’s engines running backward, displaying no lights and giving no warning. It was held that the defendant owed the plaintiff, under .the circumstances, the duty of reasonable care, and very properly. But no such relation existed- in the present case, and the case cited has no bearing on the facts now before us. - -

In Cordell v. N. Y. C. & H. R. R. R. Co. (70 N. Y. 119) an accident occurred at a place which was “in some respects a public crossing," and the decision rests upon an entirely different question.

In Byrne v. N. Y. C. & H. R. R. R. Co. (104 N. Y. 362) there was a conflict in the evidence as to whether there was a public highway, and the case was submitted to the jury upon the assumption that there was. not. It appeared, however, that an alley intersected the railroad, and-that this alley was commonly used by the public, the question presented being the duty of the defendant tb persons Using such alley. This comes as close, perhaps, as any of the casés relied upon, but here.there- was a clear public use of an alley crossing the railroad, and with full knowledge on the part of the railroad of such public use. /

In Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 289) it was undisputed that the owners of lots abutting on the railroad at the point of the accident had a right of way across the defendant’s tracks, and that for more than thirty years the public were in the habit of crossing these tracks, and it was held that the defendant owed the duty, as it no doubt did, of using reasonable care not to injure the plaintiff.

"In all of these cases, however, there is at the foundation of the’ liability a public right of crossing, as distinguished from the trespasses of individuals, and we.find no authority holding that under -the circumstances of this case a defendant can be held liable for negligence in not giving warning of its approach.

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

Hirsohberg, P. J., Hooker and Miller, JJ., concurred.

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