
    John Hanna, Respondent, v. The Nassau Electric Railroad Company, Appellant.
    
      :Assault by a earner— rights of' a passenger where aca/r is too crowded for his entry— - effect of a city ordinance forbidding his standing upon the platform—effect of the acceptance by the company of his transfer ticket —a passenger should not board a crowded car. .....
    In an action for assault'brought against a company maintaining a street railroad, in a city, an ordinance of which provided that no person except motormen, conductors or police officers in uniform should be allowed on the front platform of a street car in operation, it appeared that a passenger having a transfer ticket from one of the defendant’s lines boarded one of its cars by its front platform and surrendered his transfer ticket, after which he was directed by officials of -the road who were riding on the front platform to. enter the car; finding this to he impossible, he refused to leave the platform, and was thereupon ejected from the car. by force.
    
      Held, that the court properly charged the jury that if the plaintiff's ticket had been taken from him by the conductor and there Was not sufficient room in the body of theear to permit him to enter, 'his.-cjéction- was.'illegal, but: that-if there was room in the car he was bound to enter it, his removal from the car was lawful and the defendant was entitled to a verdict unless excessive force was employed. . - -
    A railroad corporation which has accepted a passenger’s transfer ticket cannot remove him from its car -until it has either returned, or tendered a return- of," .'the ticket to him. .
    A transferred passenger has not necessarily the right to board the first car that ' approaches him on the line, regardless of- whether there is accommodation for him, and to force himself into a dangerous or improper position upon the car; his duty is to wait until a car approaches in proper condition to receive Mm, and should no such car appear, he can maintain an action"against the. corporation for .its'breach.of its contract to carry him.
    Appeal by. thé defendant, The Nassau Electric Railroad Company, from a judgment of the Comity Court of Kings county in favor of the plaintiff, entered in .the office of the clerk of the county off Kings on the 7th day of; November,-1896, upon the verdict of a jury, and also'fro'm an ordér- entered in said clerk’s • office oh the 7th day of December, 1896, denying the defendant’s motion for a new trial made upon the. minutes.
    
      James O'. Church, for the appellant.
    ' Edward C. Tucker-, for the respondent. ■
   Per Curiam :

The plaintiff was a passenger on one of defendant’s railroad lines on Bergen street, in Brooklyn. When the car reached the intersection off Fifth avenue, he..got a transfer slip,.entitling, him to continue his journey on the line upon that avenue. When a.car came along the avenue,, the plaintiff boarded it. by the front, platform.He testifies that the conductor took from him his transfer slip that subsequently two of the defendant’s officers, who were riding on the front platform, instructed him that-he could no longer ride on that platform, but must enter the car; that he found it- impossible -to . enter the body of the car, and refused to leave the platform ; that, thereupon, he was ejected from the car.. For that assault the action is brought. The defendant’s evidence tended to prove that there was room in the car for the plaintiff to enter, and also that plaintiff’s transfer ticket had not been taken up. The court submitted the case to the jury, with.instruetions that) if the plaintiff’s ticket had been taken from him by the' conductor, and there was not sufficient room in the body of the car to permit the plaintiff to enter, then his ejection from the car was illegal and he was entitled to recover; but that if there was room in the car, he was bound to comply with the instruction to enter it, his removal from the car was lawful, and the defendant was entitled to a verdict, unless excessive force was employed.

We have no doubt of the correctness of this charge of the court on this main proposition involved in the case and presented on this appeal. There was, at the time of the transaction and still is, an ordinance of the .city of Brooklyn as follows :

“ Occupation of platform. No person except motormen, conductors or police officers in uniform, shall be allowed on the front platforms of any such cars then in Operation, except that such platform may be used for the exit of passengers at the corner stoppages.”

