Opinion
June 12, 1944.
The infant plaintiff, six years of age, was engaged with other boys in playing with a ball on a lot owned by defendant, adjacent to and south of its right of way, inclusive of tracks on a main line and spurs leading to an engine yard. The boy, in order to retrieve a batted ball, went down an incline and across two or more tracks of defendant to the top of a concrete abutment or wall underneath a bridge carrying a highway over the right of way, and stepped therefrom to the roof of a freight car. In order to balance himself, he grasped a live catenary wire which was two or more feet above the top of the car and seventeen and a half feet above the rails, the height of the wire being governed by the height of the bridge at this point, and was badly burned and injured. Judgment for plaintiff reversed on the law, without costs, and the complaint dismissed on the law, without costs. Appeal from order denying defendant's motion to set aside the verdict and for a new trial dismissed, without costs. In the light of all the circumstances, inclusive of the fact that the boy was a trespasser, the happening of the accident was not within the range of reasonable anticipation on the part of the defendant. ( Walsh v. F.R.R. Co., 145 N.Y. 301; Mendelowitz v. Neisner, 258 N.Y. 181; Tymon v. M.L.S. Construction Co., 262 N.Y. 161; Adams v. Bullock, 227 N.Y. 208; Krowtzoff v. Long Island R.R. Co., 242 App. Div. 834, leave to appeal denied, 266 N.Y. lv; Erie R.R. Co. v. Hilt, 247 U.S. 97; Donnelly v. Long Island R.R. Co., 252 App. Div. 857; Ralff v. Long Island R.R. Co., 266 App. Div. 794, affd. 292 N.Y. 656. ) The findings of fact implicit in the verdict are affirmed. Close, P.J., Hagarty, Johnston, Adel and Lewis, JJ., concur.