Grimshaw v. Lake Shore & Michigan Southern Railway Co.

Kruse, J. : The plaintiff’s intestate was killed at the intersection of two railroads, in a collision between a train on the defendant’s track and an engine upon the intersecting railroad, upon which he was riding. While he was upon the engine against the rules of the company, he was there with the consent of the engineer who operated the engine, and the engine was rightfully where the collision occurred. The defendant contends that it owed no duty to the deceased beyond that of not intentionally, willfully or recklessly injuring him, under the rule of the Keller case. (Keller v. Erie R. R. Co.,, 183 N. Y. 67.) The Keller case and other cases cited by Mr. Justice Williams in support of that proposition, are cases where the injured person was a trespasser upon the tracks or premises when injured, and the owner sought' to be made liable for the injuries so sustained. That, I think, is not this case. As to the defendant, he was not a trespasser ; as has been stated, the engine was rightfully there. I think the defendant railroad company is not absolved from liability because the deceased was riding upon the engine against the rules of the company which owned it, and upon whose track it was being operated when the defendant’s train wrongfully collided with the engine. In Wilson v. American Bridge Company (74 App. Div. 596) the defendant contended that the plaintiff, who was injured through its negligence, was a trespasser upon the lands of a railroad company, the particular negligence charged being that of carelessly [689] expelling hot water and steam from-a pipe on the defendant’s premises adjoining the railroad right of way over and upon the plaintiff who was walking along the railroad right of way; and it was there held th at ¿it was no concern of the defendant whether the use of the right of way by the plaintiff was rightful or against the will of the owner; that the question could not be urged to relieve the defendant of liability. I think the judgment and order, should be affirmed, with costs. All concurred, except Williams, J., who dissented, in an opinion.