Judgment affirmed, with costs; no opinion.
Concur: LEHMAN, Ch. J., LOUGHRAN, FINCH, RIPPEY, CONWAY and DESMOND, JJ. LEWIS, J., dissents in the following opinion.
LEWIS, J. (dissenting).
The respondent has recovered damages for injuries sustained when he was struck by a train on the appellant's right-of-way at a point of danger removed from any thoroughfare. The record, as I view it, discloses no evidence from which the jury could find that at the time and place of his injuries the respondent was either a licensee or a business invitee of the appellant. On the contrary, the respondent was in a legal sense a stranger to the appellant. Being then and there engaged in his own pursuits, he was a trespasser at common law and by statute (Railroad Law, § 83; Penal Law, § 1990). In those circumstances the appellant owed no duty to the respondent except to refrain from inflicting intentional or wanton injury. ( Keller v. Erie R.R. Co., 183 N.Y. 67, 71, 72; Gleason v. Central New England Ry. Co., 261 N.Y. 333, 335-337.) Accordingly, I dissent.