
    Isadore Schwartzman, an Infant, by Joseph Schwartzman, his Guardian ad Litem, Appellant, v. Brooklyn Heights Railroad Company, Respondent.
    
      Action for damages resulting from, the plaintiff being thrown by the conductor from a street car — the fact that the act was’ willfully and maliciously done held not to be a defense.
    
    In an action "brought to recover damages for personal injuries sustained, by the ■ plaintiff in consequence of his having been thrown from one of the defendant’s street cars, on which he was a passenger, by the conductor thereof, the court . charged that, if the act of the conductor was done, willfully and maliciously and not in the management and "running of the car, the defendant would not be liable.
    
      Held, that as it was conceded that the conductor at the time in question was engaged in the actual running and management of the car, the charge was misleading and that a new trial should be ordered.
    Woodward and Jerks, JJ., dissented.
    Appeal by the plaintiff, Isadore Schwartzman, an infant, by Joseph Schwartzman, his guardian ad litem, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Kings on the 15tli. day of December, 1902, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 12th day of December, 1902, denying the plaintiff’s motion for a new trial made upon the minutes. .
    
      William 0. Miles, for the appellant.
    
      I. It. Oeland and George D. Yeomans, for the respondent.
   Hirschberg, J.:

The disputed question of fact upon the trial was whether or not the conductor threw the plaintiff off the car. The plaintiff, then fourteen years of age, was conoededly a passenger on one of the defendant’s cars on the 14th day of July, 1901, and having arrived at a point where he was entitled to a transfer, demanded of the conductor that one be given him. The- conductor had used all the transfer tickets with which he had been provided, and was, of course, unable to comply with the request. There was evidence which would justify a finding by the jury either that the conductor then took hold of the plaintiff and threw him off the car, or that the plaintiff voluntarily jumped off, and hut for an error in the charge the judgment should be affirmed.

The learned court, however, charged the jury in effect, that if the conductor did take hold of the plaintiff and threw him from the car, but the act was done willfully and maliciously, the defendant would not be liable. It is true that this portion of the charge was coupled with the suggestion that in order to relieve the defendant from liability it must appear that the conductor’s willful- and malicious act was not done in the management and running of the car, but there was no fact or circumstance in the case tending to indicate that there was any time when the conductor was not engaged in the running and management of the car, and the jury must have understood the charge as applicable to the facts of the case and not as a mere abstract proposition of law. The effect of the charge was to instruct the jury that they might find the conductor’s act to have been willful, but personal in the sense of being outside of the field of his duty, the precise language being “ if he did it maliciously and outside of the running and management of - the car of the defendant then the verdict must be for the defendant.” It needs no citation of authority to show that this is not a correct statement of the law as applicable to the conceded fact that the conductor was engaged at the time in the actual running and management of the car. The true rule is frankly .admitted by the learned counsel for the respondent in their brief as follows: “ This we understand to be the correct rule of law, if the conductor made the assault while in the management of the ear, whether maliciously done or negligently done, the defendant would be responsible.” The charge to the contrary could have no possible effect but to mislead the jury into the belief that if they found that the act of the conductor was a wanton one, it could nevertheless in some way be so dissociated from the discharge of his duty as a servant of the defendant as to relieve the latter from its consequences; and as nothing whatever in the case even remotely suggests the possibility of such dissociation, the instruction constituted reversible error.

The judgment and order should be reversed.

Bartlett and Hooker, JJ., concurred; Woodward and Jenks, JJ., dissented.

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