Cornell v. Skaneateles Railroad

Hardin, P. J.

Upon the trial the court charged the jury: “There can be no charge for negligence supported against a party who is claimed to be culpable, unless that party has violated some duty which he owed the injured party, by the careless act complained of. This was not a place for the public to cross that railroad track. It was not constructed by anybody for the public to cross there. If it was built for any purpose it was for the convenience of McPeak, to get out into his own yard; and a party who passed over it, not having any business to do with McPeak, or being called there-for any legitimate purpose, naturally would do so at his peril; and he would assume all the responsibilities incident to that passage, and resting upon the question of its defective structure. Such is the natural suggestion which arises from that-proposition. But I have concluded to leave [it] to you, gentlemen,—the question of the defendant’s negligence, and the question whether there was any duty owing by the defendant to the plaintiff in reference to this particular matter, which would charge it with carelessness towards him. There is-no evidence that these planks were laid by the defendant, the railroad company. There is no evidence showing who laid them. There is evidence showing that they were laid for the convenience of McPeak to get out and in; and there is evidence to show that people who drove over this narrow space used these planks or this planking to get across upon the western side of the track and into McPeak’s yard in case they were unfortunate in meeting an engine coming down. Now, as this was not a place for the public to cross, and as it was not a part and portion of the highway at that point, what obligation rested upon the defendant, which he owed to the plaintiffs, and which it was bound to discharge, which it omitted to do? Was the defendant guilty of carelessness because the plank was laid three inches from the rail? Was it guilty of negligence because a spike was started upon the rail there, at a point where it did not invite the public to cross, and where they had no right to cross except upon their own responsibility, and at their own hazard? Was that an act of carelessness on the part of the defendant to do either of these things? If it was, and if it owed this obligation to the public—not to McPeak, but to the public generally—to see the crossing was well made, securely made, and that extraordinary care was used for the purpose of preventing *583 any possible accident there, then, gentlemen of the jury, you will have arrived at the conclusion that this company, the defendant, was guilty of negligence because it did not put down these planks, or see that they were put down in better shape.” In the course of the opinion delivered by the learned trial judge in granting the motion he says: “Upon the evidence I do not think defendant owed plaintiffs any active duty or vigilance. The place where they attempted to cross defendant’s road was not a public high way, but a private entrance from the highway—if a highway existed at that point, as contended by the plaintiffs—into McFeak’s yard for his personal convenience and benefit.” Again, he adds in the opinion, viz.: “The plaintiffs in attempting to enter his yard were not there on business with him, but appropriated this private cr.ossing for their own convenience, and to avoid an approaching train of defendant’s rightfully passing on the road. 'They were not there by defendant’s invitation, nor upon its business, but for their own convenience simply.” In Matze v. Railroad Co., 1 Hun, 420 , Miller, P. J., in a case involving the same principle and question, says: “The fact that the persons were in the practice of passing at the place named did not of itself confer any right upon the plaintiff, or impose any additional duty upon defendant. If such a theory could be permitted to prevail, railroad corporations might be subjected to serious liabilities without their knowledge or consent by the acts of individuals assuming to establish rights which are entirely unauthorized. I do not understand that they owe any duty, even to the owner of a private way through which they pass, which called upon them to exercise care in running their trains.” Upon the evidence found in the appeal-book we think the trial court was not warranted in allowing the jury to guess that it was the defendant’s duty to keep the place where the accident occurred in a better state of repair. We agree with the learned trial judge in his conclusion that a new trial should be ordered. We therefore sustain his order. Order affirmed, with costs.

Merwin, J., concurs in the result.