
    Vincenzo Zeccardi, Appellant, v. The Yonkers Railroad Company, Respondent.
    Second Department,
    June 15, 1906.
    Assault and battery—when character as passenger not. lost by leaving car to stop assault on another passenger by defendant’s servants.
    A passenger may lawfully interfere tó prevent an assault made upon another passenger by the servants of' a railway company, and by leaving the car for that purpose he does not lose his character of a passenger. If it be shown that on going to the aid of his fellow-passenger he himself was assaulted, it is error to dismiss the complaint on the ground that he had ceased to be a passenger by leaving the car.
    
      Xppeal by the plaintiff, Vincenzo Zeccardi, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 7th day of January, 1905, upon the dismissal of the complaint by direction of the court after a trial at the Westchester Trial Term.
    
      F. X. Donoghue, for the appellant.
    
      Anthony J. Ernest [Bayard H. Ames and Henry A. Robinson with him on the brief], for the respondent.
   Per Curiam :

There was evidence from which the jury could have found that -the conductor committed an unjustifiable battery on the plaintiff’s companion on the car, and then dragged him off the car with the aid of the motorman, and continued the battery on him on the ground by the car, and that on the plaintiff getting off the car and going toward them in order to separate them, the motorman committed a-battery on him to prevent him. This much was obtained by the plaintiff’s counsel from, his two witnesses with much difficulty on account of the interferences of' the trial judge, who dismissed the case of his own motion without allowing him to call any more witnesses. The dismissal was error on the evidence, to say nothing of the summary closing of the case. The' fact that the battery was committed on the plaintiff after he got off the car by no means prevents him from recovering against the company. The plaintiff had not as matter of law ceased to be a passenger. Any passenger may lawfully interpose to prevent another passenger from being unlawfully battered by the conductor either on the car or after the conductor has dragged him off the car. By stepping off the car to' stop the battery he no more ceases to be a' passenger than if he stepped off to pick up his hat or take a drink of water. The very least that ‘can be said on the plaintiff’s side is that it was for the jury to say whether the motorman was not in the company’s service in respect of him in committing the battery on him.

I think the judgment should be reversed.

Hirschberg, P. J., Woodward, Jenks, Gaynor and Rich, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  