Opinion
October 22, 1937.
In an action to recover damages for personal injuries sustained by an infant, and for expenses and loss of services by his father, judgment dismissing complaint reversed on the law and a new trial granted, costs to abide the event. We are of opinion that a railroad company may, by acquiescence in the long-continued use of its property to such an extent that a roadway or passageway exists, except as to the use of the length of the tracks themselves, obligate itself to assume the duty of exercising reasonable care to prevent injury by reason of its operation to those who traverse such roadway. ( Byrne v. N.Y.C. H.R.R.R. Co., 104 N.Y. 362; Lamphear v. N.Y.C. H.R.R.R. Co., 194 id. 172; Skzypek v. Long Island Railroad Co., 245 App. Div. 309; 249 id. 629; affd. without opinion, 275 N.Y. 508.) Furthermore, an exception to the general rule as to lack of affirmative duty exists where an owner permits a part of his premises to be used as a public passageway and creates a dangerous condition, in the nature of a snare, in the immediate proximity of such passageway. ( Beck v. Carter, 68 N.Y. 283.) The proximity of the third rail to the passageway in question, together with the other circumstances disclosed, inclusive of the tender age of the infant, presented a question of fact, at least, as to the negligence of the defendant. Hagarty, Carswell, Davis, Adel and Taylor, JJ., concur.