
    Rosa Taranto, Appellant, v. North German Lloyd Steamship Company, Respondent.
    Second Department,
    October 9, 1908.
    Carrier—breach, of contract of safe carriage—passenger shot by fellow-passenger — trial — acquiescence in charge eliminating issue of ’ assault.
    Where in an action to recover against a steamship company for á breach of its' contract for safe carriage in that the plaintiff while a passenger was struck by a bullet alleged to have been fired by a fellow-passenger in self-defense when assaulted by an interpreter employed by the company, the court has charged that the Statute of Limitations has run on any action founded upon the assault, and that liability on' the part of the defendant can only be predicated upon its negligence in failing to prevent passengers from carrying firearms, the plaintiff by excepting to the charge on the ground that the jury was prevented from considering the assault of the interpreter as the proximate cause, and by requesting a charge that if such assault were committed it was the proximate cause of the injury, and the defendant was liable, does not challenge the charge that the Statute of Limitations had run against an action for assault, but acquiesces in the theory that the action is for damages for breach of contract of carriage.
    Hence, as the plaintiff went to the jury on the latter proposition without questioning the charge that the statute had run against any other form of action, a judgment dismissing the complaint entered upon a verdict for the defendant will be affirmed.
    Appeal by the plaintiff, Rosa Taranto, 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 21st day of November, 1906-upon the verdict of a jury dismissing the complaint upon the merits, and also from an order entered in said clerk’s office on the 9th day of January, 1906, denying the plaintiff’s motion for a new trial made upon the minutes.
    
      Nelson L. Keach [Achille J. Oishei with him ón the brief], for the appellant.
    
      Joseph Larocque, Jr., for the respondent.
   Woodward, J.:

It is difficult to understand just what question is presented by this appeal. The plaintiff brings this action to recover damages for personal injuries alleged to have been sustained on board one of . the defendant’s steamships while near Gibraltar in 1900 on its outbound trip from New York. The plaintiff was a passenger on board the steamship. On the same steamer was a passenger by the name of Viscardi. The plaintiff’s theory is that the ship’s interpreter committed an assault upon Viscardi; that the latter in self-defense drew a revolver and fired the same in such a careless and reckless- manner that the plaintiff was hit in the breast by one of the bullets, and more or less seriously injured. The defendant’s version is that the interpreter was called upon by a passenger who represented that Viscardi was crazy, and that the interpreter went to him and endeavored to soothe him, and that while thus engaged Viscardi did the shooting, immediately thereafter jumping overboard to his death. The complaint was based upon the theory of the celebrated squib case {Scott v. Shepherd, 2 W. Blackstone, 892; Smith’s Leading Cases [10th ed.], 438), that the ' defendant’s employee having set in motion an assault, and ' the assaulted party having committed the injury while trying to protect himself against the assault, the defendant was guilty of negligence in permitting its servant to make the original assault in violation of its contract for safé carriage of the passenger. At the close of the plaintiff’s case, and again after the defendant had rested, a motion was made to dismiss the complaint on the ground, among others, that .“it conclusively appears that the accident — or occasion of this trouble — arose out of an assault and battery, and that, therefore, the action is barred by the two years’ statute of limitations.” This motion was denied, the defendant excepting.

In charging the jury the learned court said that the defendant owed the plaintiff the duty “ to use all’ reasonable precautions to secure her against harm by the violence of other passengers. The alleged breach that gives rise to the cause of action, if any, in this case is that the defendant steamship company did not use all reasonable precautions to secure this woman who became their passenger against harm by the violence of other passengers. Under the law. applicable to this case there is but one quarter in which the negligence must be found, if the defendants were guilty of negligence in the performance of that duty. The only question is whether or not they took proper precautions in admitting steerage passengers on board this .vessel — whether they took proper precautions to see to it that they did not carry firearms.” In a subsequent paragraph the' court continued the charge: If this interpreter struck the man in the face, assaulted him, and the man was angered and that led to the shooting, that was an assault—the interpreter, an employee of the defendant, was guilty of an assault; but the limitation of an action for assault being two years the statute has- run against it, there is nothing left in the case but to determine whether there was proper precaution to see to it that men were not admitted on board the boat — steerage passengers on that voyage with firearms; and, if the defendants were, guilty of negligence in that quarter and that negligence led to or caused the in jury to the plaintiff, then they are liable; otherwise not. Now you must not try to escape from that issue and find a verdict on any other theory. You must confine yourself to that.”

It will be remembered that the court refused to dismiss on' the ground that the statute had run against the cause of action; the charge did not take the case from the jury on the ground that the statute had run against any cause of action alleged against the defendant. It was merely stated that if the interpreter had committed the assault, that he was guilty of an assault; but the limitation of an action for assault being two years the statute has run against it,” which was merely saying to the jury that this action was not dependent upon the assault committed on board a German steamship upon the high seas, but depended upon the performance of the duty of a common carrier to its passengers to use reasonable precautions to protect them against violence on the part of other passengers, which duty in this case, under the charge, was to use reasonable precautions in embarking passengers at the port of New York to see that they did not carry concealed weapons, in violation of the statute. . We do not care to be committed to the proposition here asserted, as it is not necessary to the determination of the question presented by the appeal.

Plaintiff’s counsel excepted to the charge “ wherein you take from the jury the right to consider the question as to whether the act of the interpreter in committing the assault upon this Viscardi — was the proximate cause of the shooting and that the company is not liable for that to the plaintiff; and in that connection I will ask your Honor to charge the jury that if they find he did assault and provoke Viscardi, and that the act of the servant of the defendant was the proximate cause of the injury to the plaintiff, the defendant is liable.” This was refused, the plaintiff excepting.

There is nothing in this exception or in the request to charge which in any way challenged the suggestion of the court that the Statute of Limitations had run as against an action for assault. The action was not based upon the assault as an assault, but upon the breach of the contract for safe carriage. The plaintiff, by not questioning that the Statute of Limitations had run, as against an assault, acquiesced in the theory of the case that it was for damages for breach of contract of carriage, and the question then became, not what was the proximate cause of the plaintiff’s injuries, but whether the defendant had used proper care in providing for her safe transportation, and the only question suggested under this head was whether the steamship company owed the duty of examining its steerage passengers- to determine whether, in boarding the vessel, they were violating the penal statutes of the State by carrying concealed weapons. The plaintiff went to the jury upon this, proposition, without questioning that the statute had run against any other form of action, or an action based on the negligence of tlie defendant in permitting the assault indirectly through one of its servants, and no reason suggests itself why the verdict should be disturbed, even if it be conceded that our courts would have jurisdiction of an action based upon an assault committed upon the high seas under a German flag.

The judgment and order appealed from should be affirmed, with costs.

Present — Woodward, Jenks, Hooker, Gaynor and Miller, JJ.

Judgment and order unanimously affirmed, with costs. 
      
      See Penal Code, §§ 410, 411.— [Rep.
     