Antonio v. Long Island Railroad — 290 N.Y. 718

p. 718

Joaquim Antonio, Respondent, v. Long Island Railroad Company, Inc., Appellant.

Argued March 9, 1943;

decided April 15, 1943.

p. 720

Ralph E. Hemstreet and Louis J. Carruthers for appellant.

Adolph Feldblum, Samuel J. Sussman and Herman E. Hoberman for respondent.

Judgment affirmed, with costs; no opinion.

Concur: Lehman, Ch. J., Loughran, Finch, Rippey, Conway and Desmond, JJ. Lewis, J., dissents in the following opimon.

(dissenting). The respondent has recovered damages for injuries sustained when he was struck by a train on the appellant’s right-of-way at a point of danger removed from any thoroughfare. The record, as I view it, discloses no evidence from which the jury cpuld find that at the time and place of his injuries the respondent was either a licensee or a business invitee of the appellant. On the contrary, the respondent was in a legal sense a stranger to the appellant. Being then and there engaged in his own pursuits, he was a trespasser at common law and by statute (Railroad Law, § 83; Penal Law, § 1990). In those circumstances the appellant owed no duty to the respondent except to refrain from inflicting intentional or wanton injury. (Keller v. Erie R. R. Co., 183 N. Y. 67 , 71, 72; Gleason v. Central New England Ry. Co., 261 N. Y. 333 , 335-337.) Accordingly, I dissent.

Cases cited

Keller v. Erie Railroad 183 N. Y. 67 N.Y. 1905-11-21 at 71, 72 p. 720
Gleason v. Central New England Railway Co. 261 N. Y. 333 N.Y. 1933-04-11 at 335-337 p. 720