Opinion
December 9, 1946.
Present — Hagarty, Acting P.J., Carswell, Johnston, Adel and Nolan, JJ. [See post, p. 976.]
In this action to recover damages for the alleged negligence of respondent, causing decedent's death, appellant claimed that respondent was negligent in failing to provide an embankment or fence between its tracks and a public highway "high enough and with barbed wire to prevent a child from climbing over." Appellant's intestate, an infant almost thirteen years of age, climbed a fence about five feet in height between a public highway and respondent's tracks, climbed a freight car and was electrocuted when he came in contact with a catenary wire above the freight car. Judgment in favor of respondent, entered on the trial court's order, dismissing the complaint after trial, unanimously affirmed, with costs. No opinion.