
    Thomas E. Kane, an Infant, by Thomas H. Kane, His Guardian ad Litem, Respondent, v. Erie Railroad Company, Appellant.
    Second Department,
    December 29, 1905.
    Negligence — injury to boy by fall of stones piled on defendant’s land — landowner not liable for injury to trespasser when danger not apparent.
    The plaintiff, a minor, was injured by the fall of a pile of curbstones upon which he was playing. The stones had been unloaded from defendant’s cars, and though belonging to the consignee thereof, were piled partly on defendant’s premises and partly in the highway. The evidence was insufficient to show that the dangerous condition of the stones was apparent.
    
      Held, that when the danger is not apparent, a landowner is not liable for the fall of such stones knocked down by boys at play, who enter the premises without invitation.
    Appeal by the defendant, the Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in ■ the office of the clerk of the county of Rockland on the 15th day of February, 1904, upon the verdict of a jury for $100, and also from an order entered in said clerk’s office on the 1st day of February, 1904, denying the defendants motion for a new trial made ' upon the minutes. ,
    
      Henry Bacon [Joseph Merritt with him on the brief], for the appellant. ' •
    
      A. S. Tompkins, for the respondent.
   Willard Bartlett, J.:

The respondent, a-lad then about seven years of age, was injured in the village of Kyaclt on the 18th day of April, 1903,* by the fall of a portion of a pile of •curbstones upon which he was playing tag with other youthful companions.' The pile of. stones was situated partly upon a highway and partly upon land belonging to the appellant railroad company. The appellant has been held liable for the injuries sustained by the respondent upon the ground that it did not exercise reasonable care and prudence in permitting the pile of stones to.remain upon its land in the condition in which it was at the time of the accident. I am unable to find sufficient evidence in the record to warrant a finding against the railroád company-fin this respect. Under the circumstances 'disclosed by the proof I think the case falls - within the doctrine of Walsh v. Fitchburg R. R. Co. (145 N. Y. 301), and that the appellant is not shown to have neglected any duty which it owed to the plaintiff, who came upon its land without any express or implied invitation so to do..

It appears that the stones were unloaded at Kyack from one of the appellant’s cars under the direction of the consignees, a firm known as Gregory & Sherman, about the 18th day of July, 1902, and subsequently as stones were' sold from the pile they wpre removed from time to time under the supervision of the foreman of the firm. The agent of the railroad company at BTyack was aware that the pile of stones was there, but further than this there is nothing to show that the defendant had any notice that the condition of the pile was such as to be. likely to occasion in jury to any one. Kor indeed is there any proof that, the appearance of the pile ever indicated the likelihood of such an accident as in fact occurred. It is stated in the brief of counsel for the respondent that at least one witness; namely, John J. Phillips, testified that for some days prior to the accident the pile of stones was in a dangerous condition and likely to fall, and that no measures were taken, either by his firm or by the defendant company, to render the same safe. ■ A careful reading of the testimony of this witness, however, as set out in the appeal book, hardly warrants this view of it. Mr. Phillips does say , that he noticed the pile of stones every day before the accident, and that for ‘several days before the accident the pile was not in such a safe condition as when he left it the last timb, the frost having caused the stones to heave a little' toward the south. He adds, however: “ I don’t think the stones would have slid down unless somebody had interfered with them. I did not do anything to change that condition. I didn’t go near them; I didn’t have any occasion to. They moved such a little I thought there was no danger.” Again he says: I think that in the condition they then were, in that safe condition, a little six-year old boy could not alone cause them to fall down. I could not decide whether two six-year old boys could cause them to fall down or move them. * * * I have testified in answer to Mr. Bacon that after I saw that they had shifted by reason of the action of the frost, that I didn’t do afiything because I thought they were still safe.” .

It seems to me that it would be going too far to hold that a landowner is responsible for the consequences of the fall of a pile of stones knocked down by the antics of a number of boys, on private premises which they have entered without invitation, simply because such owner has allowed the pile of stones to remain there without there being anything in its appearance to indicate that it was likely to prove dangerous, even to trespassers. '

It seems to me that we ought to reverse this judgment.

Woodward, Hooker, Rich and Miller, JJ., concurred.

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