Kovarik v. Long Island Railroad

Putnam, J.: Defendant maintains its passenger station in Patchogue in the block between Ocean avenue on the east and Railroad avenue on the west. Patchogue village by the 1915 census had 4,506 inhabitants. It was not proved how near the passenger station was to this Ocean avenue crossing, but the photographs and diagram in evidence indicate that east of the station was an express house with baggage platform in line with the station platform. The eastern end of this baggage platform had three steps which came down to the ground about 100 feet from Ocean avenue. To the south, defendant’s station grounds had a gate opening from Ocean avenue. The photographs also show at least two openings in the street fence, giving access therefrom toward the steps of the express house. A cattle guard covered the double tracks to an area of eight and one-half feet by twenty-four feet, which came within five and one-half feet of the Ocean avenue building line. Strips of sheet steel were cut into raised triangles with sharp edges forming upright teeth three inches high and three inches apart. There was no sign or other warning to persons against entering the station grounds across these tracks. At the south side of the crossing was a small wing fence. But at the north there was no wing fence whatever, leaving an open space between the north rail and the side fence by the post of the drop gate. On the day of the casualty plaintiff had come to Patchogue under a round-trip ticket from Sayville, and had left the station by the passenger gateway south of the tracks. She had no previous acquaintance with the locality. After having been engaged in shopping in Patchogue, in the afternoon [536] she came back along Ocean avenue, intending to take a return train to Sayville. At the crossing she saw this train standing alongside the station. It had been snowing so that these guards were covered. Plaintiff did not see the projecting points, or know that such guards were there. In her haste she started from this crossing, intending to go diagonally over the tracks to the train. She struck these steel points beneath the snow, and fell, cutting her arm, also piercing her kneecap, and sustained other injuries.. At the trial, plaintiff sought .to show that in 1912 these ' cattle guards were installed at the station side of this Ocean avenue crossing, but this evidence was excluded. Plaintiff also produced a witness to prove that others had been injured at this same cattle guard, but this was also disallowed. At the close of her proofs, she was nonsuited. In 1851, Hand, J., said that “ cattle guards in the streets of a city or village would be nuisances ” (Vanderkar v. Rensselaer & Saratoga Railroad Co., 13 Barb. 390, 393), which applied to the older and less dangerous guards by openings covered by wooden strips. Where snow had gathered on a station sidewalk so that passengers took to the railroad tracks to reach the highway, an alighting passenger fell into this snow-covered opening and was there struck by a passing train. Mr. Justice Talcott, writing the unanimous opinion of the court, declared: “ In this case the leaving of the plank sidewalk in such a condition as that passengers from the station to the highway, were obliged to take the defendant’s tracks, arid then suffering the snow to accumulate in an open cattle guard, so that there was nothing discernible upon the surface to indicate the existence of a cattle guard or any other hindrance to a safe and expeditious crossing operated as a mere trap.” (Hoffman v. N. Y. C. & H. R. R. R. Co., 13 Hun, 589, 593; affd., 75 N. Y. 605.) In placing these inherently dangerous guards so near the station and between it and a village highway crossing, I think the defendant owed a duty of warning against such a danger, especially when they were hidden under the snow. Cattle guards are not to stop passengers or to exclude persons from entering station precincts. The lawful use of them is to prevent the ingress of domestic animals. I think plaintiff [537] should have been permitted to show fully if .these guards were placed there in 1912, also whether they were installed on both sides of this crossing. If not, there might be an inference that the real purpose was to exclude pedestrians. The fact of previous injuries therefrom was also relevant to the question of warnings or notice. Laws of 1915, chapter 281, inserted the word “ cattle-guards ” in section 52 of the Railroad Law, so as to declare that if cattle-guards are not provided or maintained a railroad would be liable for damage to animals on the tracks. However, such risk toward estrays in a populous village cannot justify a railroad company in exposing passengers to hurt by such guards at street crossings alongside station grounds when allowed to present the deceptive appearances here shown. (Hulbert v. New York Central R. R. Co., 40 N. Y. 145.) The absence of any wing fence so as to leave an open space by the north tracks, if not an invitation to enter the station grounds, at least will make plaintiff an unintentional trespasser, without criminal intent. (People v. Stevens, 109 N. Y. 159, 163.) I advise to reverse and to grant a new trial, with costs to appellant to abide the event. Rich and Jay cox, JJ., concurred; Jenks, P. J., read for affirmance, with whom Blackmar, J., concurred.