de Boer v. Brooklyn Wharf & Warehouse Co.

Hirschberg, J.: The plaintiff’s intestate, a- child twelve years of age, was killed at a place known as “ Commercial Wharf ” in Brooklyn, in the course of the operation df a steam railroad train by the defendant. Th® engine struck a truck on which there was a .heavy box of goods, shoving it against the warehouse, and crushing the child as she was on her way to Columbia street, doing an errand for her mother. The details of. the accident are immaterial at this time. It is' sufficient to say. that they would have justified, the jury in concluding that the child was free from fault, and that the ' accident was occasioned by.the absence of ordinary care in .the operation of the train. The complaint was dismissed on the ground that, as the place-where the accident occurred was private property, used by the public only as licensees, the duty of the defendant was limited to. the refraining from constructing pitfalls and other like sources of danger, but did not extend to- the exercise of care in any degree in the operation of the railroad. This view of the defendant’s duty was erroneous, and requires a retrial of the case. The place has been open to the public for at least twenty-eight years. It is on a line continuing Conover street, and' leading to other public streets, to Hamilton avenue and the ferry.' The use by the public during the period named appears to have been as general as the use of other streets, and to have been by pedestrians and vehicles of every description.' The defendant commenced the operation of the cars on double tracks about eight years ago, and has since continued it with full knowledge that the premises have been . and are open to and used by the public generally as a thoroughfare. Assuming that this use is only by implied license, and that no _ duty of active vigilance is thereby imposed on the defendant to protect [291] the licensees from injury, yet as the movement of the trains is necessarily attended with danger to life unless reasonable care is exercised, the law does require that the defendant shall exercise such care, and holds it to liability for its absence. There is no difference in this respect between the case of the defendant and that of a public railroad company in either practice or principle, and the authorities on the subject are numerous and uniform. (Beck v. Carter, 68 N. Y. 283 ; Barry v. N. Y. C. & H. R. R. R. Co., 92 id. 289 ; Byrne v. N. Y. C. & H. R. R. R. Co., 104 id. 362; Swift v. Staten Island R. T. R. R. Co., 123 id. 645; Austin v. Long Island R. R. Co., 69 Hun, 67; affd., 140 N. Y. 639 ; Larkin v. N. Y. & N. R. R. Co., 46 N. Y. St. Repr. 658; affd., 138 N. Y. 634 ; Larmore v. Crown Point Iron Co., 101 id. 391; Walsh v. F. R. R. Co., 145 id. 301.) It is needless to say that the counsel for the respondent cite no case in support of the proposition upon which this nonsuit rests, viz., that the defendant is under no legal obligation to exercise any care in the running of its trains so far as the traveling public is concerned. On the contrary, they appear to admit that on the theory that the plaintiff’s intestate was a licensee “ the measure and limit of the defendant’s duty was reasonable care to avoid doing anything out of the ordinary and usual course of its business from which an accident or an injury might reasonably have been anticipated.” The accident did not occur because of anything connected with the ordinary and usual course of the conduct of the defendant’s business, but because of carelessness and negligence in the conduct of the train in question, which, we assume, has not been the ordinary and usual course of the defendant in the operation of its road. The case of Downes v. Elmira Bridge Co. (41 App. Div. 339) is a very different case from this. That decision was controlled by the fact that dangerous work was in obvious progress on the dock, during the course of which the general public were excluded, and the court held that the obligation of the defendant was limited to refraining from wanton and willful injury. The condition of the dock was suchas to “indicate that the public right of use was interrupted,” and the plaintiff there was injured by the moving of a girder in the usual way and bv the usual appliances, the risk of injury from which he knowingly assumed by unnecessarily placing himself 'in a position of obvious [292] danger. The - court, however, distinctly recognized the principle now under consideration, viz. (p. 342), that “ under ordinary conditions the plaintiff would be considered as being upon the dock under, an implied invitation from the owner, and consequently, entitled to protection, so far as the exercise of reasonable care by defendant would insure the same.” The-judgment should be reversed. All concurred. Judgment reversed and- new; trial granted, costs to abide the event.