Byrne v. New York Central & Hudson River Railroad , 94 N.Y. 12 ( 1883 )

Rapallo, J.

The sole question submitted to us in this case is whether at the time the plaintiff was' injured, the alley, or that portion of it where the injury occurred, was a “ traveled public road or street,” before crossing which the defendant was bound to give the statutory signals.

We are clearly of opinion that it was not. Assuming that the locus vn quo had been so dedicated to the public by the owners of the land as to constitute it a public street, which the local authorities would have had the right to improve and put in use as such, that is not sufficient to bring it within the statute.

The statute is evidently intended for the protection of persons crossing the track of the railroad, when traveling on the public street or road, and it was held in the case of Cordell v. New York Central & Hudson R. R. R. Co. (64 N. Y. 535) that according to the plain language of the statute, the street or road, to bring it within the requirement of the statute, must be both tra/oeled and public. In the present case the alley at the place of the accident was not traveled or capable of being traveled. It extended on paper from Madison street in the city of Troy, northerly to the South side of the Poestenkill creek. It was crossed about midway by the track of the railroad. The only evidence of any travel upon it Avas, that at the south end of it, where it entered Madison street, there was a store called the Iron Works store, and that teams would enter the alley from Madison street to receive goods from the store, and would then turn around before reaching the track of the railroad; and the father of the plaintiff, who had lived many years in the immediate locality, testified that there never was any travel upon the alley, except south of the railroad track, that when they got to the track they turned; consequently there was no travel across the railroad track at that place, nor was there any occasion for such travel as there was no bridge across the creek over which travelers could pass, and it does not appear that any use was ever made of the alley, except to receive goods on teams from the store south of the track.

The judgment should be reversed and a new trial ordered, costs to abide the event.

All concur.

Judgment reversed.