James Petur, by His Guardian ad Litem, Samuel Petur, Appellant, v. The Erie Railroad Company, Respondent

James Petur, by His Guardian ad Litem, Samuel Petur, Appellant, v. The Erie Railroad Company, Respondent. Second Department, June 21, 1912. Railroad — negligence — injury to trespasser crossing tracks — when railroad hot liable. The fact that the employees of a railroad company crossed its tracks at various times to reach the shops where they were employed does not ' create an invitation or license to the public to cross, where there are no Streets intersecting the tracks, nor any highway between the tracks and the company’s shops, which it maintains on its own land. Hence, there can be no recovery for injuries received by a boy who was run down by a railroad train while attempting to cross the tracks, he being a trespasser, if no wanton or reckless conduct bn the part of the defendant’s employees "be shown. Under the circumstances the defendant cannot be held negligent for a failure to maintain a fence between its tracks and a highway running parallel thereto. Under the conditions the railroad had the superior right of way on its tracks, and its employees in operating trains or switching cars were not required to be actively vigilant in discovering trespassers. Appeal by the plaintiff, James Petur, from a judgment of the Supreme Court in favor of the defendant, entered in the-office of the clerk of the county of Orange on the 18th day of December, 1911, upon the dismissal of the complaint at the close of plaintiff’s case by direction of the court on a trial at the Orange Trial Term, and also, from an order entered in said clerk’s office on the same day dismissing the complaint. Leonard F. Fish [ James G. Graham with him on the brief], for the appellant. Elbert N. Oakes, for the respondent. [MAJORITY — Rich* J.:] Rich* J.: The accident occurred upon defendant’s right of way in the city of Port Jervis, at a point where it has fifteen tracks running substantially parallel, two of which are east and westbound 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 ten 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; he could not see whether there was an engine attached to the cars or not. In endeavoring to get off the track his foot cáught and the cars ran over his leg, inflicting the injuries for which he sought to recover in this action. There was no brakeman in sight on the coal cars and no one knew of plaintiff’s presence on the track, or injury, until after the accident. It is apparent from the testimony that the public were not licensed to cross defendant’s tracks at any point between Thompson and Pike streets. Although it was shown that employees of defendant crossed the tracks at times to and from the defendant’s shops in which they were employed, climbing under, over 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 employees had crossed the tracks opposite Thompson and Brown streets, but no general custom charging the defendant with notice of such use was shown. 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. (Roberton v. Mayor, etc., 7 Misc. Rep. 645; 149 N. Y. 609.) I think the testimony establishes that the plaintiff was a trespasser. Ho wanton or reckless conduct on the part of defendant’s employees was shown. The defendant having the superior right of way and use of its tracks, its employees operating trains or engaged in switching cars were not required to be actively 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). (See, also, Neuberger v. Long Island R. R. Co., 131 App. Div. 885.) The learned trial justice properly dismissed the complaint, and the judgment and order must be affirmed, with costs. Present—Jenks, P. J., Thomas, Carr, Woodward and Rich, JJ. Judgment and order unanimously affirmed, with costs.