
    Hyland G. Reed, Respondent, v. New York and Queens County Railway Company, Appellant.
    Second Department,
    January 11, 1907.
    Assault and battery by conductor — facts showing plaintiff was aggressor — servant of carrier may protect himself.
    The servant of a common carrier may protect himself against assault by a passenger and by doing so is not guilty of misconduct for which the master is liable.
    When it appears that after an altercation, as to whether the plaintiff had paid his fare, on alighting from the car, lie used abusive language to the conductor, seized him by the leg and pulled him off the car, he is not entitled to recover for injuries received in the affray which followed.
    Hirschberg, P, J., dissented.
    Appeal by the defendant, the New York and Queens County Railway Company, from a judgment of the County Court of Queens county, in favor of the plaintiff, entered in the office of the clerk of the county of Queens on the 27th'day of December, 1905, upon the verdict of a jury for $150, and also from an order entered in said clerk’s office on the 8th day of. January, 1906, denying the defendant’s motion for a hew trial made upon the minutes.
    
      I. R. Oeland [Van Vechten Veeder and Nathaniel S. Corwin with him on the brief], for the appellant.
    
      George F. Hickey [William E. Stewart with him on the brief], for the respondent.
   Jenks, J.:

In this case' a passenger has recovered damages for an assault by the defendant’s conductor. During the carriage, an altercation arose. over a demand for fare which the passenger said he had paid. The altercation continued both when the demand was repeated and when the passenger made a demand for a transfer ticket which was refused on the ground of the non-payment of fare. When the car reached the - transfer point, the passenger alighted and the altercation resulted in the alleged assault. As witness to the occurrence, the plaintiff called one passenger and the defendant called the conductor and two passengers. All save the plaintiff agree that after the passenger had alighted he used abusive or threatening words to the conductor, and attempted to take hold of his leg or legs when the conductor' had begun to start or had started the car on its way. All save the plaintiff agree that he finally succeeded in catching the conductor by his leg or legs, and three testify that he thus pulled the conductor off his car to the ground. Then blows were interchanged and the combatants fell to the ground. The plaintiff himself first testifies that when he was on the ground and the conductor was on the car, he grabbed at the conductor’s foot, and at that time the foot was raised to kick, but even the plaintiff further on in his evidence testifies : “ Q. When he startéd to start the car —-? A. I made a grab, and he raised his foot, and I grabbed for the foot, and the first thing I knew I got a punch in my face.” The very great preponderance of the evidence is that the plaintiff after leaving the car not only used abusive or threatening language but was the aggressor in physical violence at a time when the conductor was about his business. There was an allegation that the assault was committed by some instrument, but none testified to. this but the plaintiff, and hej when pressed by the court, admitted that he drew that as an inference from the wound received in the fight. But his physician finally testifies ■ that such a wound might be produced by a clenched fist. And, moreover, there is evidence that the plaintiff was cut by falling upon the rails during the fight-. In fine, the clear preponderance of proof indicates that the plaintiff ■was the aggressor, and that as the result of his assault a scuffle or a -fight ensued in which blows were exchanged. Both the combatants bore the marks'of the battle and neither was seriously injured,, In New Orleans & N. E. R. R. Co. v. Jopes (142 U. S. 18, 25) the court, per Brewer, J., after discussing the justifiable use of force in the protection of passengers, say: “ But if an employé may use force to protect other passengers, so he may to protect himself. He has not forfeited his right of self-defense by assuming service with a common carrier; nor does the common carrier engage aught against the exercise of that right by his employé. There is no misconduct when a conductor uses force and does injury simply in self-defense; and the rules which determine what is self-defense are of universal application, and are not affected by the character of the employment in which the party is engaged.” (See the rule laid down in Weber v. Brooklyn, Q. C. & S. R. R. Co., 47 App. Div. 306, 309 et seq.) I am not satisfied with the judgment, but think that there should be a new trial. (McDonald v. Metropolitan St. R. Co., 167 N. Y. 66.)

A new trial is ordered, with costs to abide the event.

Woodward, Eioh and .Miller,' J.J., concurred; Hirschberg, P. J., dissented.

Judgment and order of the County Court of Queens county reversed and new trial ordered, costs to abide the event.  