Kiley, J.:
The record in this case discloses that between seven and eight o’clock on the morning of the 24th day of November, 1920,"the defendant was running its train, consisting of an engine and four cars, over its track between the towns of Colonie and Green Island in the county of Albany, N. Y. At the point in question defendant’s track crosses the canal on an iron bridge some feet above the water. Plaintiff’s intestate, a girl of sixteen years, was crossing this bridge going toward Green Island and was struck by the engine of said train; her body dropped through the bridge into the water of the canal, dead. Upon the trial the plaintiff recovered a verdict of $3,500 and costs. This bridge is not a public crossing; its use is solely for carrying the tracks of defendant upon which its trains cross, and it is the owner thereof. The engineer’s attention was called to the fact that this girl was upon the bridge, and he saw her when his engine was about 800 feet west of the entrance to said bridge. He and some other witnesses say he blew the whistle giving the danger signal. The only evidence to the contrary was negative in character, viz., that they did not hear it blow. Plaintiff’s negative evidence, as against the defendant’s positive evidence, did not present a question of fact for the jury. (Matutinovich v. N. Y. Central R. R. Co., 182 App. Div. *249451; Foley v. N. Y. C. & H. R. R. R. Co., 197 N. Y. 430.) The engineer further testified, and no evidence was produced to the contrary, that he, at the same time, advanced his emergency brake to service position, and with the same movement and immediately advanced the brake to the “ hole ” so called and meaning to the utmost position it could be advanced for stopping the train. Defendant’s evidence is to the effect that there had been a light snow or heavy frost that morning which rendered the rails slippery. The train was going thirty-five miles an hour when the girl was first seen upon the track; the train was not stopped and the girl was killed. This is not the ordinary negligence case, where a person is killed upon a crossing kept, maintained or allowable for public use. It is not claimed that plaintiff’s intestate had any right upon this bridge. She was a trespasser, and as to her the defendant owed no duty except not to wantonly or willfully run her down. (Weitzmann v. Barber Asphalt Co., 190 N. Y. 452.) The record shows that there was no reckless disregard of the life or limb of deceased on the part of the defendant’s engineer. She had no right upon the track in question; such use is positively forbidden by statute. (Railroad Law, § 83.) Some evidence was introduced that for a long period of time this railroad right of way had been used by the people in that neighborhood. This did not constitute the plaintiff’s intestate a licensee. The Court of Appeals in Keller v. Erie R. R. Co. (183 N. Y. 67), reversing the judgment of the Appellate Division (98 App. Div. 550), held that no length of acquiescence by the railroad in such use could create a right of user by license or by sufferance. Furthermore the violation of section 83 of the Railroad Law is a misdemeanor. (Penal Law, § 29.)* In view of the provisions of the Railroad Law (§ 83, supra) and the decisions of the courts with reference thereto, no distinction is made between trespassers and bare licensees. (Weitzmann v. Barber Asphalt Co., 190 N. Y. 452; followed and emphasized in St. Cartier v. N. Y., N. H. & H. R. R. Co., 179 App. Div. 117.) It appears from the evidence of the engineer that he used his best effort and judgment in what he did under the circumstances existing at the time and place. These include the fact, undisputed, that the sander did not work; that he had but one brake flange or shoe; that the rails were slippery; and he is upheld by plaintiff’s experts that, under such circumstances, he could do no more. I cannot see where he can be charged with even a faulty judgment. Acting with promptness and in accordance with his best judgment, doing what he could *250to avert the accident, but failing, he should not be chargeable with the death of this girl. (Piehl v. Albany Railway, 19 App. Div. 471; Ogier v. Albany Railway, 88 Hun, 486.) What has been thus far said is suggestive that this judgment should be reversed; but exceptions to the receipt of evidence over defendant’s objection, and exceptions to the refusal to charge as requested by defendant, make the suggestion a certainty. The plaintiff called two engineers from other roads as experts. Hypothetical questions were put to these witnesses based upon conditions and equipment not obtaining on this road at the time and place of the accident; consideration does not seem to have been given to the single brake flange, the slippery condition of the rails or the unworkable condition of the sander; over defendant’s objection they were allowed to answer that the defendant’s engineer ought to have stopped his train several hundred feet short of the place where it did stop. This was error and could not escape influence on the jury. Defendant’s counsel requested to charge as follows: “ I will ask your Honor to charge that if the jury find that immediately upon discovering that this girl was on the track and not likely to get off in time, the engineer did sound his whistle and apply his brakes, he was not guilty of any wanton, or willful, or reckless act.” The court refused to so charge except as he had already charged. No such charge in words or effect appears in the first instance; the refusal was reversible error. Defendant’s counsel made the further request as follows: “ I will ask your Honor to charge that the engineer was not bound to try to stop this train the instant that he saw the deceased upon the bridge, but that he had the right, in broad daylight, if his train was perfectly visible and its approach apparently heard and known, to assume, at least in the first instance, that this girl would get off the track.” The court answered: “ I will leave that as a question of fact for the jury in this particular case.” Under the holding in Chrystal v. Troy & Boston R. R. Co. (105 N. Y. 164) and O’Brien v. Erie R. R. Co. (210 id. 96) the defendant was entitled to have the charge as requested.
The judgment should be reversed and a new trial granted, with costs to abide the event.
All concur; Cochrane, P. J., and Hinman, J., in result in separate memorandum by Hinman, J.
See Penal Law, § 1990, subd. 4, as added by Laws of 1917, chap. 350.—[Rep.