
    Samuel Morris, Resp’t, v. The Atlantic Ave. Railroad Company of Brooklyn, App’lt.
    
    
      (Court of Appeals, Second Division,
    
    
      Filed November 26, 1889.)
    
    1. Street Railroads—Extra rare ror bundles.
    Plaintiff was ejected from one of defendant’s street cars for refusing to obey the.conductor who had requested him to go on the platform or leave the car because of his having a large package, which required the payment of additional fare under a rule of the company. Held, that the question as to whether the package was of a size embraced within the meaning of the regulation of the company, was for the jury to determine.
    53. Same—Evidence—Number or passengers in car.
    While evidence as to the number of passengers in the car, had no bearing on the question of the right of plaintiff to ride without paying additional fare, it was admissible as being descriptive of the situation.
    3. Same.
    On the cross-examination of the conductor and driver, they were asked whether they made certain statements before the police commissioners in proceedings brought against the policeman who aided in ejecting plaintiff, and after they had answered, evidence was given that they testified otherwise there. Held, that the evidence that the conductor made no statement before the commissioner to the effect that plaintiff was asked and refused to pay the extra fare may have been prejudicial to defendant, and was, therefore, error.
    Appeal from judgment of the general term of the city court of Brooklyn, affirming judgment entered on a verdict in favor of the plaintiff.
    In March, 1886, the plaintiff took passage on one of the defendant’s cars, and after having paid the usual fare of five cents, and after riding some distance, was forcibly ejected from the car by the conductor and driver, by which the plaintiff alleged that he sustained a personal injury. The alleged reason for putting him off is that the plaintiff had packages so large as to require the payment of additional fare pursuant to a rule or regulation of the company, of which thé following is a copy: “ Trunks, baskets, bundles, conductors will charge as follows: Trunks twenty cents, baskets or boxes of fruit or vegetables ten cents each; for each valise, basket or package too large to be carried on the lap of the passenger without incommoding others, five or ten cents, according to size.” The packages consisted of three picture frames done up in two parcels, and were about two feet in length and nearly twenty inches in width. The plaintiff "when requested refused to go on to the platform of the car or to leave it.
    
      W. W. McFarland, for app’lt; F. L. Backus, for resp’t.
    
      
       Reversing 5 N. Y. State Rep., 874.
    
   Bradley, J.

The action was brought for an alleged assault and battery, committed upon the plaintiff by the servants of the defendant, in forcibly removing him from one of its cars on which he had taken passage. The defendant relied for justification of the ejection of the plaintiff from the car, upon his alleged refusal to pay the additional fare required by the regulations of the company when a passenger takes into its car a package too large to be carried on the lap of the passenger without incommoding others ; and it is claimed that the plaintiff had a package which brought him within the operation of that regulation; and that he refused to pay such additional fare as well as to leave the car on request, before force was applied to remove him. It may be assumed that the regulation referred to was a reasonable one, and, therefore, if the facts were as claimed on the part of the defendant, the use of the requisite force for the removal of the plaintiff from the car was justified. Such was the view of the trial court. But there was a controversy, in respect to facts, presented by conflicting evidence.

It appears that the plaintiff paid to the conductor, and the latter received from him, the usual passenger fare of five cents. The testimony of the plaintiff was that he was not asked to pay any additional fare, but all that was required of him by the conductor, before he was taken out of the car, was that he either go out on to the platform or leave the car. The questions were presented whether the package came within the rule which entitled the defendant to the additional fare, and if it did, was the plaintiff requested or did he refuse to pay such fare before his ejection from the car. These were by the trial court treated as questions of fact and submitted to the jury as such. The negative of either fact would entitle the plaintiff to recover. The latter was clearly a question of fact upon the evidence. In respect to the other propositions, the court was requested to hold as matter of law and charge the jury that the bundles were too large to be carried on the lap of the passenger without incommoding -others. Exception was taken to the refusal to so charge. And the court was further requested, and declined, to charge that the question as to whether the packages were too large was not a matter to be decided by the plaintiff, but is to be decided by the defendant, and if its agents in the exercise of fair judgment, and in good faith, determine that a package is too large and requires pay, the passenger must comply with a request to pay or leave the car,’' and exception was taken to such refusal.

