
    Julia V. D. Thompson, App’lt, v. The Manhattan Railway Company, Resp’t.
    
      (Supreme Court, General Term, Second Department,
    
    
      Filed February 12, 1894.)
    
    1. Carriers—Fellow passenger.
    The fact that, by reason of his intoxication, a passenger is dangerous or annoying to others, gives the right, and imposes the duty, of expulsion.
    3. Same—Injury.
    If, by neglect of this duty, a fellow passenger receives an injury which might have been reasonably anticipated, the company is liable.
    3. Same.
    Where the injury is an accident which no ordinary diligence will prevent» the company cannot be made liable.
    Appeal from a judgment dismissing the complaint.
    
      Chas. J. Patterson, for app’lt; Davies, Short & Townsend, for resp’t.
   Dykman, J.

This suit was for the recovery of damages for injuries to the plaintiff’s foot. The complaint contains two counts for injuries to the same foot. The first injury was by being trodden upon by a passenger who was standing in the same car where the plaintiff was seated, about the 1st of June, 1888. The plaintiff entered the car at the City Hall station, and after it started she noticed a man in a state of intoxication standing in the aisle, holding onto a strap, nearly in front of her. After the man had been in that position some time, he lurched, and stepped on the plaintiff's foot. He was ¡holding onto the strap, and lurching at every turn. Some ladies appeared to be frightened, but neither they nor the plaintiff made any special manifestation of tlieir fear. A passenger called the attention of the guard to the intoxicated man, and suggested that he be put off or found a seat, and made some other suggestions, but he was not removed. He addressed no one," threatened no one, and was neither obscene nor profane, so far' as we can gather from the record. In relation to the second cause of action the facts are these. The same foot of the plaintiff was stepped on about three years afterwards, on the platform of the defendant’s station at the city hall, in New York city, as she left the defendant’s car. She was returning home, and reached the station about 6 o’clock in the evening, when the station platform was unusually crowded. When the train came to a stop, the guard on the car platform opened the car gate, and cried out, “Let them off first,” and then left the car. The plaintiff landed safely, and had advanced a few steps on the platform, pushing her way through the crowd, when another person stepped on the same foot, and inflicted the second injury. At the trial, when the plaintiff-rested her case, the trial judge dismissed the complaint on motion of the defendant, and the plaintiff excepted to such dismission.

The question, therefore, is whether the testimony introduced on the part of the plaintiff was sufficient to carry the cause to the jury. Carriers of passengers are not insurers of their personal safety against all contingencies. They are responsible only for want of care or skill. As, therefore, they are liable for failure to", exert such care and skill, they are bound to take all reasonable means and measures to secure the safety and comfort of their passengers. In the exercise of that power, they have the right to-repress disorderly conduct in their vehicles, and to expel therefrom persons whose conduct is such as to render it reasonably certain that disturbance or impropriety will follow. Vinton v. Railroad Co., 11 Allen, 304. There is no legal principle which imposes liability upon a carrier of passengers for the wrongful acts of the passenger; but because such carriers have the right to-refuse passage to one who is drunk or disorderly, and to expel him after he has been received if he so conducts himself as to be dangerous to other passengers or interfere with their comfort, and it is their duty to expel persons who imperil the safety or annoy their fellow passengers, they may become responsible for injuries inflicted or resulting as a consequence of such negligence. Yet it must be borne in mind that all passengers have the same legrd rights, of which they cannot be deprived until they are forfeited by their misconduct. A man in a state of- inebriety has a legal right to ride in a public conveyance. So long as he remains quiet, and molests no one, he cannot be legally expelled. It is only when he becomes dangerous or annoying to" other passengers that he becomes liable to expulsion. The question was dully examined in the court of appeals in our state in the case of Putnam v. Broadway & S. A. Railroad Co., 55 N. Y. 114, and the principles there laid down were these: A railroad company is not liable for the wrongful acts of a passenger, but it is bound to exercise the utmost vigilance in maintaining order and guarding its passengers against violence. It has authority to refuse to receive as a passenger, or to expel, one who so demeans himself as to endanger the safety, or interfere with the reasonable comfort and. com yenience, of other passengers: and this police power the conductor or other servant in charge of the car or train is bound to exercise, with all the means at his command, when occasion requires. If this duty is neglected, and in consequence a passenger receives-injury which might have been reasonably anticipated, the company is liable. The fact that an individual has drunk to excess will not, in every case, warrant his expulsion. It is rather the effect on him, and the fact that, by reason of his intoxication, he is dangerous or annoying to others, that gives the right, and imposes the duty, of expulsion. The conductor is only called upon to act upon improprieties or offenses witnessed by or made known to him, and the company can only be charged for the neglect of some duty arising from circumstances of which the conductor was cognizant, or of which, in the discharge of his duties, he ought to have been cognizant. That was the celebrated car-hook murder case, when Foster killed Putnam with a car hook. Both were passengers on a surface car. Foster was tried for the crime, and convicted of murder, and executed. Thereafter the administratrix of Putnam brought civil suit against the railroad company fot’ the recovery of damages resulting lrom his death, which she claimed was the result of the negligence of the company. The court of appeals held the facts, even in that case, insufficient to charge the railroad company with negligence, and the misconduct of Foster in that case was much more disorderly and annoying than that of the man who inflicted the injury upon the plaintiff.. Foster made himself obnoxious to the other passengers, insulted a. lady, and made threats of personal violence against Mr. Putnam. This man did nothing of that kind. He was in a state of inebriation, but not very profound, as we assume from the fact that he kept his feet, and, as we must assume from the testimony of the plaintiff, walked into and out of the car. His inebriety made him neither belligerent or loquacious. There is no claim that his injury to the plaintiff was intentional, and we detect no misconduct on his part that would have justified his expulsion from the car. We also find the evidence entirely insufficient to charge-the guard with any neglect of duty which the law imposed upon him. It is true that his attention was called to the man, but he neither saw nor received information of any impropriety, nor anything to indicate a disturbance. It follows that we find no cause of action under the first count.

Under the second count there is no reason for an extended examination. The railroad company was bound to furnish a safe and convenient place of exit from its car, and it did so. The station platform was in order, and adequate for the strain to which it was subjected. The plaintiff left the car in a crowd of people, and took one or two steps upon the platform, when some person trod upon her foot. There was no sign of approaching danger, and it could not have been averted. The guard directed the people to allow the passengers to leave the car first, but his request was unheeded, and he was powerless. He saw nothing to indicate danger to the plaintiff, and her injury was an accident which no ordinary diligence would prevent, and for which the company cannot be made liable. It thus appears that the plaintiff had no cause of action against the defendant, and the judgment should be. affirmed, with costs.

All concur.  