Hopkins v. Long Island Rail Road

Appellate Division of the Supreme Court of New York

Hopkins v. Long Island Rail Road

21 A.D.2d 814, 251 N.Y.S.2d 590, 1964 N.Y. App. Div. LEXIS 3500

CourtAppellate Division of the Supreme Court of the State of New York

DecidedJune 17, 1964

StatusPublished

Cited by3 cases

This text of 21 A.D.2d 814 (Hopkins v. Long Island Rail Road) is published on Counsel Stack Legal Research, covering Appellate Division of the Supreme Court of the State of New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Hopkins v. Long Island Rail Road, 21 A.D.2d 814, 251 N.Y.S.2d 590, 1964 N.Y. App. Div. LEXIS 3500 (N.Y. Ct. App. 1964).

Pincite

Opinion

In an action to recover damages for personal injury the defendant appeals, as limited by its brief, from a judgment of the Supreme Court, Nassau County, entered February 11, 1964 after trial, upon a jury’s verdict in favor of the plaintiff. Judgment reversed on the law, without costs, and complaint dismissed, without costs. Findings of fact implicit in the jury’s verdict are affirmed. Plaintiff was an employee, not of this [815]*815defendant, but of the Pennsylvania Railroad. He was riding upon defendant’s railroad on a free pass issued to him, not as part of his contract of employment, but merely as a gratuity. The reverse side of the pass contained the following condition: “ The person accepting and using [the pass] thereby assumes all risk of accident to person or property”. Plaintiff admitted knowledge of such condition. Plaintiff was injured as a result of the ordinary negligence of defendant. In our opinion, the pass by its expressly stated condition barred plaintiff’s recovery based on the defendant’s ordinary negligence, despite the fact that the stated condition did not contain a clause specifically exculpating defendant from liability “ by reason of negligence” (Kansas City. So. Ry. v. Van Zant, 260 U. S. 459; Quimby v. Boston & Maine R. R. Co., 150 Mass. 365; Rogers v. Kennebec Steamboat Co., 86 Me. 261). We are also of the opinion that, even in the absence of the said stipulation or condition in the pass that plaintiff “assumes all risk of accident,” there would be no liability in any event on the part of defendant here. When plaintiff used the pass given to him as a gratuity, plaintiff was not a “passenger” on defendant’s railroad, but a mere licensee; and hence, as to the plaintiff, the defendant was not a common carrier (Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, 453; Bergerson v. Great Northern Ry. Co., 158 Minn. 20). To a licensee the defendant owed the duty only of abstaining from affirmative acts of negligence or of not injuring him intentionally (Mayer v. Temple Props., 307 N. Y. 559). No breach of such duty is claimed here. Beldock, P. J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.

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In an action to recover damages for personal injury the defendant appeals, as limited by its brief, from a judgment of the Supreme Court, Nassau County, entered February 11, 1964 after trial, upon a jury’s verdict in favor of the plaintiff. Judgment reversed on the law, without costs, and complaint dismissed, without costs. Findings of fact implicit in the jury’s verdict are affirmed. Plaintiff was an employee, not of this [815]*815defendant, but of the Pennsylvania Railroad. He was riding upon defendant’s railroad on a free pass issued to him, not as part of his contract of employment, but merely as a gratuity. The reverse side of the pass contained the following condition: “ The person accepting and using [the pass] thereby assumes all risk of accident to person or property”. Plaintiff admitted knowledge of such condition. Plaintiff was injured as a result of the ordinary negligence of defendant. In our opinion, the pass by its expressly stated condition barred plaintiff’s recovery based on the defendant’s ordinary negligence, despite the fact that the stated condition did not contain a clause specifically exculpating defendant from liability “ by reason of negligence” (Kansas City. So. Ry. v. Van Zant, 260 U. S. 459; Quimby v. Boston & Maine R. R. Co., 150 Mass. 365; Rogers v. Kennebec Steamboat Co., 86 Me. 261). We are also of the opinion that, even in the absence of the said stipulation or condition in the pass that plaintiff “assumes all risk of accident,” there would be no liability in any event on the part of defendant here. When plaintiff used the pass given to him as a gratuity, plaintiff was not a “passenger” on defendant’s railroad, but a mere licensee; and hence, as to the plaintiff, the defendant was not a common carrier (Northern Pacific Ry. Co. v. Adams, 192 U. S. 440, 453; Bergerson v. Great Northern Ry. Co., 158 Minn. 20). To a licensee the defendant owed the duty only of abstaining from affirmative acts of negligence or of not injuring him intentionally (Mayer v. Temple Props., 307 N. Y. 559). No breach of such duty is claimed here. Beldock, P. J., Ughetta, Christ, Rabin and Hopkins, JJ., concur.

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Bluebook (online)

21 A.D.2d 814, 251 N.Y.S.2d 590, 1964 N.Y. App. Div. LEXIS 3500, Counsel Stack Legal Research, https://law.counselstack.com/opinion/hopkins-v-long-island-rail-road-nyappdiv-1964.

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