For the successful operation of the road and for the acommodation and comfort of its passengers, certain regulations are evidently essential. The one in question was reasonable, but that portion of it relating to the present case is indefinite in so far that it does not in terms furnish all the information necessary to its-execution, which is dependent upon the fact that the package is too-large to be carried in the lap of the passenger without incommoding others. A package may be such and so large as to require the conclusion that it is within the rule which entitles the company to demand the increased' fare, and in such case the court might, as matter of law, so determine. When it does not necessarily so appear, the question arising in that respect becomes one-of fact to be otherwise disposed of. In the present case the court could not hold that the package was within the meaning of those referred to in the regulation. The right of the plaintiff was dependent upon the application of the regulation to his package,, and not upon the judgment of the conductor. The ability of the latter to construe the regulation, and to determine whether the package justified the demand of more fare, may have been greater than that of the plaintiff, but their right to exercise their judgments in that respect, subject to the consequences, was not unequal. The question was for the jury to determine whether the extent of the plaintiff’s package was such as to be embraced within the meaning of the regulation. The question is one of the weight of •evidence, which was solely for the consideration of the court below. If the execution of this portion of the regulation is liable to be attended with embarassment, it is because its terms, descriptive of the packages referred to, are not sufficiently definite to furnish ■a certain guide to the company’s servants who are required to execute it.

There was no error in the reception of evidence of the number of passengers in the car when the plaintiff entered. While that fact had no bearing upon the question of the right of the plaintiff to ride without paying additional fare, it was descriptive of the situation. If all the seats had been full, there would have been some demonstration of the fact whether any of the others were incommoded by the package, as bearing upon the question on the trial in that respect. And it was not improper to show the number present who saw the transaction, which resulted in the removal of the plaintiff from the car. The court distinctly charged the jury that the number of passengers in the car, or the opportunity to carry a package because the number was small, had no importance on the question of the right of the defendant to require of the plaintiff the observance of the regulation, and, on Ms refusal to do so, to expel him from the car if his package was such as to justify it. After this occurrence, and upon the complaint of the plaintiff, the matter of policeman Campbell, who bad been called upon by the conductor to assist in the removal of the plaintiff from the car, was brought to a hearing on that account before the police commissioner of Brooklyn, and the conductor and driver there testified as witnesses. On their cross-examination, on the trial of the present case, they were by the plaintiff’s counsel asked whether they made certain statements on the hearing before the commissioner, and, after their answers, evidence was given that they testified otherwise there. This evidence was not competent on the merits as against the defendant, but so far as the facts embraced within those statements were material to the issue on trial the contradictory evidence was competent solely for the purpose of affecting the credibility of the witnesses. It must be assumed that it was received for that purpose only, and, therefore, competent. It is for such purpose permitted in that manner, to prove that a witness has made prior statements contradictory to those wMch he states on the trial as bearing upon Ms credibility or reliability as a witness. The plaintiff not only did this, but went further. The conductor, on his cross-examination, was asked whether he testified before the commissioner that he told the plaintiff, on the occasion in question, that he could not ride inside the car because it was against the rules, unless he paid, referring to the additional fare on account of the package. The witness answered in the affirmative.

Then by way of contradiction another witness who was present and took the notes of evidence on that hearing, was asked, did he testify that he demanded that the plaintiff should pay for the frames, and that he refused to pay? To which objection was-made on the ground that the question was not asked. the witness, that it was immaterial and collateral, and that the issue on the hearing was different from the one in this action. The objection being overruled and exception taken, the witness answered, to the effect that the conductor did not so testify, or testify to anything* about paying for the package. This evidence was not contradictory of anything which tire conductor stated on the hearing before the commissioner, and therefore did not come within the rule which permits evidence of that character to impeach the credit of a witness. The question, to which the objection was taken, was not whether the conductoi had made any particular statement prior to the trial in conflict with that made by him on this trial, or whether he had made one which he on cross-examination denied having made, but whether on the former hearing he had stated what on this trial he said he had there stated. The fact whether he had or not so testified on that hearing was not relevant to the issue in this action, although the fact whether he did demand payment was a material one upon such issue. The answer in the affirmative, by the conductor, of the question put to-him by the plaintiff’s counsel, closed the inquiry in respect to the statement embraced in it. There was nothing to legitimately contradict. The witness by such answer testified that he had upon such hearing made the statement to which his attention was called by the question. And inasmuch as the fact whether or not he had so' testified was collateral and irrelevant in this action, the plaintiff was concluded in his inquiry by the answer given by the witness. The evidence was, therefore, incompetent. Commonwealth v. Hawkins, 3 Gray, 463; Height v. People, 50 N. Y., 392 ; Hart v. H. R. R. Co., 84 id, 57.

The question whether the plaintiff was by the conductor asked and refused to pay the additional fare before he was put off the car, was in dispute upon the conflicting evidence. And it cannot be seen that the evidence that the conductor made no statement to that effect on his examination as a witness before the police commissioner shortly after the occurrence may not have been prejudicial to the defendant upon that question of fact. For that reason, and for that error, the judgment should be reversed and a new trial granted, costs to abide the event

All concur, except Haight, J., not sitting.  