The defendant contends that, even though it had received plaintiff’s fare and taken his ticket, his presence on the front platform was, under the ordinance, unlawful, and that the defendant had the right to remove him therefrom. We think not. This ordinance imposed a duty on the railroad company. As between the railroad company and the passenger, it acted as a regulation of the former. It was undoubtedly a reasonable and proper regulation, and the defendant could enforce it; but it could not, when it had no accommodation open to him within the car, retain the plaintiff’s ticket or accept his fare while riding on the front platform and then eject him from the car; The acceptance of the ticket or fare did not necessarily preclude the defendant from enforcing the ordinance. If, either intentionally or through inadvertence, it receives the fare from a passenger for whom there is no place within the car, we think it may repent of its action and subsequently seek to comply with the ordinance. But restitution, in our judgment, is a condition precedent to repentance. If it had- taken the plaintiff’s fare, the defendant could not remove him from the car until it either returned or tendered to him the ticket which he had given up. (Burnham v. Grand Trunk Ry. Co., 63 Maine; 298; Bland v. Southern Pacific R. R. Co., 55 Cal. 570.)

But the jury might have found that,/while there was no room for the plaintiff to enter- the ear, still his ticket had not been in fact taken from him. In that case, the plaintiff was properly ejected from the carl As to this, defendant’s counsel requested the court -to charge: That if the car that the plaintiff boarded was so crowded that it was impossible for the plaintiff to get. inside :of ..the saíne, that that fact did not give him the right to ride.upon the front platform in violence óf the said ordinance.” This was refused, and. the defendant excepted: In' response to a request for the plaintiff, the court chargéd: That where a street railway- company, after ' [collecting] the passengér’s fare,- issues a. transfer dr ticket to the passenger .to another line of cars belonging to its system, and a passenger to. whom such transfer has been issued-boards a car belonging to the line to which he has been transferred, the passenger so remains a passenger of such street-railway company both before and after the taking up' of the transfer ticket by the conductor of the car to .which he was. transferred.” To this charge the' defendant excepted. ■ We-think this request and refusal were sufficient to-present' the point involved in .this branch of the case, and that -the r tilings, of the court ..were erroneous. A transferred passenger has not necessarily,the right to board the first car that approaches on .the line, regardless of whether . there is accommodation for.him. As already stated, in our view, he had not the. right to remain on the front platform-unless the company received him as- a passenger.' His duty was to wait till á car, approached in proper condition to receive-him./ If none came, he could maintain his, action against the company -for breach, of the contract to carry him..' But he could not force himself -into a dan-;

. gerous "or improper position upon the car against the action and remonstrances of the defendant.

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

Goodrich, P. J.:

The complaint alleges, that on April 10, .1896, the plaintiff was a-passenger, on the defendants Bergen Street line,'having paid his fare thereon; -that, bn the arrival of the car at Fifth avenue, he received a transfer ticket for that line and got- on the front platform of one of the cars and delivered his transfer ticket to the conductor, who told him to go inside the car, which he attempted to do, but was prevented from doing by reason of the crowded condition of the car; that thereupon one of the defendant’s servants who was standing by the motorman seized him, and with great violence endeavored to push him inside of the car ; that the passengers refused to allow him to enter, whereupon the motorman, conductor and another servant of the defendant seized him by the throat and struck him, and with great violence put him off the car; that he twice again managed to regain the front platform and was put off both times with violence, but again got on and was permitted to ride to his place of destination.

The defendant, among other defenses, pleaded an ordinance of the city of Brooklyn, which reads as follows :

3. Occupation of platform. No ■ person except motormen, conductors or police officers in uniform, shall be allowed on the front platforms of any such cars then in operation, except that such platform may be used for the exit of passengers at the corner stoppages. * "x" *
“ '7. Penalty. Any corporation whose officers, agents or servants shall wilfully or negligently violate any of the provisions of this ordinance, shall be liable for a penalty in the sum of twenty-five dollars for each and every offense.”

At the close of the plaintiff’s case the defendant moved to dismiss the complaint on the following grounds:

“ First. That the plaintiff, having taken passage on this car, was bound to comply with the regulations which th'e company might make, and also bound to comply with any ordinances of the city of Brooklyn entailing an obligation on the defendants relative to the operation of their railroad.
“ Second. That the defendant in the operation of its railroad was bound to see that in the conduct of its business the ordinance of the common council .relative to carrying of passengers was complied with.”

This motion was renewed at the close of the testimony and both motions were refused.

