
    Konstantine Kosters, by Guardian, Respondent, v. The Brooklyn, Bath & West End Railroad Co., Appellant.
    (City Court of Brooklyn
    General Term,
    October, 1894.)
    In an action to recover damages for an alleged assault upon the plaintiff while a passenger on one of defendant’s cars by the conductor, the con- . ductor testified that plaintiff used abusive language to him, and struck at him with an iron wrench, and that he then struck plaintiff with his club. This was the only evidence as to provocation for the assault. The court charged that if the plaintiff assaulted or threatened' to assault the conductor, the latter was justified in assaulting the plaintiff, and refused to charge on request that, “If the plaintiff commenced the ■ altercation, and in the course of it addressed indecent and insulting language to the conductor, and language such as was calculated or likely to produce an assault, the verdict must be for defendant.” Held, that such refusal was not erroneous.
    Appeal from .judgment in favor of the plaintiff, entered upon a verdict for $1,000, and from an order denying a motion for a new trial.
    
      Morris c& Whitehouse, for appellant.
    
      Geo. W. Miller, for respondent.
   Yak- Wyok, J.

The plaintiff sued to recover damages for an alleged assault committed upon him while a passenger on defendant’s car by the conductor.

The only question for our consideration is whether the court erred in refusing to charge, at defendant’s request, that “ if the plaintiff commenced the altercation, and, in the course of it, addressed indecent and insulting language to the conductor, and language such as was calculated or likely to produce an assault, the verdict must be for defendant.” Assuming that this is a sound statement of law, under the authority of the prevailing opinion in Scott v. C. P., etc., R. Co., 53 Hun, 414 it seems to us that the court charged so much thereof as was applicable to the facts in this case. The plaintiff testified that the conductor, after he had paid his fare, demanded of him, at several different times, the payment of the same, and, without any provocation, save his refusal to pay his fare a second time, that the conductor clubbed him severely. The conductor testified that, at different times, he demanded the fare, which was not paid, and that plaintiff, while standing on the platform, used abusive language to him, after which he stepped from that platform to the platform of the adjoining car, when the plaintiff drew an iron wrench out of his pocket and struck at him; that he then took his eight-inch stick out of his pocket and struck the plaintiff. It is manifest from this testimony, if the conductor is to he believed, that his assault on plaintiff was not provoked by any insulting words, but by the threatened assault upon him by plaintiff with the wrench. The court charged that if the plaintiff assaulted or threatened to assault the conductor, the latter was justified in assaulting plaintiff. This testimony of the conductor is the only evidence that, before he assaulted the plaintiff, the latter used insulting language or threatened to assault the conductor. After examining the testimony, we see no reason to disturb the verdict.

The judgment and order should be affirmed, with costs.

Osbokne, J., concurs.

Judgment and order affirmed, with costs.  