
    Harry Marra, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.
    Second Department,
    July 29, 1910.
    Railroad—injury to person walking upon tracks — suck trespass criminal — duty of railroad to trespasser — arrest of plaintiff for track walking—facts not justifying recovery for wanton injury.
    As section 53 of the former Railroad Law prohibits persons other than those connected with a railroad from walking upon its tracks, except to effect a crossing at places where tracks are laid across the highway, and such act being a misdemeaner byjrirtue of section 39 of the Penal Law, it is error to allow a plaintiff who, when walking upon the' tracks contrary to the statute and while under an arrest made by a detective- employed by the - railroad, was struck by an engine, to prove that the people of the vicinity were allowed to walk on the tracks without objection by the defendant.
    As by virtue of said statutes walking upon railroad tracks is a crime; a railroad company owes such trespasser no duty of affirmative care, but merely ■ to abstain from unlawfully, wantonly or recklessly injuring him.
    To hold the railroad company liable for an injury so received, it is necessary to show that the detective, within the scope of his employment, arrested the plaintiff, and knowing and realizing that a train was approaching on a certain track recklessly and wantonly held him there.
    Complaint examined, and held, to state a cause of action for negligence if plaintiff should elect to stand upon negligence. 1
    
    Hirschberg, P. J., dissented.
    Appeal by the defendant, The New York Central and Hudson River 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 Dutchess on the 30th day of November, 1909, upon the verdict of a jury for $3,000 and also from an order entered in said, clerk’s office on the 3d day of December, 1909, denying the defendant’s motion for a new trial made upon the minutes.
    
      Robert Wilkinson, for the appellant.
    
      Charles Morschauser, for the respondent.
   Woodward, J.:

The plaintiff, on the evening of August 25, 1908, with his brother, was walking along the tracks of the defendant’s railroad in Poughkeepsie, having entered upon the track at Mill street, with the intention of going to the Church street bridge. They had reached a point in front of the railroad station, when they were accosted by one Dunn, a detective employed by the defendant, and wlio appears to have been a police officer, who is alleged to have placed, the plaintiff under arrest and to have taken him upon the north-bound track of the defendant, where he stopped to question him. While thus engaged a train on the north-bound track, running at a high rate of speed, came along, and Dunn jumped from vthe track, as the plaintiff alleges, without giving him warning, and the engine struck, the plaintiff, bruising and injuring him in a serious manner. The complaint alleges that Dunn, “acting within the scope of his authority and by virtue óf his employment, did place this plaintiff under arrest and arrested him and held him fast, and while so having him under arrest did recklessly, carelessly, improperly and imprudently hold him and place him while acting within the sco,pe of his authority and while this plaintiff was so under arrest upon a track of said defendant in front of a north-bound train and at the said time defendant had a train running north at about eight-thirty f. m. on said day and that said defendant did through its' said detective and officer' recklessly, wantonly, willfully, carelessly and improperly place said plaintiff under arrest and place him upon said track while said train was moving northward rapidly and at a high rate of speed and that by reason thereof said plaintiff was struck,” etc. The gravamen of this action is the alleged wanton recklessness of the police officer in the employ of the defendant in arresting the plaintiff and holding him upon the north-bound track in front of an approaching train, resulting in the injuries complained of, yet upon the trial of the action the learned trial court permitted the plaintiff to introduce evidence, over the objection of the defendant, to an alleged custom of the people of Poughkeepsie to walk along the tracks of the defendant at this point without objection on the part of the defendant.

