I dissent from the judgment about to be handed down. I think that there was no question for the jury raised by the plaintiff at the close of her case and that she was dismissed properly. When she left the customary way of access to the station, to cut across the defendant’s lands to its station, she admittedly did so to save time. There is no evidence of license or invitation express or implied. She found no way, but made it. She entered the lands as a trespasser and passed along between its rails as a trespasser misdemeanant. (Marra v. New York Central & H. R. R. R. Co., 139 App. Div. 707, citing Keller v. Erie Railroad Co., 183 N. Y. 67, 72.) Such was her status when she stepped *538forward upon the cattle guard that was located entirely within those rails. As a trespasser she took the land as she found it (Magar v. Hammond, 183 N. Y. 387; Birch v. City of New York, 190 id. 397), and the sole obligation of the defendant was not to injure her willfully or recklessly (Larmore v. Crown Point Iron Co., 101 N. Y. 391; Keller v. Erie Railroad Co., 183 id. 67, 71, 72; McCaffrey v. Baltimore & Ohio R. R. Co., 201 id. 115; Petur v. Erie Railroad Co., 151 App. Div. 578; affd., 208 N. Y. 615), for the reason that a trespasser is not caput lupinum. (Palmer v. Gordon, 173 Mass. 410.) That the cattle guard was dangerous cast no liability on the defendant. Liability must be found in danger and deceit, as a spring gun or a snare. (Larmore v. Crown Point Iron Co., supra.) The full danger of the cattle guard was obvious. It was not a trap. It was not a deceit, but a deterrent. It did not lure to injury, but halted by its threat of injury.
The defendant was not bound to fence its land against the plaintiff. It was not bound to set up a sign that there was no passageway at this point. (Stevens v. Nichols, 155 Mass. 472.) It was not bound to warn against a danger that was obvious and that could not be incurred save by a trespasser misdemeanant. The defendant was not liable for negligence save for that shortcoming that is aptly described as “ affirmative negligence ” in Larmore v. Crown Point Iron Co. (supra). If negligence constituted liability, then there was contributory negligence on the part of the plaintiff that barred her and justified her dismissal. (Parsons v. N. Y. C. & H. R. R. R. Co., 85 Hun, 23; Heiss v. C., R. I. & P. Ry. Co., 103 Iowa, 590; Mason v. Mo. Pac. Rly. Co., 27 Kan. 87; Sturgis v. D., G. H. & M. R. R. Co., 72 Mich. 619; Hutchinson on Carriers [3d ed.], 1062. See, too, Frost v. Grand Trunk Railroad Co., 10 Allen [Mass.], 387; Bancroft v. Boston & Worcester Railroad Corporation, 97 Mass. 275.)
The proposition of the prevailing opinion embraces three features, namely, the inherent danger of the fabric, the location of it, and the snow that had fallen to cover it. I have to consider only the snow. There was evidently not a deep covering of snow, because the plaintiff saw the rails, recognized the two tracks and the right of way when she turned in upon the land, and the cattle guard with upright teeth was between *539the rails. All we learn of the time of the snowfall is the testimony that it had not fallen since morning. I think that there was no obligation to clear off the snow from the rails or the cattle guard. Even if there were, the omission was negligence, and not the affirmative negligence that could only avail a trespasser. And despite the snow the plaintiff admittedly saw the rails as she walked between them, and hence was a willing trespasser misdemeanant.
Of the three cases cited in the prevailing opinion, the first declares a cattle guard in a street a nuisance, but this cattle guard was not in a street; the second presents the “ very important ” feature of snow piled up by the defendant in the usual way of access so as to render it impassable and the consequence that the passengers were forced to cross the rails; and the third presents the fact that the excavation of the former cattle guard was dangerously near the place where passengers were admitted to the trains.
I vote to affirm.
Blackmar, J., concurred.
Judgment reversed and new trial granted, costs to abide the event.