
    Clemens Koch, Appellant, v. Brooklyn Heights Railroad Company, Respondent.
    
      Railroad—duty of a street railroad conductor to exercise the utmost xigilance to protect passengers from insult and assault.
    
    A common carrier of passengers must exercise the utmost vigilance to maintain order and to guard its passengers from violence which reasonably might be anticipated or naturally might be expected under all the circumstances and in view of the number and character of the passengers.
    In an action brought against a street railroad company it appeared that, while the plaintiff and a companion were passengers upon one of the defendant’s cars, some of their fellow-passengers, without any provocation, began to insult and to revile them;'to take hold of the plaintiff’s hat and to hustle him; that, after the plaintiff and his companion had asked their tormentors to desist, without success, his companion asked the conductor to interfere, and that the conductor answered, “ I can’t do nothing, if I told them to stop they wouldn’t do it; ” that the conductor at first did nothing, but afterwards went into the car, tóld the offenders to “ stop that fooling ” and then went back; that the offenders, who had only laughed at the conductor, then resumed their indignities and finally threw the plaintiff to the floor and walked over him.
    
      Held, that it was improper for the court to dismiss the complaint;
    That it could not be held, as a matter of law, that the defendant had exercised the utmost vigilance to protect the plaintiff from abuse.
    Appeal by the plaintiff, Clemens Koch, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the cleric of the county of Kings on the 10th day of March, 1902, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      Abram H. Dailey, for the appellant.
    
      I. R. 0eland and George D. Yeomans, for the respondent.
   Jenks, J.:

A common carrier of passengers must exercise the utmost vigilance to maintain order and to guard its passengers from violence which reasonably might be anticipated or naturally might be expected under all the circumstances and in view of the number and character of the passengers. This is the rule of Putnam v. Broadway & Seventh Ave. R. R. Co. (55 N. Y. 108, citing Flint v. Norwich & N. Y. Transportation Co., 34 Conn. 554) and of Carpenter v. Boston & Albany R. R. Co. (97 N. Y. 494, 497).

The plaintiff complained that while a passenger on a train of the defendant he was assaulted by other passengers, and ha.now appeals from a judgment entered upon a dismissal of his complaint at. the close of his evidence. I think that he had made out a case which did not warrant dismissal. Ilis evidence, if credible, established the following facts : The plaintiff and a companion became passengers of the defendant. When they began to talk in the German tongue other passengers, without any provocation, began to insult and to revile them, to take hold of plaintiff’s hat and to hustle him. The- plaintiff and his companion asked the offenders for peace but without success. Thereupon the companion went out to the platform, which was separated from the interior of the car by a glass door, and asked the conductor to interfere. The conductor answered, “I can’t do nothing, if I told them to stop they wouldn’t do it.” And at first he did nothing, but afterwards he went into the car, told the offenders to “ stop that fooling,” and then went back. The offenders, who had only laughed at him, then resumed their boisterous conduct, their insults and finally their horseplay so that just before, they reached a station they threw the hat of the plaintiff to the floor, struck him, and when he rose to regain his hat threw him to the floor and then walked over him out of the car to the station. This was no sudden indignity immediately followed by the escape of the offenders, but continued conduct of profanity, abuse and horseplay, which began when the plaintiff entered the car, continued for some time and culminated in assault and injury. The conductor had notice at the beginning of this misconduct and was requested to interfere. At first he did nothing, on the ground that if he commanded the offenders to cease they would not. And all that he finally did was that which he said would, accomplish nothing. Moreover, when he did tell the offenders to stop, the answer was but laughter, which indicated contempt or derision, and was no assurance of decent behavior thenceforth. And thereupon the conductor washed his hands of the affair and went away. To my mind this does not, as matter of law, acquit the defendant of its obligation to the plaintiff. And I find no proof that warrants the conclusion that the conductor was necessarily called away by the discharge of his official duties, so that his mere perfunctory request, which he foretold Would be futile, could as a matter of law be held the exercise, of the utmost vigilance to protect the plaintiff from such flagrant abuse.

The judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

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