101 N.Y.S. 534 | N.Y. App. Term. | 1906
This is an appeal by plaintiff from a judgment for five dollars, rendered in his favor by the court without a jury and from an order denying his motion for a new trial. The main ground of the motion for a new trial was the insufficiency of the damages awarded. The action was brought for breach of contract of carriage. The plaintiff testified that, on April 26, 1906, he boarded defendant’s car at the comer of Clinton and Stanton streets. The car went north on Avenue A. as far as Fourteenth street and then proceeded west through Fourteenth street. Plaintiff paid his fare and received a.transfer. At Fourth avenue the conductor demanded fare from the plaintiff. The plaintiff told the conductor that he had already paid one fare and refused to pay again. He also said that he would show his transfer. The conductor thereupon applied vile names to the plaintiff and, as the plaintiff wgs trying to get his transfer from his pocket to exhibit it, the conductor got hold of the plaintiff by the coat and pulled him from the center of the car to the front, punched him, and, while the plaintiff was holding on to the front of the car, he punched him in the face. The car was full of people at the time. The plaintiff was corroborated in the main by two witnesses. The defendant offered no testimony. We think the damages awarded in this case were altogether insufficient. If the plaintiff’s story is true, he was grossly assaulted, wantonly insulted, and wrongfully ejected from the defendant’s car by its servant. The court below believed his story. It was not contradicted. On this evidence the defendant clearly committed a breach of its contract of carriage for which the plaintiff is entitled to recover substantial damage, even though he proved no loss of wages, or of time, or physical
The judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
Gilderrleeve and Fitzgerald, JJ., concur.
Judgment reversed, new trial granted with costs to appel lánt to abide event.