
    Mary A. Ray, Respondent, v. United Traction Company, Appellant.
    
      Complaint that a conductor on the defendant’s street car “ wrongfully and unlawfully beat and assaulted” the plaintiff—it will not sustain a cause of action for the unlawful removal of the plaintiff from the car —what is a “cumbersome package ” — decision of a street car conductor.
    
    The complaint in an action charged that a conductor on one of the defendant’s . street railway cars unlawfully threatened to eject the plaintiff therefrom, and did wrongfully and unlawfully beat and assault her, by reason whereof she was injured about her hand and was greatly bruised, etc., to her damage of $2,000, and she asked judgment against the defendant therefor. There was no averment in the complaint that she was actually put off the car or that she got off.
    
      Held, that the action was simply for assault and battery.
    
      Upon the trial the court charged the jury that although no assault and' battery had been committed upon the plaintiff, yet that “if you find this plaintiff was illegally ejected or compelled to get off of this car, then she is entitled to such damages as you feel the evidence warrants.”
    
      Held, that the charge was erroneous, as a plaintiff was not entitled to plead "one cause of action and recover upon another. "
    Semble, that a bird cage two feet square and from two feet to two and a half feet high, is, as a matter of law, cumbersome, within the meaning of a rule of a street car company forbidding the carrying of “ cumbersome” packages upon its cars.
    
      Semble, that while the decision of the street car conductor as to what constitutes a cumbersome package is not controlling, great weight should be given thereto, and that his decision should not be reversed by a jury unless willful or unreasonable. ...
    Appeal by the defendant, the United Traction Company; from'a judgment of the County Court" of Albany "county in favor of the plaintiff, entered in the office of the clerk of the county of Albany on the 7th day of December, 1901, upon the verdict of a jury for $500, which amount was thereafter reduced to $200 upon the stipulation of the plaintiff pursuant to an order entered in said clerk’s office on the 7th day of December, 1901; also from an order entered in said clerk’s office on- the 16th day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes, and also from the said order pursuant to which the verdict was reduced.
    
      Albert Hessberg, for the appellant.
    
      Walter H. Wertime and Mark Cohn, for the respondent.
   Parker, P. J.:

The complaint in this action charges that a conductor on one of the defendant’s cars .unlawfully threatened to eject the plaintiff therefrom, and did wrongfully and unlawfully beat and assault her, by reason whereof she was injured about her hand and was greatly bruised, etc., to her damage of $2,000, and she asked judgment against the defendant therefor. There is no averment in the complaint that she was actually put off the car or that she got off. The complaint is clearly one for assault and battery by the defendant’s agent and for nothing more.

The court charged the jury that there was no assault and battery by the conductor upon the plaintiff, and in that it was fully justified by the evidence. The plaintiff’s own statement utterly failed to show one. She did testify, however, that because she had a steel cage in her hand— one purchased for and large enough to keep a parrot in — the conductor refused to take her fare and told her that she must get off the car, that it was not permitted to carry such articles on the car; that upon his insisting that she get off she did so and was greatly humiliated and suffered great mental agony, etc., thereby. The court charged the jury to the effect that, although there was no assault and battery committed upon her, yet that “ if you find this plaintiff was illegally ejected or compelled to get off of this car, then she is entitled to such damages as you feel the evidence warrants.” This charge was duly excepted to by the defendant’s attorney, and in this connection he asked the court to charge that this is an action for assault. Unless the jury find the plain-, tiff was assaulted by the company, or agents, there can be no recovery.” The court refused so to charge and the defendant excepted.

This charge and refusal was error. It is a familiar rule that a plaintiff may not plead one cause of action and recover upon another. (Southwick v. First Nat. Bank of Memphis, 84 N. Y. 420; Reed v. McConnell, 133 id. 425, 434.)

It is true that evidence tending to show that the plaintiff was not allowed to ride on the car and carry the cage with her came into the case without objection, but it came in as part of the transaction between herself and the conductor ; it could not properly have been excluded, and all of it was properly in" as tending to show a justification for a forcible exclusion, from the car had the plaintiff given any evidence to show that she was forcibly expelled. It was but incidental to the cause of action upon which alone she sought to recover, viz., an assault and battery upon her; and upon her resting her case the defendant moved for a nonsuit upon the ground that she had utterly failed to prove the assault. Thus the objection was squarely taken, and it seems clear error to permit her to recover for a reason neither claimed nor suggested in her complaint.

Moreover, it further appears that the cage which she; was carrying was two feet square and from two feet to two and one-half feet high. This is the size which the conductor and the inspector give it, and such evidence is not substantially contradicted by the plaintiff. She did not attempt to give any measurements, except she said it was as wide as her lap and upon the seat of the car would occupy the space of one passenger.

A rule of the company forbids the carrying of cumbersome ” packages, and the court instructed the jury, without objection by the plaintiff’s attorney, that if such cage was a “ cumbersome package ” within the meaning of that rule the plaintiff could not recover. The jury must be deemed, therefore, to have found that it was not. But the question arises whether that finding is supported by the evidence. As stated above, we must assume from the evidence that the package was some two and one-half feet high and two feet square. Can we sustain the verdict of a jury that such a sized package is not a cumbersome one ? If we do, we practically hold that every passenger has the right to carry such a package in the car. This decision will be authority to all travelers that such rule of the company does not exclude a package of that size. The rule is a reasonable one (Dowd v. Albany Railway, 47 App. Div. 202), and its purpose is evident. A package that would reduce the carrying capacity of a car to one-half if the package was deposited on the seat by the side of the carrier, would evidently amount to 'an unmitigated nuisance if each seat was occupied by a party attempting to carry such a package on his or her lap. Therefore, in my judgment, such a package is a “ cumbersome ” one within the purpose and intent of that rule. While I would not hold that, as a matter of law, the decision of the conductor should be controlling upon that subject, yet it should have great weight, and his action in determining whether or not the rule is being violated in each particular case should not be reversed by a jury unless it is a case of willful or unreasonable judgment on his part. In the case before us I am of the opinion that the determination of the conductor should have controlled, and that he was justified in enforcing the rule against the plaintiff and requiring her to leave the car if . she insisted on carrying the cage. On her own evidence she does not claim that he used any force whatever against her. He but told her that she was violating the rule and must, therefore, get off, and she thereupon got off.

The judgment and orders should be reversed on the law and the facts, and a new trial granted, costs to the appellant to abide the event.

All concurred; Smith, J., in result; Chester, J., concurred on the ground that plaintiff has not proved the cause of action alleged in complaint.

Judgment and orders reversed and new trial granted, with costs to appellant to abide event.  