Petur v. Erie Railroad

The accident occurred upon defendant’s right of way in the city of Port Jervis, at a point where it has 15 tracks running substantially parallel, two of which are east and west bound main tracks, and the others freight’ switch, and repair tracks. To the south of all the tracks, and running parallel with them, is Railroad avenue, a public street, with a sidewalk on its south side, farthest from defendant’s roadbed. Pike street crosses the tracks. To the west of Pike street, Brown and Thompson streets intersect Railroad avenue, but do not cross. There are no streets on the northerly side of defendant’s tracks opposite Brown or Thompson streets, and no street adjoining and running parallel with the tracks; the land being owned by the defendant and occupied by its shops. There is no public crossing of the tracks between Thompson and Pike streets, and cars are being constantly switched on the side tracks. The plaintiff, a boy 10 years old at the time of the accident, started from Railroad avenue to cross the tracks diagonally. He had crossed three or four tracks when he saw some coal cars in motion and approaching.

[1] Although it was shown that employés of defendant crossed the tracks at times to and from the defendant’s shops in which they were employed, climbing under, ove-r, and going around, cars standing on the tracks, such user did" not create' an invitation or license to the general public. Proof was given of a few isolated cases where persons other than employés had crossed the tracks opposite Thompson and Brown streets, but no general custom charging the defendant with notice of such use was shown.

[2,3] The’ contention of the appellant that the failure to fence between Railroad avenue and defendant’s tracks constitutes and establishes defendant’s actionable negligence is without merit. Robertson v. Mayor, etc., 7 Misc. Rep. 645 , 28 N. Y. Supp. 13 ; Id., 149 N. Y. 609 , 44 N. E. 1128 . I think the testimony establishes that the plaintiff was a trespasser. No wanton or reckless conduct on the part of defendant’s employés was shown. The defendant having the superior right of way and use of its tracks, its employés operating trains or engaged in switching cars were not required to be áctively vigilant in discovering trespassers upon the tracks. The difference between active and passive negligence, under such conditions and circumstances, is clearly stated in Rosenthal v. N. Y., Susquehanna & Western R. R. Co., 112 App. Div. 431 , 98 N. Y. Supp. 476 . See, also, Neuberger v. Long Island R. R. Co., 131 App. Div. 885 , 116 N. Y. Supp. 311 .

The learned trial justice properly dismissed the complaint, and the judgment and order must be affirmed, with costs. All concur.