
    August Baker, Appellant, v. Brooklyn Union Elevated Railroad Company, Respondent.
    Second Department,
    July 27, 1911.
    Assault and battery — liability of railroad for assault by servant — provocation — erroneous charge.
    The fact that a passenger on a street car uses vile and insulting language to the conductor does not justify an assault by the latter and the carrier will be hable therefor, unless the jury determine that the passenger used the language with an intent to .bring about the assault.
    In an action to recover for such assault and battery it is error for the court to refuse to charge that the plaintiff cannot recover if he used language to the conductor with an intent to bring about the assault, if the words used are such as to raise that question, even though they did not in terms directly invite violence.
    Where such question exists, it is error for the court to charge that the jury may find for the plaintiff if they believe his version of the affair, and for the defendant if they believe its version, for under such charge the jurors merely determine the credibility of witnesses.
    Appeal by the plaintiff, August Baker, from an order of the Municipal Court of the city of New York, borough of Brooklyn, entered in the office of the clerk of said court on the 1st day of May, 1911', setting aside the verdict of the jury and" granting a new trial.
    
      Wilson & Wilson, for the appellant.
    
      James W. Carpenter, for the respondent.
   Jenks, P. J.:

This is plaintiff’s appeal from an order of the Municipal Court setting aside his verdict and affording a new trial upon defendant’s motion made upon section 999 of the Code of Civil Procedure, and section 254 of the Municipal Court Act. The specific ground of the order is not stated. The action is by passenger against á common carrier of persons, for . an assault and battery by its servant. It is undisputed that the plaintiff applied a vile and insulting epithet to the servant, who thereupon dealt a blow to the plaintiff. Such language, or any vile or insulting language, did not justify violence, and such common carrier could, be held liable therefor (Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588), unless the jury determined that the plaintiff used provoking language with the intent to bring about the assault and battery. (Weber v. Brooklyn, Queens County & Suburban R. R. Co., 47 App. Div. 306.) Although the language did not in terms directly invite the violence, its character was such as to present the question whether it was not used with the intent to provoke it. For this reason I think that the learned court erred in its refusal to instruct the jury within the exception noted in Weber’s Case (supra). And if there was such question then the learned court also erred in instructing the jury that if they believe' the plaintiff’s version or story they must find for the plaintiff, and if they believe the defendant’s story they must find for the defendant, for thereby the court relegated the jury to be but triers of the credibility of the witnesses. (Kellegher v. Forty-second St., etc., R. R. Co., 171 N. Y. 309.)

The order is affirmed, with costs.

Thomas, Carr, Woodward and Rich, JJ., concurred!

Order of the Municipal Court affirmed, with costs.  