
    Thomas Hogan, Adm’r, Resp’t, v. The Central Park, North & East River Railroad Co., App’lt.
    
      (New York Superior Court,
    
    
      General Term,
    
    
      Filed November 3, 1890.)
    
    Negligence—Railroads.
    Where the driver of a horse car, in attempting to put off a trespasser, acts in such a way as to cause him to believe that bodily punishment is about to be inflicted upon him, although he offers no resistance, it is not contributory negligence for the trespasser to jump off- the wrong side of the car, and in front of an approaching car on the other track; but the railroad company is liable for the ill timed act of its agent.
    Appeal from judgment entered in favor of the plaintiff upon the verdict of a jury, and from order denying defendant’s motion upon the minutes for a new trial.
    
      Vanderjpoel, Ouming & Goodwin, for app’lt; Hays & Greenbaum, for resp’t.
   Freedman, J.

The action was brought by the plaintiff as administrator of his infant son, John Joseph Hogan, deceased, for damages by reason of the death of the said John Joseph Hogan, occasioned by the alleged negligent and wrongful acts of the defendant. At the trial, evidence was given upon which, if credited, the jury could find that defendant’s driver, in attempting to put the intestate off the car as a trespasser, acted in such a way as to cause the intestate to believe that bodily punishment was about to be inflicted upon him, although he offered no resistance, and that consequently, within the rule laid down in McCann v. Sixth Ave. R. R. Co., 117 N. Y., 505 ; 27 N. Y. State Rep., 834, it was not contributory negligence on the part of the intestate to jump off on the wrong side of the car on which he was stealing a ride, and to jump in front of the horses of a car coming in the opposite direction upon an adjoining track. In sucha case the defendant’s liability rests upon the rude and ill-timed act of the agent who attempts to put the trespasser off. This point was fairly submitted to the jury, and they were instructed to find for the defend-, ant in case they should come to the conclusion that the attempt of defendant’s driver to induce the intestate to leave the car involved no menace of bodily harm. Upon testimony which was conflicting the jury determined the fact in favor of the plaintiff, and their verdict in this respect cannot be disturbed. The case seems to be fully controlled by the decision in McCann v. Sixth Ave. R. R. Co. It is even a stronger case for the plaintiff, for while in the McCann case the car from which the plaintiff was caused to jump was standing still, the proof in this case is that the car from which the intestate was caused to jump was kept moving. In view of that decision none of the rulings of the learned judge who presided at the trial can be held to have been erroneous. The substance of the seventh request had already been charged, and consequently the refusal to charge otherwise than already charged constituted no error.

The j udgment and order should be affirmed, with costs.

Truax, J., concurs.  