
    Stephen Meyer, by Sigmund Lang, his Guardian, Plaintiff and Appellant, v. The Second Avenue Railroad Company, Defendant and Respondent.
    1. A railroad company are liable for injuries caused by the act of the driver of their car, in wrongfully, ejecting a passenger from the platform, even though the act of the driver be forcible, malicious and willful, and not merely negligent. It is to be deemed a part of the employment of a driver of a city railroad car, to put a person off the platform of the car who may be there without right or contrary to the regulations of the company, and also that it is by the company confided to sneh driver to determine whether a person on the platform is there without right or contrary to such regulations ; and a forcible and malicious ejectment of a passenger from the car by the driver, is an act in the course of his employment as a servant of the company.
    2. Held further, that where the evidence is conflicting, the question whether the plaintiff was on the car as a, passenger, and was pushed off, or was there without right and dropped off, is one for the Jury and not for the Court to determine.
    (Before Bosworth, Gh. J., and Moncrief and White, J. J.)
    Submitted, May I6th;
    decided, June 15th, 1861.
    Appeal from a judgment recovered after a trial before Chief Justice Bosworth, and a Jury, in June, 1860.
    TMs was an action brought by the plaintiff, a lad under fourteen .years of age suing by Ms guardian, to recover from the defendant damages for injuries to his person. It appeared from the testimony, that he was riding upon the front platform of a city railroad car, belonging to- the defendant, and that he fell or was pushed by the driver from the platform, and the car ran over Ms feet.
    The testimony of the plaintiff, which was corroborated by witnesses called in his behalf, went to show that he got into the car as a passenger, having money ready to pay Ms fare, and intending to pay it, and went through the car to the front platform, and while standing there, the car being in motion, the driver denounced him and pushed him off.
    The evidence on the part of the defendant, which was in direct conflict to the plaintiff’s evidence, went to show that the boys were running after the • car; that this boy jumped on, and when the conductor came to collect fares .attempted to jump off and fell in so doing.
    After the proof was all given, defendant’s Counsel moved
    1. To dismiss the plaintiff’s complaint, upon the ground that upon the plaintiff’s proof, the injury was caused by a forcible and malicious act of the driver, outside of the course of his employment, and that consequently defendant was not liable; or
    2. To direct a verdict for the defendant, on the ground that a verdict for the plaintiff would be against the evidence.
    Plaintiff’s Counsel opposed the motion and insisted, among other grounds, that the plaintiff, upon the evidence given, should be regarded as a passenger, and the acts of the conductor and the driver, as done in the course of their employment as such, and when in charge of the car; and that defendant was liable whether the injury was caused by the forcible or negligent acts of them, or either of them; and that, if there was a concurrence of forcible and negligent acts, the plaintiff was entitled to recover. And that at all events, the evidence being conflicting, it should be left to the Jury to find, upon the facts of the case, after proper instructions as to the law, if upon any theory of the case as disclosed by the evidence, the plaintiff could recover.
    The Judge declined to submit any question of fact to the Jury, and granted the motion of the defendant’s Counsel and dismissed the plaintiff’s complaint, upon the grounds that, according to the plaintiff’s own evidence, the driver forcibly and wantonly, and without any provocation, pushed the plaintiff off the car; and that such misconduct was not an act done in the course of his employment, and that defendant was, therefore, not liable; that according to the defendant’s evidence, the plaintiff had no cause of action. To this ruling and decision the plaintiff’s Counsel excepted.
    
      William H. Browne and Henry Bennett, for appellant.
    
      I. Plaintiff was entitled to have the case submitted to the Jury, upon all the evidence given, with proper instructions as to the law. Negligence is always a question of fact, to be determined by the Jury as a matter of fact, and not by the Court as a matter of law. In this case the evidence was conflicting, and the Court erred in refusing to submit the question of fact to the Jury for their decision upon the whole evidence presented, all of which had been given before the motion to dismiss the complaint was made.
    Defendant’s motion should have been denied, and the case fairly submitted to the Jury upon all the evidence. (2 Hilton R., 389 ; 19 How. Pr. R., 199 ; 14 N. Y. R., 310, 314 ; 19 Id., 127 ; 20 Id., 65 ; 2 Bosw., 374, 379 ; 5 Duer, 21, 27 ; 3 E. D. Smith, 327, 338 ; 4 Comst., 547 ; 17 N. Y. R., 362, 370 ; 5 Duer, 193, 199.)
    II. The evidence of negligence was ample, and sufficient as given both by plaintiff and defendant.
    Upon either version of the evidence the case was a proper one for the Jury; ¡and the Court was not authorized to withdraw the facts from their consideration. (18 N. Y. R., 408, 410 ; 14 N. Y. R., 314 ; 2 Bosw., 374, 379 ; 5 Duer, 21, 27 ; 19 How., 199, 204 ; 4 Comst., 547.)
    HI. Defendant is a corporation, and cannot act in person; what it does by its servants or agents it does itself; the acts of the driver and conductor in the management of the car, in taking on and putting off passengers, receiving fare, and in all other matters when acting for defendant and in the course of their employment, are defendant’s own acts. (Edw. on Bailments, 315-320 ; Broome’s Legal Max., 387, 411 ; 17 N. Y. R., 362, 370 ; 29 Barb., 132, 137.)
    IV. Defendant is as much liable for the acts of its servants, while acting in the course of their employment, in forcibly ejecting a passenger from a car, by which he is injured, (if done in an improper manner or without a justifiable cause,) as if the injury had arisen solely from negligence; and heavy damages in such cases have often been recovered.
    
