Hart v. Metropolitan Street Railway Co.

34 Misc. 521 | N.Y. App. Term. | 1901

Bischoff, P. J.

The defendant gave no evidence and the jury rendered a verdict in its favor upon the testimony presented on behalf of the plaintiff. Corroborated by two disinterested witnesses, the plaintiff’s testimony was that he boarded the front platform of the defendant’s car, while in motion, and was then seized by, the gripman and thrown from the moving car into the street. The case was submitted to the jury with the unequivocal instruction that the assault by the gripman, if not within the scope of his employment, was a matter for which the defendant was not liable, and that if the plaintiff had boarded the ear without the defendant’s consent a verdict might he rendered in its favor. The accuracy of the charge is questioned by the exceptions taken.

That the plaintiff had boarded the car as an intending passenger was not the subject of dispute, nor was there doubt that.he had safely boarded it. Being upon the car as a passenger, he was entitled to protection from an assault by the defendant’s employee in charge of the vehicle, whatever the motive of the assault, and if he- was not entitled to remain on the car, through some infraction of the reasonable rules of the company, he was subject to .removal by the use of no more than reasonable force, if he refused to leave voluntarily. Smith v. Man. R. Co., 45 N. Y. St. Repr. 865; 138 N. Y. 623.

If it be assumed (for there is no proof) that the defendant’s rules prohibited an entrance by way of the front platform, in this instance not obstructed by a gate, the plaintiff might possibly have been refused passage, but no rule of law required bim to take his instructions of the defendant’s rules at the risk of his life. See Smith v. Man. R. Co., supra.

We certainly cannot hold that the plaintiff’s recovery was prohibited by his having boarded the car while in motion. If this had contributed to the situation which resulted in his injury, as a proximate cause, there would be no doubt that his case must fail; but he placed himself in a position of safety, so far, at least, as the movement of the car had any bearing upon his injury, and while his act may have contributed to the fury of the gripman, it was not contributory negligence.

Judgment reversed and new trial ordered, with costs to appellant to abide the event.

Leventeitt and Clarke, JJ., concur.

Judgment reversed and new trial ordered, with costs to appellant to abide event.