[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] *Page 69 It appears, upon reference to the opinion below, that the Appellate Division justices considered the evidence as conclusively proving the deceased to have been guilty of contributory negligence. It, either, showed that an unimpeded view of the approaching train was possible for several hundred feet, at a point near to the defendant's tracks, in which case the deceased could have seen the train had he, actually, looked; *Page 71 or, if it could be believed that smoke and steam from the passing train of the New York Central and Hudson River Railroad Company had so settled down upon the tracks as to obstruct the view, at the time, then, it was his duty to stop until the obstruction had ceased. (Heaney v. L.I.R.R. Co., 112 N.Y. 122.) It was said that, "whether we accept as the truth that the smoke and steam temporarily obscured the outlook, or whether there was nothing to shut off the sight of the train, the plaintiff ought not to have recovered." We quite agree with the learned justices that the deceased had been guilty of contributory negligence, as matter of law. He was indifferent, apparently from the evidence, to an imminent and evident peril. If, and the plaintiff so contends, the evidence did not show that the view was obstructed by smoke and steam, then the testimony that the witnesses did not see the defendant's train, on this bright, clear afternoon, with no intervening obstruction, is incredible as matter of law. It was inherently improbable; for it was impeached by physical facts and should be rejected. (See Dolfini v. Erie R.R. Co., 178 N.Y. 1,4; Hudson v. R., W. O.R.R. Co., 145 ib. 408, 412.)
We would be satisfied to affirm the order of reversal, without further opinion, were it not that another ground, upon which the plaintiff should have failed in his action, has been negatived in the opinion below. It was considered, as "the use of the defendant's tracks at this point by pedestrians had been so general, notorious and long continued, that the defendant can fairly be said to have acquiesced in that use" and that persons, who had been in the habit of making use of its tracks, stood towards it in the character of licensees; to whom the duty was owing of giving warning of the approach of trains at that point. Thus, in my judgment, was distinctly erroneous. I think that it was not within the power of the defendant to permit, or to suffer, persons, not in its employment, to walk upon and along its tracks at a place where there was no highway and but an intersection of railroad tracks, and that no length of acquiescence in their doing so, under the circumstances of *Page 72 this case, could create a right of user, by license, or by sufferance. This ought to be clear from section 53 of the Railroad Law, (Laws of 1892, ch. 676), which was intended to protect the traveling public, as well as the railroad companies. It reads that "no person other than those connected with or employed upon the railroad shall walk upon or along its track or tracks, except where the same shall be laid across or along streets or highways, in which case he shall not walk upon the track unless necessary to cross the same." It is not easy, if at all possible, to see how any right, as by license, could be acquired through acquiescence to do something which was so clearly in violation of the statutory inhibition. An act expressly prohibited by the public statute is, in its inception and always must continue to be, unlawful. The defendant's powers and capacity to act are defined and controlled by statute law and, as a creature of statute, it could, neither expressly, nor passively, confer a right which the statute denies. Whoever walks upon, or along, the tracks of a railroad, except when necessary to cross the same upon some street, highway, or public place, violates the law and is like a trespasser, and the company's servants are under no other obligation than to refrain from willfully, or recklessly, injuring him.
The case falls within the precise inhibition of the Railroad Law; because, at the point where the accident happened, there was neither street, nor highway, justifying the use of the tracks for a crossing. As it has been shown, the use was merely for convenience in making a short cut between the streets and the traveling of the public was from railroad track to railroad track. Even in cases where persons were killed, or injured, while merely crossing railroad tracks, and where, by reason of the situation and from the force of circumstances, a license to cross was deemed to be implied, it has been held that they took the risks incident thereto and of the dangers, to which they might be exposed from the management of the road in the usual and ordinary way, and that no other duty rested upon the railroad company than not to intentionally, or *Page 73 wantonly, injure them. (See Nicholson v. Erie Railway Co.,41 N.Y. 525; Sutton v. N.Y.C. H.R.R.R. Co., 66 ib. 243;Gunther v. N.Y.C. H.R.R.R. Co., 81 App. Div. 606;Lagerman v. N.Y.C. H.R.R.R. Co., 53 ib. 283.) The cases ofBarry and Byrne v. N.Y.C. H.R.R.R. Co. (92 N.Y. 289; 104 ib. 362), are not in point; because the persons injured were crossing the tracks at points where it was conceded that there was a right of way, or an alley, or public passageway, by reason whereof it was incumbent upon the railroad company to exercise reasonable care in the movement of its trains. Such cases as those come, manifestly, within the exception of the statute. Here there was nothing of the kind. The defendant's tracks, in the locality of the accident, were distant from any street, or highway, and no excuse, save that of convenience, justified their use by the deceased and his companions. The engineer had the right to assume that they would get off the tracks and was under no obligation to depart from the usual way of operating his train. (Spooner v. Del., L. W.R.R. Co., 115 N.Y. 22, 33.)
The question discussed was sufficiently raised by the denials of the motion to dismiss the complaint and to direct a verdict; inasmuch as the evidence had failed to show any neglect of a duty owing to the deceased, or any wanton, or willful, conduct on the part of the defendant's servants, and it was, expressly, raised by the exception to the refusal of the court to instruct the jury that the defendant was not required to treat the place of the accident as a public street, or sidewalk, or alleyway.
For the reasons which have been given, the order appealed from should be affirmed and judgment absolute should be awarded to the defendant, upon the plaintiff's stipulation; with costs in all the courts.