      Defendant’s servants assumed (without inquiring as to the fact) that plaintiff did not intend to jjay his fare, and therefore they refused to treat him as a passenger, and by their improper and negligent conduct occasioned the injury; in this they were acting in the course of their employment; their suspicion that he did not intend to pay his fare was unfounded, and affords no justification or excuse; it serves to explain their conduct, and shows them acting in the course of their employment. (15 N. Y. R., 444, 450.)
    V. But the defendant’s own witnesses, the driver and the conductor, both testify, positively and unqualifiedly, that no force or violence was used towards plaintiff; after proving positively that no violence was used, and after having denied it under oath in the answer, defendant had no right to a nonsuit on the ground that the injury was occasioned by the forcible and malicious act of the driver. On such a motion defendant must assume that his answer was false, and his witnesses guilty of perjury; defendant is estopped from disputing the truth of his own pleadings and proof. (1 Stark. Ev., 387, § 9.)
    "VT. The proof given by defendant was as much the property of plaintiff as defendant, and could not be withdrawn ; nor could it be disregarded either by the Court or Jury.
    The evidence of the conductor showed the most culpable negligence. (3 Hill, 144 ; 1 Cow., 109.)
    VII. The complaint was sufficient to allow a recovery upon the proof given upon either ground; and beside, if it was necessary, an amendment should have been allowed; but as no objection was made at the trial upon the ground ■of variance, none can now be made. And for the same .reason no objection can now be made that the plaintiff was in fault. (14 N. Y. R., 143,148 ; 2 Seld., 147, 179.)
    VIII. It is the duty of Court and Jury to reconcile conflicting’ proof as far as possible. All plaintiff’s evidence .as to his being actually a passenger, able to pay, and Intending,to pay his-fare, and that he did not get off voluntarily is to be taken as true: and all defendant’s proof as to plaintiff hanging on to the car for a block and a half after he was pushed or jostled or fell off must be taken as true, no opposing proof being given on the other side; whether the driver did or did not push off plaintiff, and the question of negligence were questions of fact for the Jiuy. The conductor’s evidence shows gross and inexcusable negligence. There is no dispute as to the injury plaintiff received, and this is evidence of negligence, especially with the proof showing how it occurred. (19 How. Pr. R., 199, 204 ; 4 Comst., 547, 548.)
    IX. Defendant, by its servants, was guilty of negligence in not stopping the car so as to prevent the injury; and this was a question of fact for the Jury. (2 Bosw., 374, 376, 379, 380 ; 5 Duer, 21, 27 ; 17 N. Y. R., 362, 370.)
    X. By refusing to submit the question to the Jury, whether-the injury was occasioned by the forcible and malicious act of the driver, and not in the course of his employment, or resulted from the improper and negligent conduct of defendant’s servants while acting for defendant, and in the course of their employment, the Court, instead of the Jury, decided upon the facts of the case, and, we insist, against the weight of evidence. (17 N. Y. R., 362, 370 ; 19 How. Pr. R., 199, 204 ; 15 N. Y. R., 444, 450 ; 6 Carr. & Payne, 501 ; 9 Id., 607 ; Dunlap’s Paley’s Agency, 294-304 ; 5 Duer, 193, 199 ; 1 R. S., p. 696, §§ 6, 7 ; same stat., 2 R. S., 5th ed., 966 ; 3 Id., p. 589, § 3.)
    
      John H. Platt, John Slosson & Waldo Hutchins, for the Respondents.
    I. Upon the plaintiff’s own proof the injury was caused by a forcible and purely malicious and wanton act of the driver—a mere willful trespass—not committed in the course of his employment, nor in the exercise of any duty. It was an act not authorized or approved by the defendants, and was an outrage personal to the driver. It was not, as in the case of Weed v. Panama Railroad Company, an act done within the scope of his employment, and a ■wrongful mode of exercising it, but was wholly outside of it. (See that case, 5 Duer, 193 ; affirmed, 17 N. Y. R., 362.)
    “The principal is not liable for the torts or negligences of his agents in any matters beyond the scope of his agency, unless he has expressly authorized them to be done, or has subsequently adopted them for his use or benefit.” (Story on Ag., §§ 456-462, also § 452 ; see also Phila. and Reading R. R. Co. v. Derby, 14 How. U. S. R., 468 ; see also the following cases: Vanderbilt v. Richmond Co. Turnpike, 2 Comst., 479 ; Brown v. Copley, 7 Man. & Gr., 558 ; Heath v. Wilson, 9 Carr. & Payne, 607 ; Croft v. Alison, 4 Barn. & Ald., 590 ; Wright v. Wilcox, 19 Wend., 343.)
    The servants are not the Company, they are its agents and servants, and whatever tortious acts they commit by its direction it is responsible for, and no other. For injuries resulting from the carelessness of the servant in the performance of his master’s business the latter is liable, but for the willful acts of the servant, the master is not responsible, because such willful acts are a departure from the master’s business. Even in discharging a lawful duty, as in ejecting a passenger who refuses to show his ticket when required, if the servants of the Company use more force than necessary, they, and not the Company, are responsible for the consequences. (Hibbard v. N. Y. and Erie R. R. Co., 15 N. Y. R., 467.)
    If, therefore, when the plaintiff rested he had been non-suited, the case would have been perfectly clear.
    II. The defendant’s evidence makes it abundantly clear that the accident was wholly owing to the plaintiff’s fault.
    If the case had gone to the Jury, a verdict for the plaintiff could not have been sustained.
   By the Court—Bosworth, Ch. J.

