Torts · MBE-tested
Rudolph Ziehm, Jr., an Infant, by Rudolph Ziehm, His Guardian ad Litem, Respondent, v. Chesapeake and Ohio Railway Company et al., Appellants; Rudolph Ziehm, Respondent, v. Chesapeake and Ohio Railway Company et al., Appellants
25 A.D.2d 934·New York Supreme Court, Appellate Division·1966·NY
Present — Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.
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Opinion
Fourth Department,
Mat, 1966
(May 12, 1966)
Rudolph Ziehm, Jr., an Infant, by Rudolph Ziehm, His Guardian ad Litem, Respondent, v. Chesapeake and Ohio Railway Company et al., Appellants. Rudolph Ziehm, Respondent, v. Chesapeake and Ohio Railway Company et al., Appellants.
[MAJORITY]
Order unanimously reversed, without costs of these appeals to any party, and complaints dismissed, without costs. Memorandum: There were presented no issues of material fact. The infant plaintiff, while upon the railroad right-of-way and attempting to board the Chesapeake and Ohio train, was a trespasser. There was no duty owed to him by either defendant that was violated. (Lo Casto v. Long Is. R. R. Co., 6 N Y 2d 470; Scholl v. New York Cent. R. R. Co., 3 N Y 2d 989; Van Houten v. New York, N. H. & H. R. R. Co., 286 App. Div. 875, affd. 2 N Y 2d 739; Van Houten v. Long Is. R. R. Co., 279 App. Div. 1099; Ralff v. Long Is. R. R. Co., 266 App. Div. 794, affd. 292 N. Y. 656; Gleason v. Central New England Ry. Co., 261 N. Y. 333; Penal Law, § 1990, subd. 4; Railroad Law, § 83.) (Appeal from order of Erie Special Term denying- defendants’ motions for summary judgment to dismiss complaints.)
Present — Williams, P. J., Bastow, Henry, Del Vecchio and Marsh, JJ.