Lederman v. New York City Transit Authority

• Decision Date: 25 October 1962
• Citation: 233 N.Y.S.2d 425,36 Misc.2d 571
• Parties: Arthur LEDERMAN, an infant, by Mollye Lederman, his Guardian ad Litem, and Mollye Lederman, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY and the City of New York, Defendants.
• Court: New York Supreme Court

Page 425

233 N.Y.S.2d 425

36 Misc.2d 571

Arthur LEDERMAN, an infant, by Mollye Lederman, his Guardian ad Litem, and Mollye Lederman, Plaintiffs, v. NEW YORK CITY TRANSIT AUTHORITY and the City of New York, Defendants.

Supreme Court, Trial Term, Kings County, Part III.

Oct. 25, 1962.

Rothbard, McAuley & Schulman, Brooklyn, for plaintiffs; Ralph Stout, Louis Rothbard, Brooklyn, of counsel.

Helen R. Cassidy, Brooklyn, for defendant New York City Transit Authority; Louis P. McMurrer, Brooklyn, of counsel.

Leo A. Larkin, Corp. Counsel, New York City, for City of New York; Bernard J. Dillon, Brooklyn, of counsel.

J. IRWIN SHAPIRO, Justice.

After the plaintiffs had rested, the defendants New York City Transit Authority (Transit Authority) and The City of New York (City) moved to dismiss the plaintiffs' complaint. Decision was reserved on their motions. They then rested and renewed their motions. Decision was again reserved.

The jury found a verdict in favor of the infant plaintiff in the sum of $30,000 and in favor of his mother for $12,500 against both defendants. Decision was reserved on their respective motions to set the verdicts aside, to dismiss the complaint and for directed verdicts in their favor.

Since the defendants rested on plaintiffs' case, the only evidence in the record is that adduced on behalf of the plaintiffs. The jury having found for the plaintiffs, I will, in stating the facts set them forth in best possible light for the plaintiffs. (Brockport-Holley Water Co., v. Village of Brockport, 203 N.Y. 399, 403, 96 N.E. 745, 746, 747; Webster v. M . W. Kellogg Co., 168 App.Div. 443, 446, 153 N.Y.S. 800, 803; Stein v. Palisi, 308 N.Y. 293, 294, 125 N.E.2d 575; Sagorsky v. Malyon, 307 N.Y. 584, 586, 123 N.E.2d 79, 80).

The accident happened on September 7, 1958. At that time, and for a long time prior thereto, the defendant Transit Authority operated upon an embankment, as part of the BMT Subway system, an electrically operated railroad, known as the Brighton Line.

As part of the equipment of said railroad the defendant Transit Authority maintained upon its right-of-way, alongside and parallel to the tracks, certain highly charged electric third rails, which were used to supply operating current to the trains running on the tracks.

Along the westerly side of the railroad right-of-way there was a wire mesh fence maintained by the defendant Transit Authority. This fence was about 6 feet high over its entire length except that on one portion thereof, where it was the contention of the plaintiffs that persons had frequently climbed over the fence, it was bent over so that at that point it was only 5 feet from the ground.

Along the westerly side of this railroad right-of-way, there was a pathway approximately 5 feet wide and next to the pathway and alongside of it was a public park and playground owned and operated by the defendant City with a number of softball fields and handball courts thereon.

Along the easterly side of this playground and adjacent to the pathway was a wire fence with an access gate which for a long period of time was out of repair. By reason of its condition the gate could not be closed and therefore necessarily remained open at all times.

At the time of the accident, and for a long time prior thereto, it was the practice, when a ball was hit or thrown over and upon the railroad right-of-way, for a boy--usually the outfielder--in order to retrieve the ball, to leave his playground and enter the adjoining playground through an aperture in the wall between them, then go through the aforementioned open access gate, cross the five foot pathway, and climb up and over the wire fence, at its five foot high point, and then ascend the embankment to wherever the ball was on the railroad right-of-way. ¹

At the time of the accident the infant plaintiff was eleven years and eight months of age. A softball game was in progress and he was one of the outfielders. The ball was hit over the fence and onto the tracks. He was urged by others in the game, including his adult brother, to get the ball. In an attempt to retrieve it, he entered the adjoining playground, walked through the open access gate, crossed the five foot pathway climbed the wire mesh gate at its five foot point, walked up the embankment, and walked on and over some of the tracks. He picked up the ball and as he was attempting to return he heard a train coming, got frightened, started to run, tripped on some stones, and stumbled and landed with his chest on the third rail sustaining injuries, maiming in nature, and the burns from which covered more than 20% of the skin surface of his body.

