
    Philip R. Knoll, Plaintiff, v. New York, Ontario and Western Railroad Company, Defendant.
    (Supreme Court, Sullivan Trial Term,
    June, 1916.)
    Negligence — contributory — evidence — when recovery for personal injuries precluded.
    Plaintiff upon returning on a bitter cold night to his farm buildings located on one side of defendant’s railroad track with his team discovered a freight train blocking the crossing and, to the knowledge of the train crew, climbed over the train to reach his farm buildings. After waiting nearly an hour ho returned for his team, which he had inadequately sheltered, and on approaching the train was unable to discover any one about in charge of it, and while climbing over it, being unable to pass around the end of it, the train was suddenly started without signal or warning and he was injured. Upon a dismissal of the complaint,, held, that if plaintiff was a trespasser on the train the servants of defendant owed him no duty other than not to wantonly or wilfully injure him; if he was not a trespasser they were charged with reasonable and ordinary care in the operation of the train so as not to injure him, and in either event if they in operating the train did not know plaintiff was upon it they were under no obligation to him of giving any signal or warning before starting the train.
    The fact that the train was started without signal in violation of a rule of defendant was immaterial if none of its employees knew of the presence of plaintiff upon the train, the complaint containing no allegation of such knowledge.
    
      Plaintiff had no right to place himself in a situation of danger simply for the protection of his team without being guilty of such negligence as would preclude a recovery for personal injury received in so doing.
    Motion by defendant for judgment on the pleadings.
    Bruce Winner (Elsworth Baker, of counsel), for plaintiff.
    Carpenter & Rosch, for defendant.
   Chester, J.

There is no allegation in this complaint that any of the employees of the defendant knew that the plaintiff was upon the defendant’s train at the time he alleges he was- hurt by being thrown therefrom. The train was blocking the plaintiff’s farm crossing and had been standing there nearly an hour. On the day when the plaintiff was injured he was returning to his farm buildings located upon one side of the defendant’s tracks with his team and as he approached the crossing he discovered a freight train of the defendant completely blocking it. It was on a bitter cold night, his horses and their blankets were wet and the plaintiff was unable to reach his barn and after the train crew had failed to move the train, on the plaintiff’s request, he placed his horses in an old barn for temporary shelter. He then climbed over the train, with the knowledge of the train crew, to reach his farm buildings. After waiting nearly an hour he returned to get his team, which was inadequately sheltered, in order to save it from further exposure and danger from the cold. When the plaintiff approached the train on that occasion he was unable to discover any one about in charge of it. He alleges that he was unable to pass around the end of the train, and was in the act of climbing over the same, when the train was suddenly started without any signal or, warning and he received the injuries of which he complains.

If the plaintiff was a trespasser on the train, the servants of the defendant owned him no duty other than not to injure him wantonly or willfully. If he was not a trespasser the servants of the defendant were charged with reasonable and ordinary care in the operation of the train so as not to injure him. In either event, if the servants of the defendant operating the train did not know that he was upon it, they were under no obligation to him of giving any signal or warning before starting the train. The fact that the train was started' without any signal in violation of a rule of the company is of no consequence if none of the employees knew of the presence of the plaintiff upon it and there is no allegation of such knowledge contained in this complaint. Nor had the plaintiff any right to place himself in a situation of danger simply for the protection of his property, without being guilty of such negligence as will proelude a recovery for a personal injury received in so doing. Morris v. Lake Shore & M. S. R. Co., 148 N. Y. 182.

The complaint should be dismissed with costs.

Complaint dismissed, with costs.  