I am satisfied that the nonsuit cannot be sustained on the first ground on which it was granted. That ground was, that assuming the case to be as the plaintiff’s evidence, prima facie, established it, “ the driver forcibly and wantonly, and without any provocation, pushed the plaintiff off the car; and that such misconduct was not an act done in the course of his employment, and that defendant was not therefore liable.”

There is no pretense that it was not a part of the driver’s appointed and regular duty, to put a person off the platform of the car, who might be there without right, or contrary to the regulations of the Companynor that it was not confided to the driver to determine whether a person on the platform was there without right or contrary to such regulations.

The theory of the defendant’s Counsel was, that the act of the driver was not done in the course of his employment, because it was done forcibly and maliciously. It was not disputed, that if the driver had put the plaintiff off without cause and had injured the plaintiff in ejecting him, through mere negligence, the defendant would be liable.

For the purpose of testing the ground first assigned for the nonsuit, it must be assumed that the driver was authorized, for cause and in a proper manner, to put persons off the platform of the car. In such a case it is not denied, that if he does it so negligently that the person ejected is injured, the Company is liable. The precise question which the first ground of nonsuit presents, is this: is the Company liable if the driver acts maliciously in ejecting the passenger ?

The case of Weed v. The Panama Railroad Company, (17 N. Y. R., 362,) decides this proposition against the defendant. In that case the conductor detained the train at an exposed place all night, and did so maliciously. The plaintiff was made sick by the exposure and endured great suffering. It was held that whether the act of the conductor was willful or negligent merely, made no difference as to the liability of the defendant.

In the case before us, the malicious ejection of the plaintiff from the car by the driver, was as truly a breach of the ' defendant’s duty to carry the plaintiff to Fifth street in safety and with all reasonable dispatch, as the malicious detention of the train by the conductor, in the case cited, was a breach of his principal’s similar duty.

The cases of McManus v. Crickett, (1 East., 106,) and the Richmond Turnpike Company v. Vanderbilt, (1 Hill, 480,) are unlike this in a very essential particular. In the former the defendant’s servant had no authority to drive against the plaintiff’s chaise for any cause or under any circumstances. In the latter, the captain of the boat, belonging to the Turnpike Company, had no authority to run it against Vanderbilt’s boat under any pretense.

In those eases the acts of the servants had no connection with matters or persons, as to which or whom the principal had confided any authority to the servants. The servants, in what they did, were not acting, in any sense, within the scope of their employment. In the case before us, according to the plaintiff’s testimony, he entered the cars as a passenger, intending to pay his fare and having money with which to pay it. And the driver, under circumstances that might occur, was authorized to eject him in a proper manner, and was also authorized to determine whether occasion to eject him existed. Had he ejected him so negligently as to injure him, the defendant would be liable; and the fact that the driver ejected him maliciously, instead of negligently merely, makes no difference as to the' defendant’s liability. The rule in the English courts is to the same effect. (Green v. The London General Omnibus Co., 7 Com. Bench, [J. Scott,] N. S., 290 ; and see Althorf v. Wolfe, 22 N. Y. R., 361.)

I am of the opinion, therefore, that as the evidence stood when the nonsuit was ordered, the cause should have been submitted to the Jury with instructions, that if they believed the plaintiff’s witnesses, the plaintiff was entitled to recover; while, on the other hand,- if they believed the defendant’s witnesses, their verdict should be in favor of the defendant.

The driver testified that he did not push the plaintiff off the car, and not only that, but that he did not see him on thecar. The testimony of the conductor, of Vogel and of Wm. Smith, is equally pointed. On the other hand, the testimony of the plaintiff and Louis Klager is direct, that the driver pushed him off.

Whether he was on the car as a passenger and was pushed off and injured, or whether he was hanging on the car, without right, and dropped off on seeing the conductor approaching, were questions for the Jury and not for the Court to determine. The judgment should be reversed and a new trial granted, with costs to abide the event.

Ordered accordingly.  