89 N.Y.S. 49 | N.Y. App. Div. | 1904
The complaint in this action charges that a conductor on one of the defendant’s cars .unlawfully threatened to eject the plaintiff therefrom, and did wrongfully and unlawfully beat and assault her, by reason whereof she was injured about her hand and was greatly bruised, etc., to her damage of $2,000, and she asked judgment against the defendant therefor. There is no averment in the complaint that she was actually put off the car or that she got off. The complaint is clearly one for assault and battery by the defendant’s agent and for nothing more.
This charge and refusal was error. It is a familiar rule that a plaintiff may not plead one cause of action and recover upon another. (Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420; Reed v. McConnell, 133 id. 425, 434.)
It is true that evidence tending to show that the plaintiff was not allowed to ride on the car and carry the cage with her came into the case without objection, but it came in as part of the transaction between herself and the conductor ; it could not properly have been excluded, and all of it was properly in" as tending to show a justification for a forcible exclusion, from the car had the plaintiff given any evidence to show that she was forcibly expelled. It was but incidental to the cause of action upon which alone she sought to recover, viz., an assault and battery upon her; and upon her resting her case the defendant moved for a nonsuit upon the ground that she had utterly failed to prove the assault. Thus the objection was squarely taken, and it seems clear error to permit her to recover for a reason neither claimed nor suggested in her complaint.
Moreover, it further appears that the cage which she; was carrying was two feet square and from two feet to two and one-half feet
A rule of the company forbids the carrying of “ cumbersome ” packages, and the court instructed the jury, without objection by the plaintiff’s attorney, that if such cage was a “ cumbersome package ” within the meaning of that rule the plaintiff could not recover. The jury must be deemed, therefore, to have found that it was not. But the question arises whether that finding is supported by the evidence. As stated above, we must assume from the evidence that the package was some two and one-half feet high and two feet square. Can we sustain the verdict of a jury that such a sized package is not a cumbersome one ? If we do, we practically hold that every passenger has the right to carry such a package in the car. This decision will be authority to all travelers that such rule of the company does not exclude a package of that size. The rule is a reasonable one (Dowd v. Albany Railway, 47 App. Div. 202), and its purpose is evident. A package that would reduce the carrying capacity of a car to one-half if the package was deposited on the seat by the side of the carrier, would evidently amount to 'an unmitigated nuisance if each seat was occupied by a party attempting to carry such a package on his or her lap. Therefore, in my judgment, such a package is a “ cumbersome ” one within the purpose and intent of that rule. While I would not hold that, as a matter of law, the decision of the conductor should be controlling upon that subject, yet it should have great weight, and his action in determining whether or not the rule is being violated in each particular case should not be reversed by a jury unless it is a case of willful or unreasonable judgment on his part. In the case before us I am of the opinion that the determination of the conductor should have controlled, and that he was justified in enforcing the rule against the plaintiff and requiring her to leave the car if . she insisted on carrying the cage. On her own evidence she does not claim that he used any force whatever against her. He but told her that she was violating the rule and must, therefore, get off, and she thereupon got off.
All concurred; Smith, J., in result; Chester, J., concurred on the ground that plaintiff has not proved the cause of action alleged in complaint.
Judgment and orders reversed and new trial granted, with costs to appellant to abide event.