Opinion
May 17, 1943.
In an action by the infant plaintiff to recover damages for personal injuries, and by the father for loss of services and for medical expenses, judgment in favor of the plaintiffs reversed upon the law, with costs, and the complaint dismissed upon the law, with costs. The findings of fact implicit in the jury's verdict are affirmed. The infant plaintiff, playing upon defendant's freight train, was injured when he slipped and fell underneath a car as the train began to move. Defendant's alleged liability is predicated upon the act of its flagman in shouting "Get off" or "Get out," thereby frightening the infant and causing him to fall. It is undisputed that he did not see the flagman but merely heard him. The infant was a trespasser to whom the defendant owed no duty other than to refrain from affirmative acts of negligence, or from willfully and intentionally injuring him. The mere calling to a trespassing boy to get off, unaccompanied by violence or any overt act showing an intention to use force, does not constitute affirmative or willful negligence. ( Ansteth v. Buffalo Ry. Co., 145 N.Y. 210; Prenderville v. Coney Island Brooklyn R.R. Co., 131 App. Div. 303; Luter v. Union Ry. Co., 84 Misc. 46; Osalek v. Baltimore Ohio R.R. Co., 295 Penn. St. 553.) Close, P.J., Hagarty, Johnston, Adel and Lewis, JJ., concur.