The plaintiff was injured while crossing the track of the defendant’s railroad within the corporation limits of the city of Albany. The plaintiff was a mechanic, and upon returning home from his work on the evening of the day upon which the accident occurred, proceeded down some steps to the railroad track of defendant, walked along on the east side of the track, upon a sidewalk, and then, because it was bad, took the middle of the east track some fifty or sixty feet toward Albany, until he came to a malt house, then crossed over to the west track where two tracks came near together, and to about the middle of what was claimed to be a street, where, after looking to see if trains were approaching, he turned to look toward Schenectady when an engine came along, caught him on the left arm by the part of the machine at the side, knocked him down across the track, when the wheel ran over his left leg and cut it off. At the place where the plaintiff was injured, proceedings had been taken to lay out a street; awards had been made to the owners of the land, and all but the defendant had been paid. There was proof to show that the alleged street was being *516graded, and that the teams working on it passed through. It appeared, however, that the city had not done any work in opening or grading the street, or in taking' possession of the railroad over which it was located, but there was evidence that people had been in the habit of passing and re-passing on foot to and from the Observatory, and to Tivoli Hollow and Dederick’s, by a foot-path.
I think the court erred in refusing the motion for a nonsuit. It is apparent that there was no highway or street laid out where the accident occurred. This was very properly, I think, assumed by the judge in his charge, as the case is entirely destitute of any evidence showing that such was the fact.
The question then arises whether the use of the defendant’s land for passing and re-passing in the manner stated, was of such a character as to give the plaintiff and other parties a right which imposed upon the defendant the duty of exercising care and caution toward strangers who chose to trespass upon defendant’s land. I am not aware of any legal principle upon which any such right can be upheld. The defendant had an exclusive right to the use of its track at the place where the plaintiff was injured. The plaintiff was there without any authority whatever, and was therefore guilty of negligence in being on the track at the time, which negligence contributed to the injury and should have been a ground for non-suit.
The fact that other persons were in the practice of passing at the place named did not, of itself, confer any right upon the plaintiff or impose any additional duty upon the defendant, and the court was clearly wrong in charging to the contrary in effect. No right of the public can be acquired in such a manner, at least without evidence of notice and acquiescence afterward. If such a theory could be permitted to prevail, railroad corporations might be subjected to serious liabilities without their knowledge or consent by the action of individuals assuming to establish rights which are entirely unauthorized. I do not understand that they owe any duty even to the owner of a private right of way through which they pass, which calls upon them to exercise care in the running of their trains. Much less should it be imposed near a populous city where trespassers expose themselves to injury without license. They are not bound to look out for those who, without a particle of right, intrude upon their tracks. Such an act is unlawful and not to be expected, and it matters not whether the population be large or *517small, the rule of law is unswerving and cannot be changed to meet the exigencies of varying circumstances which may attend unlawful trespassers upon their property. It is enough in this case to defeat plaintiff’s action, that the plaintiff was on defendant’s track without license or permission, and with no proof to show that he was invited, or that any of the defendant’s officers or employees had knowledge that it was appropriated to any such use. The principle stated is fully upheld in Phil. & R. R. R. Co. v. Hummell, 44 Penn. St. 375, 379, 380. See, also, Bush v. Brainard, 1 Cow. 78.
Even if there was any evidence from which a license might be inferred, and the plaintiff was not a trespasser, such license created no legal right and imposed no duty upon the defendant, except the general duty which every man owes tó others, to do them no intentional wrong or injury. Nicholson v. Erie Railway Co., 41 N. Y. 530. The court charged in accordance with this proposition, which, of itself, I think, authorized a nonsuit.
The court was in error in the refusal to charge the various requests made by the defendant’s counsel which it did not charge, and for these errors, as well as the refusal to nonsuit, a new trial must be granted, with costs to abide'the event.
New trial granted.