
    Simon A. Weber, Respondent, v. Brooklyn, Queens County and Suburban Railroad Company, Appellant.
    • Assault on a passenger by a car conductor—a passenger leaving his seat to remonstrate with a conductor does not forfeit his rights — his use of indecent and insulting language.
    
    A passenger on a railroad car who leaves his seat and goes to the platform to-remonstrate with the conductor for what ho conceives to be the- conductor’s.
    - abusive treatment of an intoxicated passenger, does, not thereby forfeit his. rights as a passenger or relieve the railroad company from liability' for an assault made upon him, in his removal from the -car, by the conductor in an-' altercation which ensued.
    
      Indecent, insulting or provoking language used by a passenger while remonstrating with the conductor, does not justify the conductor in assaulting him or prevent the passenger from recovering from the railroad company the damages caused by such assault.
    
      It seems,-however, that he ■ could not recover if he used the provoking language with the intention of bringing about the result which followed.
    Appeal by the defendant, the Brooklyn, Queens County and Suburban Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of-Kings on the 24th day of March, 1899, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 29th day of March, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      John, L. Wells, for the appellant.
    
      C. W. Laskey, for the respondent.
   Willard Bartlett, J.:

The plaintiff, while a passenger on one of the defendant’s cars, was forcibly ejected therefrom- by the conductor. He had stepped to the rear platform to remonstrate with the conductor for what the plaintiff conceived to be his abusive treatment of another passenger. An altercation ensued between the plaintiff and the conductor, which resulted in the removal of the plaintiff from the car. The question in the present action is whether the assault involved in such removal was justifiable or not.

The appellant presents four points which we will consider in the order in which they are stated in the brief.

(1) It is contended that, inasmuch as the plaintiff voluntarily left his seat in the car and interfered with the management of the car and its passengers without cause, he waived his rights as a passenger and the defendant was freed from liability for the result.

According to. the plaintiff’s narrative of the events which resulted in his ejection from the car, he did nothing more than civilly to protest .against what he considered the unkind treatment of an intoxicated passenger whom the conductor had handled with unnecessary roughness before putting .him off the car. It cannot seri'ously be supposed that a person by such an act of. remonstrance as this forfeits his right to be protected from assaults by the servants of a common carrier in whose vehicle he is a passenger. The case cited by the appellant upon this point was one in which a conductor shot a passenger upon a railway train, but the defense was that the shooting was justified hy the fact that the passenger at the time was advancing upon the conductor, or making hostile demonstration toward him with a knife, in such a manner as to put the conductor in imminent danger of his life or great bodily harm. (New Orleans & North Eastern R. R. Co. v. Jopes, 142 U. S. 18.) Such circumstances present-no analogy whatever to the facts in the case at bar. The plaintiff’s position here, assuming as we must that the jury accepted his version of what happened, was more like that of the plaintiff in Bryant v. Rich (106 Mass. 180), where he was assaulted hy the steward and table waiters on a steamboat because he told the steward that they had no right to order a fellow-traveler into his berth.

(2) We are asked tó hold that the trial court erred in .denying the defendant’s motion to dismiss at the close of the whole case, for the reason that it then clearly appeared that the plaintiff had brought the assault upon himself.

As to this proposition it is necessary only to say that there was clearly a question of fact for the jury as to the circumstances preceding the assault and the circumstances of the assault itself.

(3) It is further argued that the trial judge erred in charging the jury in the following language: It is true that indecent, insulting or provoking language is not sufficient to justify an assault. * * * If you find that his conduct was insulting, his language indecent and provoking, you may take that into consideration in mitigation of damages, if you find that he did not assault the conductor.”

