Merriman v. Baker , 348 N.Y.S.2d 622 ( 1973 )

Marsh, J.

(dissenting). Section 83 of the Railroad Law makes it clear that anyone walking upon, or along, the tracks of a railroad, except when necessary to cross the same upon some street, highway or public place, violates the law and is a trespasser and the railroad is under no other obligation than to refrain from wilfully or recklessly injuring him (Gleason v. Central New England Ry. Co., 261 N. Y. 333; Keller v. Erie R. R. Co., 183 N. Y. 67). While the courts have held that a person who crosses the tracks of a railroad at a point where the railroad company has permitted continued, open and notorious use, thereby acquiescing in and consenting to the crossing by the public, is not a trespasser and is entitled to a reasonable degree of care for his protection (Skzypek v. Long Is. R. R. Co., 245 App. Div. 309, 249 App. Div. 629, affd. 275 N. Y. 508; Zambardi v. South Brooklyn Ry. Co., 281 N. Y. 516), they have very significantly distinguished between the obligation owed persons using such crossings of tracks at a public way and those persons walking along the tracks. As pointed out by Judge Lehman in Zambardi v. South Brooklyn Ry. Co. (supra, pp. 522-523): “ The distinction which the court has drawn is this: For the protection of the traveling public, as well as the railroad companies, the State has forbidden persons other than employees of the railroad companies to walk ‘ upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same. ’ (Railroad Law, § 83.) Violation of the statute is made a penal offense (Penal Law, § 1990), and, however frequently repeated or long continued, . cannot create a public way, which the public may lawfully use, along its tracks. Even an invitation by the railroad company to the public to violate the Penal Law cannot make such violation lawful or confer upon the wrongdoer the private rights which, under such invitation, an innocent wayfarer would enjoy. On the other hand, the law, under a reasonable construction, does not prohibit the railroad company from inviting or permitting the public to cross the railroad tracks from side to side at a point which is not in strict sense a public street or highway, but which, through such invitation or permission, becomes a way open to public use, where the railroad is bound to exercise reasonable care to protect the safety of the public.”

The evidence establishes that the concrete platform on which plaintiff was walking, taking a shortcut home along defendants’ tracks and where she fell and was struck by the train had been abandoned for station use by the railroad and had not served that purpose for over 10 years. The language of the statute makes irrelevant whether infant plaintiff was walking along the tracks on a cindered area, wooden planking or a concrete platform. Unfortunate as were the results of the injuries sustained, I feel that we are constrained by the statute and authorities cited to reverse on the law the judgment against the defendants and dismiss the complaint.

Del Vecchio, J. P., and Simons, J., concur with Cardamone, J.; Marsh, J., dissents and votes to reverse the judgment and dismiss the complaint, in an opinion, in which Moule, J., concurs.

Judgment affirmed, with costs to plaintiffs.