Casto v. Long Island Rail Road

Chief Judge Conway (dissenting).

We agree that the infant plaintiff having entered upon the defendant’s premises without invitation was a trespasser and that the defendant had no affirmative duty to make the place safe for him. However, there is also the rule enunciated in Ansteth v. Buffalo Ry. Co. (145 N. Y. 210) that the defendant railway’s servants upon discovering the trespasser may not willfully, improperly and unnecessarily act toward him so as to cause him injury. Thus, despite this child’s status as a trespasser, it is apparent that defendant had no privilege to commit affirmative…