Jerzewski v. Erie Railroad

Headnote

Negligence — railroads — trespass ■— license • — - action to recover for death of intestate struck hy train while on tracks — complaint properly dismissed.

Jerzewski v. Erie B. B. Co., 215 App. Div. 748 , affirmed.

Appeal from a judgment of the Appellate Division of the Supreme Court in the fourth judicial department, entered November 23, 1925, affirming a judgment in favor of defendant entered upon a dismissal of the complaint by the court at a Trial Term in an action to recover for the death of plaintiff’s intestate alleged to have been occasioned through the negligence of defendant. Intestate, while standing or walking on defendant’s tracks was struck by one of defendant’s trains and killed. Plaintiff

contended that intestate was a licensee upon the tracks of defendant, he being one of many customers at an adjoining coal trestle whose custom it was, to the knowledge of defendant, to go upon its tracks and examine the cars to ascertain the size and character of coal contained therein, and that he was so engaged when struck by some empty cars which had been bumped backward without warning and without a trainman or brakeman on the forward moving end.