De Ryss v. New York Cent. R. Co.

• Court: New York Court of Appeals Court of Appeals
• Writing for the Court: CRANE
• Citation: De Ryss v. New York Cent. R. Co., 275 N.Y. 85, 9 N.E.2d 788 (N.Y. 1937)
• Decision Date: 13 July 1937
• Parties: De Ryss v. New York Cent. R. Co.

275 N.Y. 85

9 N.E.2d 788

DE RYSS

v.NEW YORK CENT. R. CO. et al.

Court of Appeals of New York.

July 13, 1937.

Action by Johanna C. De Ryss, as administratrix of the goods, chattels, and credits of Emil De Ryss, deceased, against the New York Central Railroad Company, Joseph M. Hard, and another. From a judgment of the Appellate Division, Second Department (249 App.Div. 644, 291 N.Y.S. 379), which affirmed in part a judgment of the Trial Term, the named defendants appeal.

Reversed in part and affirmed in part. Appeal from Supreme Court, Appellate Division, Second Department.

Clive C. Handy and Kenneth O. Mott-Smith, both of New York City, for appellants.

Arthur T. Schmidt, of New York City, for respondent.

CRANE, Chief Judge.

On October 18, 1933, the defendant New York Central Railroad Company owned and controlled a certain railroad extending through the village of Ossining, county of Westchester, and state of New York, and owned and controlled the signal towers and signal bridges located thereon. The said railroad runs parallel with the Hudson river at said point in a northerly and southerly direction and to the east of the river. West of the said railroad line operated by the defendant New York Central Railroad Company at the point involved in this action is a sand bar owned by one Patterson, and in no way connected or controlled by the railroad, being abutting property thereto. This sand bar is a flat, smooth bar which at high tide is partially below the water and at low tide is partially exposed and has only a few tufts of grass growing on the same. At a point approximately opposite this sand bar, the defendant New York Central Railroad Company maintained, operated, and controlled a signal bridge, being a structure about 60 feet high and extending over the six tracks of the railroad and having four poles on the top thereof for semaphore signals.

On October 18, 1933, plaintiff's intestate, Emil De Ryss, accompanied by a neighbor and friend, Robert C. Walker, went duck hunting on the same bar above described and built a blind from which to shoot ducks on the Hudson river. This blind was built on private property abutting that owned by the railroad. They placed decoys in the river and sat in the blind waiting for ducks. The blind and approximately 30 inches high, conspicuous in structure, and so constructed that the bodies of the occupants could be seen from their waist up. The blind was somewhere between 600 and 800 feet distant from the signal bridge of the defendant New York Central Railroad Company.

On the signal bridge of the defendant New York Central Railroad Company was working the defendant Joseph M. Hard, an employee of the defendant New York Central Railroad Company. He was a signal maintainer for the said railroad, having charge of or control of approximately eleven bridges in this section. While he was working on the said signal bridge, the defendant Andrew Jerick, who was not an employee of the said railroad, was present on the railroad property at the foot of the signal bridge and had with him a 22 caliber rifle. The defendant Joseph M. Hard, the signal maintainer, called to the defendant Andrew Jerick to the effect that there were some ducks out in the river, whereupon the defendant Andrew Jerick climbed up the ladder to the signal bridge. In attempting to shoot the ducks, the defendant Andrew Jerick fired the rifle from the signal bridge and killed plaintiff's intestate, Emil De Ryss, while he was sitting in the blind constructed by him and Robert C. Walker.

Rules of the railroad include the following: ‘Trespassing on property of the company is prohibited and reasonable means must be used to prevent it.’

There were further rules known as safety rules, which provide as follows:

‘Safety is of the first importance in the discharge of duty.’

‘Employees must refrain from improper practices and should also caution other employees to use care and not deviate from the spirit of these rules, pointing out to them the risk of injury to themselves or others, or damage to property.’

‘The rules contained herein are issued for the purpose of insuring greater personal protection to passengers, employees and the public.

‘The necessity for care must be kept in mind at all times as the rules contained herein may not cover all practices essential to safety.’

A judgment of $59,917.55 has been obtained against the railroad company because a stranger attempted to shoot ducks while standing on its right of way.

The trial judge submitted four questions to the jury which were answered in plaintiff's favor. The judge, however, dismissed the complaint as to the corporate defendant and directed judgment against the employee Joseph M. Hard. On appeal the Appellate Division reversed the trial judge and directed a verdict against the railroad. We must reinstate the finding of the trial court as we can discover no basis for the railroad's liability.

As the owner of its real estate and right of way, the railroad was under no greater duty than any other owners of property, except as to certain obligations imposed by statutes, such as keeping the grass and shrubbery cut, maintaining or protecting crossings and the like, and guarding against the movement of its trains. No greater liability was imposed upon it than upon other owners of real estate for the acts of trespassers causing injury to outsiders not passengers or invitees. Care commensurate with the known danger is the duty of every owner of real property. Thus if the railroad authorities knew that persons were in the habit of shooting guns from its bridges or signal towers, ordinary caution would have required the company to take measures to stop it; such practice continued after knowledge of its existence and an opportunity to end it would make the company liable. This was the case of Fletcher v. Baltimore & Potomac R. Co., 168 U.S. 135, 18 S.Ct. 35, 42 L.Ed. 411, cited on the respondent's brief. The railroad company permitted its men to carry timber on flat cars for their individual use as firewood, and knew that it was the constant habit of the men to throw off these pieces of firewood while the train was in motion at such points on the road as were nearest to their homes. One such piece of...