The learned court charged. that it was the duty of the plaintiff upon taking passage on ' defendant’s, car to observe the regulations of the defendant company and common council relative to the operation of street cars'; that the plaintiff was a lawful passenger and that “ The question is a narrow one and turns entirely upon whether or not there was room in this car for the plaintiff to enter. * * The question then is for you to determine whether, as a question of fact, there was'such a crowd as made it impossible for him to leave the platform and go in. If there was such a crowd, I charge you he had a right to ride upon the front platform, providing his fare had been taken before any notice had been given to him to leave the platform.” To these parts of the charge the defendant excepted. The court was also requested to charge : “ That it was the duty of the plaintiff to obey the ordinance in question, and upon the plaintiff’s' refusing to ride elsewhere on said car. than upon the front platform, to remove him from the front platform. The Court: I so charge you if there was room, for him to ride elsewhere on the car.” Thus it will be seen that the defendant, under the exceptions, squarely raised the question of the force of the ordinance above referred to.

Lord Coke says that the word “ by ” or “ bye ” signifies an habitation, and that a by-law or ordinance may be defined to be the law of the inhabitants’ of the corporate place or district, made by themselves or the authorized body, in distinction from the general law of the country, or the statute law of the particular State. It is Well settled that it is Competent for the Legislature to delegate to municipal corporations the power to make by-laws and ordinances, and such ordinances have the force, in favor of the municipality, and' against persons bo'und thereby, of laws passed by the Legislature of the State. (Hopkins v. Mayor, etc., of Swansea, 4 M. & W. 620; 1 Dillon Mun. Corp. §§ 307, 308.)

The ordinance in question, therefore, has. the same effect in the city of Brooklyn as an act of the Legislature of the State, and no question of its validity is raised by the plaintiff’s counsel. Ignorance of its existence would not avail or excuse the plaintiff. Then he was riding upon the front platform in open defiance of the law. Especially was he a wrongdoer in persisting to occupy the place after notice to leave. The fact that he could not obtain admission to the inside of the car on account of the resistance of the crowd did not justify him in persisting in his determination to ride upon the front platform. When he was requested by the servants of the defendant to leave the front platform^ he was bound to comply with such request, and his refusal to do so was a breach of law which justified the defendant in using such force as was necessary to exclude him. If he had left, the front platform when ordered, he would have been entitled to passage upon another car, and could have maintained his action for á refusal to carry him.

. Nor does it matter that two persons, not in uniform, other than the motorman were riding upon the front platform. The testimony shows that the president and another officer of the company, not in uniform, were riding upon the platform, and that the president was handling the brake. Even if those persons had been strangers to the corporation, their presence did not justify the plaintiff in claiming to ride upon the front platform. If the defendant, by permitting these persons on the front platform was infringing the ordinance, a penalty was provided which the city could enforce. Infraction of the law by one person, however, does not justify its infraction by another. To hold otherwise would justify disobedience of the law by a number of persons, where disobedience by a single person would be punishable.

The plaintiff argues in support of the verdict that he could not, in an action for damages to his person by negligence of defendant, be held guilty of contributory negligence in standing on the front platform. It is not necessary to consider this matter, as the question does not arise in this action.

Nor does it. matter .that the ordinance provides a penalty- only against the company and does not provide one against a passenger. This would seem to more strongly justify the defendant in enforcr ing the observance of an ordinance for breach of which it was liable, as it had no other method of self-protection. Besides, the prohibition and the penalty are in distinct sections of the ordinance; the section which forbids the allowing of passengers on the front platform is complete in itself and makes a rule which all persons are bound to obey. The plaintiff cannot shield himself from a breach of the law by pleading that no penalty attaches to him for its violation. He cannot take advantage of his own wrong, and he was wrong, in -riding where he and all others were forbidden to ride.

• It is proper for us also to refer to the refusal of the learned court to charge as requested and to his modification of the request by making tire duty of the plaintiff to obey the ordinance depend upon the crowded condition of the car. We think this was error.

The judgment must be reversed and a new trial granted. •

All concurred, except Goodrich, P. J., who concurred in the •result. ■

Judgment and order reversed and a'new trial granted, costs to abide the event.' .'■■■■  