
    Caroline Franklin, Respondent, v. The Third Avenue Railroad Company, Appellant.
    
      Inability of a railroad company for an assault upon a passenger by its conductor — evidence that a witness for the plaintiff had brought other actions against the railroad company.
    
    Under what circumstances a street railroad company is liable for .an unprovoked assault committed by a conductor in its employ upon a passenger,’ considered.
    The refusal to permit the defendant in an action for such assault to show, as affecting the credibility of the plaintiff’s husband, who was her principal witness and attorney- of record, that he had, as attorney, brought other actions against the defendant, does not constitute error, requiring the reversal of a judgment in favor of the plaintiff, where the husband’s hostility was made sufficiently obvious by other facts in the case.
    Appeal by the defendant, The Third Avenue 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 New York on the 27th day of January, 1900, upon the verdict of a jury for $500, and also from an order- entered in said clerk’s office on the 5th day of February, 1900, denying the defendant’s motion for a new trial made upon the minutes.
    
      Eugene Treadwell, for the appellant.
    
      Henry L. Franklin, for the respondent.
   Patterson, J.:

The substance of the- cause of action set forth in the complaint herein is found in the allegation that the conductor of the defendant’s car, in which the plaintiff was a passenger, committed an unprovoked assault and inflicted severe injuries upon her. The proof made on her’ behalf, fully sustained her allegation. On a serious conflict of evidence the jury found in her favor. The liability of the defendant is well settled. That the conductor. in assaulting a passenger. was not acting within the scope of delegated authority is an immaterial proposition. The defendant’s liability as a common carrier is complete, even for the willful misconduct of its servant-to any one under the protection of a carrier as á passenger. (Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588.)

On the trial the court sustained an objection to a question put to the plaintiff’s principal witness, who was her husband and also her attorney of record. This witness had testified in great detail to all the incidents of the occurrence out of which the cause of action arose and his testimony is a highly wrought account of gross brutality' and violence of the conductor to an unoffending woman. On his cross-examination the witness testified that he was the husband ■of the plaintiff and her attorney of record and that he was plaintiff in a s.uit brought against the defendant for personal injuries sustained by him on the occasion mentioned in the complaint in this action, and for physician’s bills for attendance upon his wife. That this witness was deeply interested in the. result of the trial of this action is obvious and his credibility was a matter for the consideration of the jury. The defendant’s counsel asked him the following questions : “ Q. You have been bringing actions, as attorney, against this railroad for some years, haven’t'you.? ” and “ Q. You, as attorney, have brought actions against this railroad company before ? ” and “ Q. You and Mr. Droege have tried cases against me before, haven’t you ? ” These questions were objected to and the objections were sustained and exceptions taken. The purpose of asking these questions was stated by counsel to be to test the credibility of the witness. While it is entirely competent to ascertain whether a witness is hostile to the party against whom he is called and to inquire concerning his feeling towards either party, yet “ the evidence to show the hostile feelings of a witness when it is alleged to exist should be direct and positive and not very remote and uncertain, for the reason, that the trial of the main issues in the case cannot be properly suspended to. make out the case of hostile feeling by mere circumstantial evidence from which such hostility or malice may or may not be inferred.” (Schultz v. Third Ave. R. R. Co., 89 N. Y. 250.)

There was abundant evidence in this case without adding to it to show that this witness was not friendly to the defendant and that all his feelings and interest were enlisted on the side of his wife and client. It cannot be inferred because a person called as a witness in a particular case has, in the pursuit of his employment as an attorney at law, brought other actions against the opposite party, that, therefore and as a necessary consequence he must entertain a feeling of malice or hostility such as would affect his credibility as a witness. Proof of that single fact offered for that purpose is far from being direct and positive. But in any view, the rejection of this testimony could no.t have affected the result of the case. There was sufficient'before the jury concerning this witness’ relation to the case and to the parties to lay bare his feelings towards the defendant. His hostility was manifest, nevertheless the jury believed him and the witnesses corroborating him.

The .judgment and order appealed from should be affirmed, with costs.

.Ingraham and McLaughlin, JJ., concurred.

Rumsey, J..

(concurring):

I concur fully in the opinion of .Mr. Justice Patterson, but it seems t.o me that some mention should be made of the exception to that portion of the charge of the court in which the jury were instructed that if the plaintiff was assaulted as she and her husband and her witnesses swear she was assaulted, she was entitled to recover-reasonable damages from the company, because the company was-responsible for the acts of its conductor of that character, committed as these acts are said to have been committed. The defendant-excepted to so much of the charge as told the jury that the defendant was. liable for the acts of the conductor committed as these were, said to have been committed. What the court said, however, in that connection was sustained by authority. The defendant was a. common carrier whose duty it was to carry Mrs. Franklin safely and to treat her respectfully and to protect her against any injury arising from the negligence or willful misconduct of its servants while engaged in performing the duty which it owed to her. (Stewart v. Brooklyn & Crosstown R. R. Co., 90 N. Y. 588 ; Palmeri v. Manhattan R. Co., 133 id. 265.) Within these cases the defendant was clearly liable for the assault if it was made, and the court was correct in so instructing the jury.

Van Brunt, P. J.:

I concur in result. I think it would have been error to exclude-, the questions had there not been other stronger evidence in the case upon the same point.

Judgment and order affirmed, with, costs.  