22 N.Y.S. 738 | The Superior Court of the City of New York and Buffalo | 1893
This action was brought to recover damages for personal injuries sustained by plaintiff by reason of an alleged assault upon him, committed by the employes of defendant while he was a passenger upon one of defendant’s trains, on November 21, 1890. On that day the plaintiff boarded one of the trains of defendant at the village of Queens, a small station a few miles east of Jamaica. The ticket office was not open at that station, so that it was not possible for plaintiff to procure a ticket there. He entered a car, without a ticket, and just before the train got to Jamaica, the conductor in charge of that train asked the plaintiff for his fare. The plaintiff handed the conductor 50 cents. The fare from Queens to Long Island City or to Flatbush avenue*, Brooklyn, was the same, 40 cents. It was the duty of the conductor to give him 10 cents in cash and a duplex ticket entitling him to a ride to either of these stations, as he'might elect. There is some conflict of evidence as to which of these destinations the plaintiff said he was going. The plaintiff alleges that when he was asked where he was going he replied that he was going to Flatbush avenue, Brooklyn; but the conductor testifies that he understood him to say that he was going through to Long Island City. The conductor said, when he took the 50 cents from plaintiff, “I will return you the change and the ticket soon,” or words to that effect, and went on. Jamaica is a point of junction of two lines of railroad, belonging to the defendant; the one line running to Long Island City, the other line running from Jamaica to Flatbush avenue, in the city of Brooklyn. When the plaintiff reached Jamaica, the train for Brooklyn was standing there on a track, with a platform between it and the track upon which the Long Island City train pulled into Jamaica. Here passengers are transferred from one line to the other. When the Long Island City train, upon which plaintiff was a passenger, reached Jamaica, the conductor had not returned with the change or ticket. As the plaintiff wished to take the other train, going to Brooklyn, which left in a few moments, he went in search of the conductor, and found him just as the Long Island City train was leaving Jamaica. He asked the conductor for the change and ticket, but the conductor had not time, as he testifies, to give him either. The conductor' testifies that he, said
The plaintiff was rightly on the first, or Long Island City, train, and lawfully entitled to ride to Flatbush avenue. A passenger, unable to procure a ticket through the fault of the company, may take passage on the train, and, upon a tender of the ticket fare, will be entitled to all the rights and privileges that a ticket would afford him. Railroad Co. v. Graham, 3 Ind. App. 28, 29 N. E. Rep. 170. On payment of his fare the plaintiff’s contract was complete in so far as his right to be carried to his destination was concerned. Had the conductor of this train, to whom plaintiff paid the 50 cents for his fare, ejected him"for the reason that he had no evidence that plaintiff had a right to ride on the train, defendant would have been obliged to redress the wrong by the payment of compensatory damages. If the plaintiff, while on the second, or Brooklyn, train, did not substantially comply with the reasonable regulation of the defendant, which required him to produce a ticket or pay his fare, or in some other way show sufficient evidence of a right to ride, the conductor of that train
In applying the law as above stated to the case under consideration, this question is presented: Was the conductor right in removing the plaintiff from the Brooklyn train at Morris Park, or had the plaintiff a right, under the circumstances, to remain in the car, and be carried to his destination, without producing a voucher showing that he had that right, or paying a fare to the conductor? The removal of the plaintiff by the conductor of the Brooklyn train was not authorized if the conductor had sufficient evidence of the plaintiff’s right to ride. The conductor was entitled to evidence showing that the plaintiff had acquired a right to be transported on his train to Brooklyn, or to demand plaintiff’s fare. But, under the circumstances of this case, we do not think there was an obligation upon the plaintiff to show the conductor that he (the plaintiff)
In the case of Hamilton v. Railroad Co., 53 N. Y. 25, the plaintiff, by instructions of the conductor of the car upon which he had been riding, and to whom he had paid his fare, changed cars, and was told by the conductor of the car to which he was transferred, upon entering the same, that no transfer ticket Avas necessary; that, if he came from the other car, he could go on board of the second car, and continue his journey on that car, without any additional fare. Subsequently, when he failed to produce a ticket, the conductor ejected him from the car. It was held by the court of appeals in that case that this statement of the second conductor was equivalent to an assurance that he could ride on the car under his control, without further payment of a fare, or evidence of a right so to do; and that the company would be liable for his wrongful ejectment from the car by the conductor who had given this assurance. The case at bar, while not as strong on this point, much resembles the Hamilton Case. While the question whether the plaintiff . was wrongfully or rightly removed was, upon established facts, a question of law, we think it was the province of the jury, upon the evidence, to determine the facts, and that it was error for the court to take this question away from the jury, and to charge that the plaintiff was Avrongfully removed. If the conductor of the Brooklyn train did not have the evidence of plaintiff’s right to a seat, he had the right to eject the plaintiff, and the plaintiff’s remedy was against the defendant for the breach of contract which occurred when the first conductor failed to give the plaintiff a duplex ticket before he