Section 53 of the Railroad Law (Gen. Laws, chap. 39 [Laws of 1890, chap. 565], as amd. by Laws of 1892, chap. 676) 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.” The Court of Appeals, in construing this provision of the Railroad Law in Keller v. Erie Railroad Co. (183 N. Y. 67, 72), say that an “ act expressly prohibited by the public statute is, in its inception and always must continue to be, unlawful. The defendant’s powers and capacity to act are defined and controlled by statute law and, as a creature of statute, it could, neither expressly, nor passively, con., fer a right which the statute denies. Whoever walks upon, or along, the tracks of á railroad, except when necessary to cross the same upon some street, highway or public place, violates the law and is like a trespasser, and the company’s servants are under no" other obligation than to refrain from willfully, or recklessly, injuring him.” Section 29 of the Penal Law provides, as did section 155 of the old Penal Code, that “ where the performance of any act is prohibited by a statute, and no penalty for the violation of such statute is imposed in any statute,-the doing such act is a misdemeanor.” The plaintiff was, therefore, in exactly the situation which was occupied by the plaintiff in the ease of Magar v. Hammond (183 N. Y. 387, 390), where the court lays down the proposition that the plaintiff, and his companions, having been engaged in the commission of a.crime, the defendants owed them no duty of affirmative care and “ the only obligation resting upon the defend-. ants was to abstain from willfully, wantonly - or recklessly injuring them.” This, being the 'law, it was obviously error-on the part of the learned trial court to permit the plaintiff to put in evidence, over ‘the objections of the defendant, that other persons had been known to traverse the distance between Mill street and the Church street bridge along the tracks, of the defendant, since it served to create in the minds of the jurors the impression .that the plaintiff was rightfully upon the defendant’s premises.

- It is true, of course, that the learned trial court, at-the request of the defendant’s counsel to “ charge, in vie-wmf the admission of counsel for the plaintiff, that the plaintiff was a trespasser at tlie timé he wás hurt, that the. jury are bound to disregard what other persons have been in the habit of doing as to walking along the railroad track,” replied: “ I -think ■ I will say that. The case developed an entirely different theory.” But this did not cure the error in admitting'the testimony, arid a reading of the case shows that the jury could not have had a clear idea of the law of the case; that they did not understand that the defendant could not be held liable unless it was made to appear that the defendant, or its servants, knowing the danger, wantonly exposed the plaintiff. Wanton action is hot mere negligence. By wanton action- is meant action “ ‘recklessly disregardful of right or of consequences.’”' (Polykranas v. Krausz, 73 App. Div. 583, 586, and authorities there cited.) T.o hold the defendant liable, in this case it -should be made to -appear that Dunn, within the scope of. his employment, arrested the plaintiff, and, knowing and realizing that a train was approaching on the north-bound track, recklessly and wantonly held him there. In other words, the evidence should be practically sufficient to hold Dunn for the commission of a crime, and the' evidence does not reach this point. The most that can bfe fairly said of the evidence is that it might justify a finding that Dunn detained tire plaintiff upon the north-bound track at a time when he ought, in the exercise of reasonable care, to have anticipated that there was danger. There does not appear to be any dispute that Dunn stood upon the track with the plaintiff up to the very last moment before the accident; that he saved his own life only by jumping practically simultaneously with the striking of the plaintiff by the engine, and there was nothing in the.conduct of Dunn to show that he had any ill-will toward the plaintiff, or that he was trying to do anything more than his duty as a police detective in finding out what the plaintiff and his brother were trespassing upon the defendant’s tracks for. The only fair and legitimate deduction from the evidence, as we read it, was that the defendant’s servant, Dunn,, in the discharge of his duty, detained the plaintiff upon the north-bound track while lie asked the plaintiff some questions about, his presence upon the defendant’s right .of way ; that Dunn was, in this, negligent, hot only with reference to. the plaintiff, but himself as well, but without the slightest intention of exposing the plaintiff to the danger which subsequently developed. Dunn did not owe the plaintiff any active duty; he simply owed him the duty of refraining from consciously and recklessly exposing the plaintiff to a danger of which he was himself aware, and there is not the slightest evidence ih this case which would justify a finding that Dunn had" any consciousness of the danger which threatened until he jumped from the track in time to save his own life. That he was careless of his. own life and that of the plaintiff ■ is not to be questioned; if the case depended upon negligence, there would be no reasonable doubt, but it falls far short of establishing a wanton disregard of the rights of the plaintiff, and as the theory of negligence permeated the trial, and the defendant was unable to exclude the testimony which tended to create the impression in the minds of the jury that the plaintiff had a right to be where the law says he should not be, we think the judgment and order should- be reversed. .

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

Jenks, Thomas and Care, JJ., concurred, being, however, of the opinion that the complaint states a cause of action for negligence, if tlie plaintiff shall elect to stand on it; Hirschberg, P. J., dissented.

Judgment and order reversed and new trial granted, costs to abide the event, ■ 
      
       On June 14, 1910, this provision became section 83 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481).— [Rep.
     