
    Mary Hanley, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    Second Department,
    December 8, 1905.
    Assault and battery—ejectment of plaintiff from car —- error in submitting question as to whether plaintiff had violated defendant’s rule as to transfers.
    When a passenger alighting at the intersection of street railway lines receives a transfer ticket reading, “ good only * * * at intersection of issuing line,” and it is shown that the passenger walked a block (600 or 800 feet) down the intersecting line before boarding the car on which she claims to have been assaulted by the conductor in an attempt to eject her during a dispute as to her right to ride on said transfer ticket, it is error for the court to submit to the jury the question as to whether the plaintiff had substantially violated the reasonable rule of the defendant that the transfer was only good at such intersection. The evidence being undisputed, the rule was violated as a matter of law.
    Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Kings on the 21st day of June, 1904, upon the verdict ■ of a jury for $600, and also "from an order entered in said clerk’s office on the 18th day of July, 19(34, denying the defendant’s motion for a new trial made upon th(e minutes. . • '
    
      I. R. Oeland [George D. Yeomans with him. on the brief], for the appellant. • '
    
      Melville J. France [Abram H. Dailey with Jhim on the brief, forjhe respondent. ■
   Jenks, J,:

The plaintiff conlplained that the defendant’s conductor assaulted her when a passenger, and attempted to eject her from a car of its electric street surfaCe railroad.' The defendant made general denial, and appeals from a' judgment, of $600 entered on the verdict of the jury. .

The plaintiff and her companion were passengers in. a car of the Hostrand avenue line. They paid their fares and received transfer tickets. ■ The tickets read : Good only for the-day printed hereon, witlrin the "time limit punched and at. intersection of issuing line.” The two women left the Hostrand avenue line at its intersection with Fulton street, intending to take a car at that point on the ■Fulton street line. They waited between five and ten minutes, then left the place of intersection, walked a - block along Fulton street 600 or 800 feet long, and boarded a car on the Fulton street line at Fulton street and Bedford avenue. They offered the transfer tickets to the conductor for their fares, a^ dispute arose, and it is testified that the assault and the attempted ejection followed. Although a conductor may be justified in demanding a cash fare in a given case, with the alternative to ■ the passenger of leaving the car, and may enforce, the requirement, "it does not always follow that violence used toward the passengér upon his mere.refusal to pay the fare was justified under the circumstances.. It may have been necessary, it may have been excessive, it may have been premature. Hence, I do not determine whether on this- case as now presented there is a cause of action, for the reason that irrespective of that question an error appears" which requires a new-trial. The learned court held that the rule quoted was reasonable, but.submitted to. the jury whether there was a substantial violation thereof in this case. This was excepted to by the defendant. The court also refused under exception to charge the jury that “under the facts in this case, it being undisputed that this plaintiff boarded the car at a place other than the intersection of Fulton street and FTostrand avenue, the defendant company, through its conductor, had the right to refuse to accept said transfer as payment of the plaintiff’s fare.” The reasonableness of the rule, as the court rightly held, was a question of law. (Hibbard v. N. Y. & Erie R. R. Co., 15 N. Y. 455 ; Vedder v. Fellows, 20 id. 126 ; Avery v. N. Y. C. & H. R. R. R. Co., 121 id. 31.) The error was in the submission of the question of substantial violation in the face of the undisputed fact that the pláintiff/boarded the car at a point substantially distant from the intersection. The court seemed to think that because the plaintiff testified that she first waited at the intersection between five and ten minutes for a car, when none came, that she was just convalescent, and the day was windy and chilly, the jury might find that she did not violate ■ the rule because she walked away on the street of intersection and boarded a car at the distance of a block therefrom. If this theory be correct, then the rule could be practically nullified. For if the passenger, for personal and peculiar reasons, could violate the rule and yet resist the enforcement to the point of force, and recover damages for such enforcement if his reasons seemed well founded to a jury, the defendant would not dare to enforce the rule at such peril. If the wind blew sharper at the intersection than elsewhere; if the passenger could gain a few moments time by walking on to meet the car ; if he objected to loungers or other wayfarers at the intersection ; if he was too lightly clad to stand at gaze — these or other circumstances might seem to the passenger, and possibly to the jury, good excuse for setting the rule at naught. These may be extreme examples, but it cannot be said how far the peculiarities or idiosyncracies of the individual might go. Certainly the conductor could not well receive dispensing power. He could not conduct his car, and also take the evidence of any passenger who boarded it at places distant from the point of intersection to determine whether he should or should not enforce the rule in each specific instance of its actual violation. I think that the case is controlled by the judgments in Montgomery v. Buffalo Railway Co. (165 N. Y. 139) and Monnier v. N. Y. C. & H. R. R. R. Co. (175 id. 281). The harm • ■from the error was radical, because the court in effect instructed the jury that it might find that the plaintiff had not violated the rule. If the jury found compliance and credited the story of the plaintiff, it could then regard the act of the conductor as an unprovoked and unjustifiable assault. If on the other hand the question of substantial compliance had not been submitted,, and' the jury had been instructed that the rule was reasonable, as the court decided, and that the defendant had a right to enforce it, even to ejection finally by force and such force as was necessary, wé cannot say that if would. have arrived at the verdict rendered, or in any event at the amount thereof.;

The judgment and order must be reversed and a new trial granted. ' <'

Bartlett, Woodward, High and Miller, JJ., concurred.

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