
    Charles E. Kent, as Administrator, etc., of Charles V. Kent, Deceased, Appellant, v. The New York, New Haven and Hartford Railroad Company, Respondent.
    
      Negligence — crossing a railroad fenced on both sides — an open gate in one fence is not an invitation to pass over the tracks where the gate in thé other fence is closed.
    
    In an action brought to recover damages resulting from the death of the plaintiff’s intestate, it appeared that the tracks of the defendant’s railroad ran between those of another company at a point where the latter company maintained a station; that the defendant’s tracks were inclosed by picket fences for the purpose of excluding the public and enabling its express trains to pass the station at a high rate of speed; that there was a gate in each of these fences connected by a planked way, not intended for the use of passengers, hut solely to enable the station agent to pass and transport baggage across the defendant’s tracks, and that a bridge was maintained at this point for the purpose of enabling passengers to pass over the defendant’s tracks.
    It further appeared that on the night of the accident the station agent had made use of the planked way several times, and that the last time he did so he closed one of the gates, leaving the other open; that, although tíre closed gate might he seen by any person observing the situation, tlié plaintiff’s intestate, who had been a station agent for five years upon another railroad, passed through the open gate and proceeded to cross the planked way; that upon discovering the near approach of one of the defendant’s express trains, due at that time, and which he could have seen approaching had he looked, he sprang to the closed gate but was unable to get through and was swept under the train.
    
      Held, that the defendant was not guilty of negligence;
    That the presence of the fences was sufficient to charge the plaintiff’s intestate ■ with knowledge of the purpose for which they were intended;
    That the open gate did not constitute an invitation to the plaintiff’s intestate to cross the tracks- over the planked way, as the closed gate -was a sufficient notice that lie could not cross;
    That the defendant, having taken extraordinary precautions to keep all persons off its tracks, was not bound to give any signal of the approach of its train.
    Appeal by the plaintiff, Charles E. Kent, as administrator, etc., of Charles Y. Kent, deceased, from a judgment of the Supreme Court in favor of the defendant, entered in- the office of the clerk of the county of New York on the lltli day of October, 1899, upon the dismissal of the complaint by direction of the court after a trial at the New York Trial Term, and also from an order entered in said clerk’s ■ office on the 13th day of October, 1899, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      
      Thornas P. Wickes, for the appellant.
    
      Henry W. Taft, for the respondent.
   Hatch, J.:

By this action the plaintiff sought to recover, damages of the defendant for claimed negligent acts committed by it in causing the death of his son. Upon all of the questions whereon the rights and liabilities of the parties depend the evidence is without substantial dispute. The accident happened at Bedford Park station, situated upon the Harlem railroad. While, the defendant’s tracks, upon which it operates its trains, run by this station, yet the defendant does not maintain at this point any station. The defendant’s tracks at this point for a considerable distance are inclosed by picket fences erected upon both sides of its tracks • for the purpose of excluding the general public and all persons .and vehicles from passage over them, the object being to create a condition permitting-.the safe operation of express trains running at a high rate of speed. Upon each side of these inclosed tracks are the tracks "of the Harlem railroad, which run by the station and are used for the purpose of local traffic. Upon the westerly side of the tracks is situate, the main station, and upon the easterly side is a platform and a booth for the sale of tickets. At the southerly end of the westerly station was constructed a bridge over all of the tracks for the use of passengers desiring to reach either side of the station. Approach to the bridge upon the westerly side was through the station. In front of the station upon this side was a platform about six feet wide, from which a planked way led over the defendant’s tracks to the easterly side. At the point where the planked walk began was a gate in the fence, and also a- corresponding gate upon the other side in the fence. This planked way was used by the station agent "for the purpose of passage and the transportation of baggage from one side to the other. It was not intended for purposes of use by passengers or the public, although upon occasions old and sick passengers had been taken" across the tracks by that way. The orders of the defendant, however, prohibited its use except by the agent, as above stated. The gates were fastened by a hasp and lock, although they were not always locked. Upon the night of the accident, the station agent had made use of the way several times; the last time he passed from west to east, leaving the westerly gate open, but closing the easterly one. The accident happened about half-past seven o’clock in the evening, and at the time there were several persons upon the easterly side waiting to take a local train to New York. The place was well lighted, the distance between the fences about twenty-foür and a half feet, and the condition of. the gates and planked way was plain to be seen from either side by any person making observation of the condition. At about .this time there was due to pass the station a fast express train over the defendant’s tracks. The deceased was employed as a station agent upon the New York and Northern railroad, and had been so employed for five years. Upon the night in question" he came to the westerly station, passed through the open gate in the, fence, and proceeded to cross the tracks -upon the planked way. The approach of the express train due at that time, running at a very high rate of speed, was visible to the persons standing upon the easterly platform, and was' also visible to the deceased had he looked. Some of the persons called to the deceased to go back, but he did not appear to-hear; at least, he did not heed the warning, but continued on to the second track, when, discovering his peril, he sprang to the fence; .the gate being closed, he could not get- through, and drew his body as close to the fence as he was able. The engine, tender and one or more cars passed him safely; but attached to the rear of the train, or near the rear, was a vestibuled car wider than those which had passed. • This coming in contact with the deceased swept him from the fence and under the train, producing his death. The engineer upon the train did" not see the deceased at any time, nor did any of the other operators of the train know of the accident until report of it was made. The view. of an approaching train from the point where the deceased - came, upon the track was unobstructed for a distance qf 1,900 feet. The headlight of the train was lit, - and both the light and noise of its approach were seen and heard by the persons standing upon the platform, although no bell was rung or whistle blown. Upon these facts the court below determined that the deceased was guilty of contributory negligence, and dismissed the plaintiff’s complaint.

