85 N.Y.S. 986 | N.Y. App. Div. | 1903
The plaintiff has had the verdict of the jury against the' defendant for a considerable sum as damages for an assault committed upon him by the conductor of one of the defendant’s street cars, while he was a passenger thereon. From the judgment entered upon the verdict and from an order denying defendant’s motion for .a new trial, defendant has appealed to this court.
The story of plaintiff’s witnesses, which the jury has believed, is that he and his wife, about midnight, boarded one of the defendant’s open cars at the corner of Pitt and Houston streets, in the
The testimony of one of the defendant’s witnesses tended to show that the plaintiff and his wife looked “ as if they might have had a few drinks; they were scrappy, so to speak; they looked as though they was having a good time; ” that at the time of the altercation all three persons were standing together in the aisle with their hands in the air, and plaintiff aimed a blow at the conductor, who threw up his elbow to ward it off. Another witness testified that the wrangling continued for five or ten minutes, when the plaintiff stood up and made a strike at the conductor, who threw up his arms to fend off the blow.
In the course of the charge the learned court said to the jury: “ Now, if a man strikes you it is your business to go away and. not strike him back, but if you do hit him back, the law makes excuses for you by mitigating damages. But unless it is fairly done in self-defense it is not justified; it is not excused absolutely; there still is a cause of action for it and the only question would be how far the circumstances ought to mitigate the damages, and it is almost instinctive in every man to make allowances if one strikes after he has been hit himself. But while there is that tendency to make
Although in the body of the charge, m the language quoted, the court announced the correct rule as to the mitigation of compensar ' tory damages, he clearly and unequivocally recanted the proposition by his language in refusing the defendant’s request, and in his supplementary remark thereupon he adopted the view that, though the conduct of the plaintiff was such as to aggravate the conductor into an assault, the jury were not entitled to take that conduct into consideration. to mitigate compensatory damages; that such mitigation for that reason could only be had' where punitive or exemplary damages were sought. The jury were bound by the latter charge; for where a charge made at the request of a party at the close of the main charge is inconsistent with the latter, the subsequent language should control the jury. (Goetz v. Metropolitan Street R. Co., 54 App. Div. 365, 369.) The final instruction of the learned trial judge is not supported by the authorities. While the court was, perhaps, not called upon to decide this question in Kiff v. Youmans (86 N. Y. 324), Danforth. J., considered it and collated the authorities in these words: “It still remains that the plaintiff provoked the trespass, was himself guilty of the act which led to the disturbance of the public peace. Although this provocation fails to justify the defendant (2 Greenl. Ev. § 98
That case has been cited in the third department of this court, which has recognized the authority of the conclusions reached by Judge Danforth upon this question. (Genung v. Baldwin, 77 App. Div. 584.) It is urged by the respondent that the case of Weber v. Brooklyn, Q. C. & S. R. R. Co. (47 App. Div. 306) is authority to sustain the theory adopted by the trial court in this case. In this we are unable to concur. Mr. Justice Willard Bartlett, expressing the opinion of the court in the Weber case, quotes from the' charge there as follows: “ If you find that his conduct was insulting, his language indecent and provoking, you may take that into consideration in mitigation of damages, if you find that he did not assault the conductor.” The appellant in that case urged that this was error, but the record disclosed no exception to the sentence thus quoted, and the court in deciding that appeal did not express any opinion whatever in relation to that portion of the charge.
Inasmuch as the plaintiff has had a verdict of considerable size for injuries inflicted upon him, we cannot say that the rule as
For the error pointed out the judgment and order should be reversed and a new trial granted.
Goodrich, P. J., Woodward, Hirschberg and Jenks, <TJ., concurred.
Judgment and order reversed and new trial granted, costs to abide the event.
See 15th ed:— [Rep.
See 15th ed.— [Rep.