Opinion
Argued March 9, 1943
Decided April 15, 1943
Appeal from the Supreme Court, Appellate Division, Second Department, RUBENSTEIN, J.
Ralph E. Hemstreet and Louis J. Carruthers for appellant.
Adolph Feldblum, Samuel J. Sussman and Herman E. Hoberman for respondent.
Judgment affirmed, with costs; no opinion.
Concur: LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, CONWAY and DESMOND, JJ. LEWIS, J., dissents in the following opinion.
The respondent has recovered damages for injuries sustained when he was struck by a train on the appellant's right-of-way at a point of danger removed from any thoroughfare. The record, as I view it, discloses no evidence from which the jury could find that at the time and place of his injuries the respondent was either a licensee or a business invitee of the appellant. On the contrary, the respondent was in a legal sense a stranger to the appellant. Being then and there engaged in his own pursuits, he was a trespasser at common law and by statute (Railroad Law, § 83; Penal Law, § 1990). In those circumstances the appellant owed no duty to the respondent except to refrain from inflicting intentional or wanton injury. ( Keller v. Erie R.R. Co., 183 N.Y. 67, 71, 72; Gleason v. Central New England Ry. Co., 261 N.Y. 333, 335-337.) Accordingly, I dissent.