65 N.Y.S. 434 | N.Y. App. Div. | 1900
Lead Opinion
The substance of the- cause of action set forth in the complaint herein is found in the allegation that the conductor of the defendant’s car, in which the plaintiff was a passenger, committed an unprovoked assault and inflicted severe injuries upon her. The proof made on her’ behalf, fully sustained her allegation. On a serious conflict of evidence the jury found in her favor. The liability of the defendant is well settled. That the conductor. in assaulting a passenger. was not acting within the scope of delegated authority is an immaterial proposition. The defendant’s liability as a common carrier is complete, even for the willful misconduct of its servant-to any one under the protection of a carrier as á passenger. (Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588.)
There was abundant evidence in this case without adding to it to show that this witness was not friendly to the defendant and that all his feelings and interest were enlisted on the side of his wife and client. It cannot be inferred because a person called as a witness in a particular case has, in the pursuit of his employment as an attorney at law, brought other actions against the opposite party, that, therefore and as a necessary consequence he must entertain a
The .judgment and order appealed from should be affirmed, with costs.
.Ingraham and McLaughlin, JJ., concurred.
Concurrence Opinion
(concurring):
I concur fully in the opinion of .Mr. Justice Patterson, but it seems t.o me that some mention should be made of the exception to that portion of the charge of the court in which the jury were instructed that if the plaintiff was assaulted as she and her husband and her witnesses swear she was assaulted, she was entitled to recover-reasonable damages from the company, because the company was-responsible for the acts of its conductor of that character, committed as these acts are said to have been committed. The defendant-excepted to so much of the charge as told the jury that the defendant was. liable for the acts of the conductor committed as these were, said to have been committed. What the court said, however, in that connection was sustained by authority. The defendant was a. common carrier whose duty it was to carry Mrs. Franklin safely and to treat her respectfully and to protect her against any injury arising from the negligence or willful misconduct of its servants while engaged in performing the duty which it owed to her. (Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588 ; Palmeri v. Manhattan R. Co., 133 id. 265.) Within these cases the defendant was clearly liable for the assault if it was made, and the court was correct in so instructing the jury.
Concurrence Opinion
I concur in result. I think it would have been error to exclude-, the questions had there not been other stronger evidence in the case upon the same point.
Judgment and order affirmed, with, costs.