145 N.Y. 210 | NY | 1895
This action was brought to recover damages for injuries sustained by the plaintiff in alighting from one of defendant's street railroad cars on Plymouth avenue in the city of Buffalo on the 21st day of October, 1892. *213
The plaintiff was a boy ten years of age, and was at the time of the accident stealing a ride upon one of the defendant's cars. He stood, as he testified, upon the step of the front platform with one hand upon the handle of the dashboard and the other upon the handle on the corner of the car. While standing in this position the conductor passed through the car out upon the front platform, and with one hand reached out toward him (the witness indicating) and cried, "Hey!" At this he let go of the handle upon the dashboard, fell from the step, and his body swung around against the side of the car, he still holding to the handle upon the corner and in that position remained whilst the car proceeded ten or fifteen feet. He then dropped, falling by the side of the car in such a manner that the wheels passed over one of his legs.
Upon the trial motions for non-suit and for direction of verdict were made and denied.
In Clark v. N.Y., L.E. W.R.R. Co. (40 Hun, 605; affd.,
In McCann v. Sixth Ave. R.R. Co. (
In Hogan v. Central Park, N. E. River R.R. Co. (
The plaintiff was a trespasser, and the defendant owed him no duty of protection. Its servants had the right to remove him from the car, but in doing so were required to subject him to no unnecessary hazard. They had no right to seize him and throw him from the car whilst it was in motion, or to so violently assault or frighten him as to cause him to fall from the car. In order to justify a recovery the act of the defendant's servant must have been improper, unnecessarily dangerous, the proximate cause of the injury, and done for the purpose of removing the plaintiff from the car.
As we have seen, the conducter went out upon the front platform, extended his hand toward the plaintiff, and cried out "Hey!" The boy tells us that it frightened him and that he fell off. The record does not give us much information with reference to the character of the act, whether it was violent or threatening. It does give us to understand that the witnesses indicated to the jury, by illustrating with the arm, the manner and character of the act. We consequently may assume, in aid of the judgment, that the act was of such a nature as to justify the plaintiff in believing that he was about to receive punishment or bodily injury. *215
The case may be close and upon the border, but we incline to the view that we cannot interfere.
The judgment should be affirmed, with costs.
All concur, except ANDREWS, Ch. J., and GRAY, J., dissenting.
Judgment affirmed.