Boyles v. New York, Ontario & Western Railway Co.

Appeal from an order and judgment of the Supreme Court, entered in the office of the clerk of the county of Sullivan on October 21, 1936, dismissing the complaint upon the merits at the close of the testimony. The action was brought to recover damages for the death of plaintiff’s intestate who was struck by a train of defendant and fatally injured while walking along defendant’s tracks between Parksville and Livingston Manor in the county of Sullivan. At the close of the entire case the defendant moved for a dismissal of the complaint upon the ground that there was no proof of negligence, that the deceased was a trespasser and defendant was under the duty of merely refraining from inflicting upon him a wilful or wanton injury, and that the proof affirmatively showed contributory negligence. This motion was granted. The plaintiff’s intestate had come onto the tracks by way of crossing an open field and climbing a fence. Plaintiff attempted to show that there was a path along the route which her intestate had traveled sufficient to compel the defendant to take extra precaution to avoid injuring persons who came onto the tracks by way of this path. After climbing the fence onto the defendant’s right of way decedent did not proceed directly *803across the tracks but walked a short distance along them before he was struck. Order and judgment unanimously affirmed, without costs. Present —■ Hill, P. J., Rhodes, Crapser, Bliss and Heffeman, JJ.