Lamphear v. New York Cent. & H.R.R. Co.

• Decision Date: 26 January 1909
• Citation: 194 N.Y. 172,86 N.E. 1115
• Parties: LAMPHEAR v. NEW YORK CENT. & H. R. R. CO.
• Court: New York Court of Appeals Court of Appeals

194 N.Y. 172

86 N.E. 1115

LAMPHEAR

v.NEW YORK CENT. & H. R. R. CO.

Court of Appeals of New York.

Jan. 26, 1909.

Appeal from Supreme Court, Appellate Division, Fourth Department.

Action by Nellie H. Lamphear, as administratrix, etc., against the New York Central & Hudson River Railroad Company. Judgment for plaintiff, affirmed by the Appellate Division (125 App. Div. 900,109 N. Y. Supp. 1135), and defendant appeals. Affirmed.

L. B. Williams, for appellant.

James E. Newell, for respondent.

GRAY, J.

The deceased was struck by a train and killed, while attempting to cross the defendant's railroad 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 railroad fences. It was sought, upon the trial, to bring the case within the rule laid down in Keller v. Erie R. R. Co., 183 N. Y. 67, 75 N. E. 965, where it was decided that whoever walks upon, or along, the tracks of a railroad, except when necessary to cross the same upon some street, highway, or public place, violates the law and is like a trespasser, and that the company's servants are under no other obligation than to refrain from willfully or recklessly injuring him. In that case, section 53 of the Railroad Law (chapter 676, p. 1394, Laws 1892) was held to be operative and to prohibit the use of a railroad track as a public way. It appeared that the public had been accustomed to make use of one of two intersecting railroad tracks, by walking upon it in order to reach and to cross the other, and in that way to make a short cut between streets. Such a practice, it was held, however long continued, could not create any right of user, by license, or by sufferance.

In the present case, there was evidence of the constant public use of the path for many years, and the defendant's counsel conceded the fact. The record, also, shows that the defendant had, at some time, put up turnstiles. The trial judge instructed the jurors that ‘it seems to be conceded that for a long series of years the public, with the acquiescence and with the permission and consent of the railroad company, had been accustomed to cross the railroad tracks at the point where this accident happened.’ To this no exception was taken, and when the instruction followed that the defendant was bound to use reasonable care to protect the persons from injury, whom it so permitted to cross at that point, the court was within the rule in such cases. Barry v. N. Y. C. & H. R....