Skzypek v. Long Island Railroad

245 A.D. 309, 280 N.Y.S. 422, 1935 N.Y. App. Div. LEXIS 10289

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: June 14, 1935
• Status: Published

Opinions

Lazansky, P. J.

The complaint should not have been dismissed. (Lamphear v. N. Y. C. & H. R. R. R. Co., 194 N. Y. 172, where the facts are practically the same as those here presented.) In that case it appears deceased was struck by a train and killed while attempting to cross defendant’s tracks at a point where there was neither street nor highway, but only a footpath leading from one side to the other through openings in the fences. There was evidence of a constant public use of the path for many years, and defendant’s counsel conceded the fact. It was also shown that defendant had, at some time, put up turnstiles. It was conceded that for a long series of years the public, with the acquiescence, permission and consent of the railroad, had been accustomed to cross the railroad tracks at the point where the accident happened. The trial court instructed the jury that under the circumstances defendant was bound to use reasonable care to protect the persons from injury whom it so permitted to cross at that point. The court say: “ If the nature of this present path as a public passageway had been in dispute, a different question might be presented and the necessity of proper instructions to the jurors would be apparent. * * * Requests, therefore, to charge the jury that the deceased had no license to walk upon the tracks, that he took the risks incident thereto and of the dangers to which he might be exposed and that no other duty rested upon the defendant than not to intentionally, or wantonly, injure him, were properly refused.”

Barry v. N. Y. C. & H. R. R. R. Co. (92 N. Y. 289) and Byrne v. N. Y. C. & H. R. R. R. Co. (104 id. 362) were cited only to indicate the duty of a railroad to licensees on its tracks. The court considered section 53 of the Railroad Law (Laws of 1890, chap. 565, as amd. by Laws of 1892, chap. 676),

* which, with a similar statute, section 1990 of the Penal Law (Laws of 1917, chap. 350), is here involved.

Under the later statutes the prohibition is against walking upon or along railroad tracks, except where the-same shall he laid across or along streets or highways, in which case walking shall not he upon the tracks unless necessary to cross the same.

' The essence of the decision in the Lamphear case is that when a railroad company permits the public over a series of years to cross its railroad tracks from one side to the other at a place where there is not the usual street or highway, the railroad company in effect, as between it and the public, has created a public highway or passageway, and a person who crosses at such a point is within the exception of the statute; therefore, is not a trespasser, and is entitled to receive from the railroad company the exercise of a reasonable degree of care for his protection. (See memorandum by Cullen, Ch. J., in Keller v. Erie Railroad Co., 183 N. Y. 67, at p. 77.)

Giving to plaintiff the most favorable inferences to be drawn from the testimony, it has been proved here that a street ends at either side of defendant’s right of way, which at one time had been inclosed by a wire fence. At these street ends the fences had been broken down ten years before the accident and so remained until that unfortunate incident. During that period, at that point, the public continuously crossed defendant’s tracks to go from one side to the other. A path had been worn where they had crossed. From such open and notorious use it might be inferred by a jury that the defendant had acquiesced in and consented to the crossing by the public. Thus, as between the public and defendant, a public highway or passageway was created, and the act of deceased in crossing was within the exception of the act. Deceased was a licensee, and defendant owed her the duty of giving a reasonable warning that her pathway led across a death-dealing third rail. There was proof that there was an absence of reasonable warning.

Keller v. Erie Railroad Co. (183 N. Y. 67) and Gleason v. Central N. E. R. Co. (261 id. 333) are not to the contrary. In neither case does it appear that with the consent of the railroad company a public way had been created across the right of way from one side of an intersecting street to the other.

The judgment should be reversed on the law and a new trial granted, with costs to appellant to abide the event.

Carswell and Johnston, JJ., concur; Hagarty, J., with whom Tompkins, J., concurs, dissents and writes for affirmance.

Now Railroad Law (Laws of 1910, chap. 481), § 83.— [Rep.