We can find no exception to the second sentence above quoted. There is an exception, however, to the first proposition; but we are not able to perceive why it does not correctly state the rule of law. - From the context it would seem that the learned trial judge at the time was talking about the passenger rather than the conductor. There had.been testimony to the effect that the plaintiff struck the first blow, and the language "criticised may well have been understood by the jury to mean that he was not warranted in'striking the conductor by reason of any language which the latter had used. •Let us assume, however, that the learned judge referred to the conductor, and thus declared that indecent, insulting or provoking language on the part of the plaintiff did not justify the conductor in assaulting him. Was this instruction incorrect? We think not. If a passenger in a railroad car is guilty of disorderly conduct, the conductor may lawfully require him to leave the car, and in the event of his refusal to do so may exercise such force as is necessary to eject him-—-hut no more. The conductor cannot rightfully assault the passenger merely because the passenger has insulted him or otherwise provoked him by mere words; and if he does assault the passenger by reason of such provocation only, unaccompanied by any threats or acts of personal violence, the railroad company will be liable for the consequences of the assault under the well-established rule which protects passengers against the misconduct of a common carrier’s servants. (Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588 ; New Jersey Steamboat Co. v. Brockett, 121 U. S. 637.)

In the charge in the present case the jury were distinctly instructed that it was within the due scope of the employment of the conductor, if the plaintiff was acting in an unbecoming manner which would be insulting to other passengers, to eject him from the car. The language of the entire charge taken together laid down the law substantially as we have already stated it. The only case to which we have been referred which seems to conflict with this view is Scott v. Central Park, etc., R. R. Co. (53 Hun, 414). There the plaintiff sued to recover damages on account of an assault committed upon him by a driver of one of the defendant’s cars. The trial judge was requested to charge the jury that if they believed the plaintiff commenced the altercation, and in the course of it addressed indecent and insulting language to the driver, language such as was calculated or likely to produce the assault, the verdict must be for the defendant. The learned judge refused to charge this proposition,, and the General Term of the first department, in an opinion by Yah Bbuht, B. J., declared that this refusal was erroneous. If the passenger forgets his obligations, said the learned presiding justice, and “ by his indecent behavior and by the use of language which is morally certaiú to end in a personal encounter, he succeeds in his efforts to bring about such a result, certainly the carrier cannot be bound to protect the passenger under such circumstances from the natural and probable results of his own act.”

With this opinion Mr. Justice Brady concurred. ' Mr. Justice Daniels, however, although he agreed to a reversal on other grounds, did not concur in the proposition that the defendant would be exempted from liability if the plaintiff used language to the driver, likely to provoke the assault. We quote from his opinion: “The court did charge the jury that the plaintiff was not entitled to recover if he provoked the assault by his- acts or threats of personal violence. This was required by the case for the reason that the driver testified that he was first personally assaulted by the plaintiff. The requests refused by the court were made upon the theory that the coarse; insulting and provoking words of the plaintiff would, of themselves, justify or excuse the assault of the driver. But the law is settled that words alone will not excuse a resort to personal vio-' lence. For that reason these requests could not be charged. But the fact that the plaintiff brought on the altercation, and made use of- ■ language naturally calculated to provoke the driver, went very decidedly in mitigation of the damages.”

This states the law as we understand it, and substantially as it was laid down to the jury in the case at bar. To avoid any possible misunderstanding, it may be well to ad.d that, of course, the passenger could not recover if he used the provoking language with the intent of bringing about the assault which followed.

Though we are naturally reluctant to differ from the prevailing opinion of the General Term in another department, we are constrained to do so Avhen the view of the minority seems to us so much better supported in reason and authority. »

(4) Finally, it- is contended .that the jury ought to have been instructed in accordance with the request of counsellor the defendant, that if the plaintiff’s conduct was improper, and he used any abusive or indecent language which was sufficient to provoke or bring about the difficulty, those facts would suffice to absolve the the defendant from liability,

In declining to charge this proposition, the court added: “ But I do charge you, gentlemen of -the jury, that if the conduct was gross and improper it was .within the right of the conductor to’ eject him from the' car, and for any subsequent conduct on the part of the conductor the defendant company would not be liable.”

This point is disposed of by what has already been said in reference to the appellant’s third proposition.. The record presents no other question for discussion, and it follows that the judgment and order appealed from should be affirmed.

Judgment and order unanimously affirmed, with costs.  