#### George Smetanka, as Administrator, etc., of Michael Cihy, Deceased, Respondent, v. The New York Central and Hudson River Railroad Company, Appellant.

First Department,

January 10, 1908.

Negligence—pedestrian killed, on railroad tracks — when license to cross does not create public thoroughfare — contributory negligence —■ smoke interfering with view.

The fact that the members of ten families living on a cliff on one side of railroad tracks customarily crossed the tracks to the opposite highway for their own convenience at a point midway between established highway crossings about 600 feet apart at which defendant maintained flagmen, does not make the place a *324public thoroughfare,- although for five pr six years the company has permitted openings to remain in its fence. At most, there is merely an implied license to cross, and a railroad is not, under the circumstances, bound to give warning of approaching trains. . ■

Hence, there can be no recovery for the death of a pedestrian who was struck by a train at such crossing, when there is no evidence of wanton negligence, or that the train was moving at a feckless rate of speed.

In any event, as the deceased attempted to cross the tracks while his view was ohstructed-by smoke and steam from a preceding train, a finding that he was free from contributory negligence is against .the weight of evidence, as he should have waited until the smoke had cleared away. The deceased was none the less negligent, although but sixteen years of age and unfamiliar with the operation of railroads, for he had crossed the tracks at that place for two weeks and it was shown that he looked both ways on reaching the fence.

Appeal by the defendant, The New York Central and Hudson Elver Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 13th day of May, 1907, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 15th day of May, 1907, denying the defendant’s motion for a new trial made upon the minutes.-

*Robert A. Kutschbock,*for the appellant.

*Ira B.*Wheeler, for the respondent.

Houghton, *J.:*

Plaintiff’s intestate was killed by a train while he was attempting to cross the defendant’s track on foot.

The accident' did not occur at a highway crossing, but midway between two highway crossings, about 600 feet apart, at each of which defendant maintained a flagman. The defendant’s two-track railroad runs northerly and southerly at this point, and on the easterly side between .these highways is a high cliff, scattered on the face of. which are ten houses, the inhabitants of which, instead of going to either highway, have been in the habit of climbing down the cliff and crossing the tracks at.places between the streets. On the west of the tracks there is a highway, and between them and the highway defendant has maintained a fence. Some five or six years- ago, the fence being dilapidated, was rebuilt, and an opening between posts in three places was left, through which foot *325passengers might pass by stepping over the lower board. The record does.not disclose whether these openings were left by defendant’s carpenters when the fence was built, or made shortly thereafter, but they have existed since the new fence was erected. Plaintiff lived on the cliff, and the deceased boarded with him, and both worked in a foundry, which was west of defendant’s railroad tracks, and up the parallel highway.

The accident happened about five o’clock in the afternoon on the twenty-ninth of March, and hence in daylight. Plaintiff and the deceased were coming from work at the foundry, and passed the first highway and came to the middle opening in the fence, and plaintiff testifies that the deceased, who was just ahead of him, looked both ways before stepping through the opening, and waited for a train to pass on the near track, and then crossed that track, and was hit by one coming from an opposite direction and killed.

The train which first passed left steam and smoke which enveloped the deceased, and this is given as an excuse why he did not observe the train which hit him, and which, except for the smoke, could have been seen as it approached from 400 to 600 feet.

The theory of the plaintiff upon the trial which resulted in a verdict in his favor was, that the defendant had permitted pedestrians to cross the tracks at this place for so long a time, that it amounted to a license and permission so to do, and hence, that a duty was imposed upon defendant in respect to such persons to exercise care in the movement of its trains at that point, and that the deceased was shown to have used due care because he looked and listened and waited for one train to pass before attempting to cross.

The plaintiff predicates defendant’s negligence upon proof that no whistle was sounded or bell rung.

We are of the opinion that the crossing was not such a one as made it the duty of the defendant to give any warning of the approach of trains. The crossing place was used only by those persons who dwelt upon the cliff, which was difficult of ascent and necessarily could not be used as a general route of travel. It was not, therefore, a public thoroughfare for a considerable number of people, but only a way used for convenience by the comparatively few persons living upon the cliff. There was a street on each side of them and no house was more than 300 feet from one or the other *326of the streets, and access could be had in going around at a proper crossing, by walking a slightly greater distance and taking a few moments more of time. The case is not governed by the decisions of *Barry*v. *N. Y. C. & H. R. R. R. Co.*(92 N. Y. 289) and *Byrne*v. *N. Y. C. & H. R. R. R. Co.*(104 id. 362) and *De Boer*v. *Brooklyn Wharf Co.*(51 App. Div. 289), in each of which cases there was dispute either as to whether the crossing was a public highway, or whether it had been used by the general public for a long period of time. Nor is it controlled by the peculiar features existing in *Swift*v. *Staten Island Rapid Transit R. R. Co.*(123 N. Y. 645), if indeed, the rule laid down in that case can still be deemed to he the law in view of the recent decision of the Court of Appeals in *Keller*v. *Erie R. R. Co.*(183 N. Y. 67).

The rule enunciated in *Sutton*v. *N. Y. C. & H. R. R. R. Co.*(66 N. Y. 243) is more applicable to the situation disclosed. In that case it was held that although a railroad company by permitting people repeatedly to cross its tracks at a point where there is no public right of passage, has given - an implied .license so to do, it owes no duty of active vigilance to those crossing to guard them from accident. It is manifest that this rule is the only practical and reasonable one to apply to the great trunk line railroads at least, where' scores of trains are operated daily and necessarily at a high rate'of speed.

It is true that the defendant either made or permitted to exist the openings in the fence, hut its reasonable answer to this is that from experience the fence would be torn down by the few people who desired to cross, and hence it was better to leave openings, Even this act of the defendant did not make the footpath a public crossing and impose upon it the active duty of being on the lookout for pedestrians such as exists respecting a public highway.

There is no claim that the defendant wantonly injured the deceased, or failed to do what it ought when its engineer observed his peril. Nor was the train going at a reckless rate of speed for it had only got under way after stopping at the Spuyten Duy vil station.

But if it be said that there was. some duty of care which the defendant omitted, still we think the deceased was not shown free from contributory negligence. ' Smoke and steam had settled down upon him after the first train passed. Notwithstanding this obstruc*327tion. to his vision, he proceeded to cross the tracks. Under such condition it was his duty to wait until the smoke had.disappeared. *(Heaney*v. *L. I. R. R. Co.,*112 N. Y. 122; *Keller*v. *Erie R. R. Co.,*183 id. 67.)

It is no answer to say that he was only sixteen years of age and unfamiliar with the operation of railroads. He had been living with the plaintiff for two weeks and had crossed and recrossed the tracks and must have observed that trains passed and repassed frequently. Had he waited until the smoke cleared he could have seen the approaching train for several hundred feet.- That- he did not wait until the smoke cleared is conclusively established by the testimony of plaintiff’s witnesses who observed him from the cliff as he came through the opening in the fence. They saw him-then but by reason of the smoke could not see him as he proceeded to cross. Notwithstanding his age and inexperience it is shown that he did appreciate the danger from passing trains because it was proved that he looked both ways when he came to the fence and waited for the. first train to pass.

Even if it be said that under the circumstances the decedent was not guilty of contributory negligence as matter o'f law, still the finding of the jury that he was free from negligence is against the weight of evidence and cannot be upheld.

The judgment and order should be reversed and a new trial granted, with costs to the appellant to abide the event.

Patterson, P. J., Ingraham, McLaughlin and Clarke, JJ., concurred.

Judgment and order reversed, new trial ordered, costs to appellant to abide event.