In the view which we take of this case, it is not necessary that we should determine whether the ruling of the trial court upon this question was correct or not. We think the complaint ivas properly dismissed, for the reason that no facts appeared upon which can be predicated the negligence of the defendant. The lattér, by erecting* its fences and inclosing its tracks, had created a condition whereby all- persons, except agents and employees, were excluded from the use of the tracks, or of the right to pass over them, or for any other purpose. The condition was created for the express purpose of enabling' the defendant to operate its trains at a high rate of speed. The existence of the fences was notice to all persons that they were not expected to be or permitted to be upon the tracks. That the object was to keep the tracks clear was obvious to any person who observed the situation.; and of this condition and its purpose all persons having opportunity to observe it are chargeable with notice. (Riester v. N. Y. C. & H. R. R. R. Co., 16 App. Div. 216.) At least the deceased is so chargeable, as he was a practical railroad man and presumably familiar with such structures and the' purpose of their existence.

It is urged that the existence of the open gate constituted an invitation to cross the tracks by this route. If both gates had been open, there might be force in this suggestion. Indeed, if both gates had been open, there would have been no accident. The deceased reached the easterly' gate, but, being closed, it barred his way. The deceased, as we have seen, was bound by the notice which the fences gave. When he saw the open gate, if he sought to make use of it, he was bound.to look for the purpose of seeing to what point the way led, so far as the same was within the range" of his vision. Had he so looked, as the way and opposite fence were visible, he would have seen that the latter presented a barrier to his crossing, and that the open .gate led nowhere except upon the tracks. This condition repelled the idea of there being an invitation to cross at that point, as the entire situation gave notice that he could not cross. By this fact he was bound as well as by any other which the condition presented. No basis exists, therefore, to raise out of the open gate an implied notice- that it furnished a way to cross the tracks or that thereby an implied invitation was extended to make use of the way. . The plaintiff scarcely made claim upon the oral argument that the defendant was guilty of negligence in any other respect than such as could be inferred from the open gate. So fa.r as his brief makes other claim of negligence, in anything which the defendant did or omitted to do, such claim cannot be sustained. The defendant was not bound to give any signal of the approach of the train, as it had no reason to expect that any person would be upon the track. On the contrary, it' had every reason to believe ' that no person would be'there. It was authorized to run its trains at such rate of speed as it chose, as it had taken not only reasonable precautions but extraordinary precautions to insure safety in this regard.

No other questions require consideration. As there was no negligence established upon the part of the defendant, there could be no recovery.

The'judgment should, therefore, be affirmed, with costs.

Van Brunt, P. J., Rumsey, Patterson and Ingraham, JJ., concurred.

Judgment affirmed, with costs.  