Upon these facts, the jury had a right to find: (1) that the defendant Transit Authority maintained and operated upon its railroad right-of-way high voltage electric third rails; (2) that in the immediate vicinity of and close to said railroad property, there was a public playground owned and maintained by the defendant City in which the gate leading toward said railroad property was, and had been for many years, broken and so far in a state of disrepair that it had not been and in its then condition could not be closed; (3) that children were invited by the City to and did play the game of softball upon the baseball fields in said playground and in connection with playing the game did bat and throw balls; (4) that batted balls in the course of play would on occasion come over and upon the railroad property and tracks; (5) that a wire mesh fence along the border on the side of the railroad property, at a point approximately opposite to the said broken gate, was, and for many years had been, bent so that while the rest of the wire mesh fence extended six feet above the ground, at the point where it was bent it was only five feet above the ground; (6) that for a long period of time prior to the accident to the infant plaintiff, children climbed over the wire fence, and walked up the embankment and over and across the tracks in order to retrieve batted balls.

The question therefore is whether such findings spell out a cause of action in negligence against either or both defendants.

Concededly the infant plaintiff was both a statutory and common law trespasser upon the railroad right-of-way. The contention of the plaintiffs, however, is that being constructively aware of the proximity of the playground and of what children playing in the playground were doing with reference to batted balls, the defendant Transit Authority in the exercise of reasonable care and prudence was duty bound to take steps to prevent children from climbing over the wire fence and onto and upon the railroad property and tracks and that the defendant City was negligent in having an opening in its playground fence--the gate--which led directly to the five foot path and which path in turn bordered the railroad right-of-way.

The danger inherent to children in permitting such a practice, say the plaintiffs, was readily foreseeable and therefore there is liability for not preventing the continuance of that practice when injury resulted therefrom, as it did in this case.

As I read the cases they do not sustain the plaintiffs' contention. Giving full credence to all of the factual findings necessarily encompassed within the jury's verdict, all that can be said in this case is that the defendant Transit Authority was aware of the fact that from time to time batted balls were hit onto its tracks and that to retrieve them boys who were using the playground climbed over the fence and went onto its right-of-way, and that so far as the defendant City was concerned that it had knowledge of that fact and permitted the infant plaintiff, and others before him, to leave the playground by way of an open gate, to walk across the five foot pathway, and to climb over the wire fence onto the defendant Transit Authority's right-of-way. Such findings in my opinion do not create liability upon either defendant.

Section 83 of the Railroad Law provides in part:

'No person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same.'

Section 1990, Subd. 4 of the Penal Law makes it a misdemeanor for anyone, not connected with or employed on the railroad, to walk upon or along any railroad track or tracks, or right-of-way, except where and when necessary to cross the track or tracks or right-of-way where they shall be laid across or along streets or highways.

Even in a case, where a railroad company erects a fence on one side of its right-of-way, and the fence blocks the street so that a pedestrian after crossing the tracks cannot go anywhere without walking along the tracks, it has been held to be a violation of these sections for any person not connected with the railroad to cross the tracks (Town of Leray v. N. Y. C. R. R. Co., 226 N.Y. 109, 123 N.E. 145).

There is of course no claim here that the infant plaintiff was employed by, or connected with the railroad, or that the tracks were laid across or along streets or highways, or that it was necessary for him to cross the tracks for any lawful purpose.

The Court of Appeals has held that a plaintiff who violates these statutes is a trespasser and that a railroad defendant, under such circumstances, is under no obligation to compensate him for his injuries (Keller v. Erie R. R. Co., 183 N.Y. 67, 75 N.E. 965; Gleason v. Central N. E. Ry. Co., 261 N.Y. 333, 185 N.E. 401).

In Keller, supra, the action was brought to recover damages from the defendant for having negligently caused the death of the plaintiff's intestate. The negligence alleged was that, while the deceased was law fully and rightfully upon the defendant's railroad tracks, one of its trains, through carelessness in operation, came into collision with him. The...