Opinion
June 6, 1913.
John F. Brennan, for the appellant.
Thomas J. O'Neill, for the respondent.
On the 27th day of September, 1910, at six-thirty P.M., at Chappaqua in this State, the plaintiff, a lad twelve years of age, was riding his bicycle along the concrete platform of defendant's station, a few feet from a track upon which a train was approaching. The bicycle came in contact with a stone of irregular shape, about six inches long, three inches wide and three inches thick, which had been used by a servant of defendant to check the wheels of a baggage truck, and by defendant's servant permitted to remain on the platform after use. The plaintiff lost his equilibrium and fell from the platform to the track and in front of the train, and received serious injury from contact with the locomotive.
The plaintiff did not say why he was there. He simply said: "I heard Mr. Carr say that he gave me a nickel and told me to get tickets." Mr. Carr testified: "I am the man who gave the boy a nickel to go down this night. I told him to meet William Hooley and get a couple of theatre tickets; he was coming up on the half-past six train, and he went away on his bicycle, as far as I know. That is the last I knew of it, until after I heard that he was hurt. I had arranged with William Hooley to bring the tickets up on that train, and I sent this boy Bullock knowing he was acquainted with Mr. Hooley. And that Mr. Hooley would give the tickets to him." This was the only evidence relative to this branch of the case. If we assume it to be sufficient to establish the plaintiff's motive in being at the place of injury, it is insufficient to establish that he was there on any business connected with the defendant or at the invitation of the defendant. He was there in his own interest and for his own purpose. He can, therefore, be regarded in no relationship to the defendant except that of a mere licensee who took the risk of an accident in using the premises in the condition in which they were.
In Fox v. Warner-Quinlan Asphalt Co. ( 204 N.Y. 240, 245) the court said: "It thus appears that as to mere licensees the extent of the obligation of the owners or occupiers of land not chargeable with affirmative negligence is to refrain from inflicting upon such licensees intentional or wanton injury and from setting dangerous devices thereon such as springguns or like agencies for the purpose of harming trespassers."
We do not understand that any greater measure of duty is imposed upon a railroad company than upon any other owner of lands unless the duty grows out of a contractual relationship with others engaged in business dealings with it, or arises from peculiar circumstances in the conduct of and in connection with its business from which an implied invitation to use its lands can be established. ( Sutton v. N.Y.C. H.R.R.R. Co., 66 N.Y. 243, 247; Larmore v. Crown Point Iron Co., 101 id. 391, 395; Splittorf v. State of New York, 108 id. 205, 214; Morris v. Brown, 111 id. 318, 326; Ayres v. Delaware, L. W.R.R. Co., 158 id. 254, 259; Duhme v. Hamburg-American Packet Co., 184 id. 404, 407; Pitkin v. N.Y.C. H.R.R.R. Co., 94 App. Div. 31, 33.)
It was said by Judge ANDREWS in Larmore v. Crown Point Iron Co. ( supra): "There is no negligence in a legal sense which can give a right of action, unless there is a violation of a legal duty to exercise care. The duty may exist as to some persons, and not as to others, depending upon peculiar relations and circumstances."
The plaintiff failed to establish the negligence of the defendant, and it was error to deny defendant's motion to dismiss plaintiff's complaint. The judgment entered upon the verdict and order denying motion for a new trial must, therefore, be reversed, and judgment directed dismissing plaintiff's complaint, with costs.
JENKS, P.J., and RICH, J., concurred; THOMAS and CARR, JJ., concurred in result.
Judgment and order reversed, and judgment directed dismissing plaintiff's complaint, with costs.