
    Giovanni Amato, by Guardian, Respondent, v. The Sixth Avenue Railroad Co., Appellant.
    (New York Common Pleas—General Term,
    June, 1894.)
    The fact that a person is a trespasser upon a street car does not lawfully expose him to ej ectment by unusual means or excessive force, nor license the company or its servants unnecessarily to inflict upon him bodily injury, and whether the force used was excessive, or the means resorted to unusually dangerous and menacing to life or limb, in a particular case is a question for the jury to determine upon all the circumstances of the case.
    In ejecting a trespasser from the car the driver acts within his employment, and the rule respondeat superior applies.
    Appeal from a judgment for plaintiff, which was rendered upon a verdict in his favor. Appeal also from an order which denied defendant’s motion, upon the minutes, for a new trial.
    Action to recover damages for personal injuries sustained by the plaintiff in being forcibly ejected from one of the defendant’s cars by the driver thereof.
    
      D. M. Porter, for respondent.
    
      Wm. S. Cogswell, for appellant.
   Bischoff, J.

In response to the call of a passenger, and intending to supply the latter with a paper, the plaintiff, a newsboy, jumped aboard one of the defendant’s cars. While standing on the front platform of the car, in the act of supplying the passenger, the plaintiff was ordered off by the driver. The lad begged to be permitted to remain pending the passing of a truck, and did not at once leave the car, which was moving at the time. Heedless of the appeal, the driver violently pushed the lad, who fell off and under the car, thus sustaining the injuries which have made him a cripple for life.

True, the driver, called as a witness for the defendant, denied that he pushed the lad, but there is nothing so intrinsically improbable in the latter’s version of the accident that in crediting him we may say that a verdict in his favor was against the preponderance of evidence. The defendant did not, when the introduction of evidence for both sides was concluded, ask that a verdict be directed in its favor. Neither was the motion for dismissal of the complaint renewed. It was conceded, therefore, that the evidence was sufficient to require its submission to the jury. Paige v. Chedsey, 4 Misc. Rep. 183; Meyers v. Cohn, Id. 185.

We assume that in boarding the defendant’s car, not intending to become a passenger, the plaintiff for the time being was a trespasser. That fact, however, did not lawfully expose him to ejectment by unusual means or excessive force, nor license the defendant or its servants unnecessarily to inflict upon him bodily injury (Filkins v. People, 69 N. Y. 101; Kiff v. Youmans, 86 id. 324; Loomis v. Terry, 17 Wend. 496), and whether or not the force used was excessive, or the means resorted to for the plaintiff’s expulsion were unusually dangerous and menacing to life or limb, was, in view of all the circumstances, a question of fact for the jury. Cooley Torts (2d ed.), 194.

Defendant may lawfully prevent access by a trespasser to its cars, and if access has been gained it may lawfully expel the trespasser, using for that purpose only necessary force, in view of all the circumstances, and resorting to no means which unnecessarily menace the life or limb of the trespasser. It may lawfully delegate its authority in that regard to its servants, and que facit per alium facit per se. Broom’s Maxims, 524, 525; Cooley Torts (2d ed.), 625. Authority from the defendant to its driver to expel trespassers is fairly to be implied from the employment. Wood’s Mast. & Serv. 524. Hence, in ejecting the plaintiff from the car the driver was acting within his employment, and the rule respondeat superior applies. To that effect are the adjudged cases. Rounds v. D. L. & W. R. R. Co., 64 N. Y. 129; Hoffman v. N. Y. Cent. & H. R. R. R. Co., 87 id. 25; Clark v. N. Y. L. E. & W. R. R. Co., 40 Hun, 605; 113 N. Y. 670; Day v. Brooklyn City R. R. Co., 12 Hun, 435; 76 N. Y. 593.

The judgment and order should be affirmed, with costs.

Bookstaver and Pryor, JJ., concur.

Judgment and order affirmed, with costs.  