
    Hewlett Sanford, Administrator, &c., of Gilbert Sanford, deceased, Plaintiff and Respondent v. The Eighth Avenue Railroad Company, Defendants and Appellants.
    1. In an action by an administrator, &c., of a person killed by being ejected from the cars of a railroad company, to recover damages for the wrong, the administrator is a competent witness in his own behalf.
    2. In such action, the facts that the intestate entered the car intending not to pay fare, and that he refused to pay fare or leave, and resisted the efforts made to put him off the car, do not of themselves necessarily constitute that concurring negligence or fault which defeats a recovery.
    3. If there is no actual negligence of the decedent, at the time of his being put off, to which his injury and death may in fact be imputed, the company is liable.
    (Before Bosworth, Oh. J., and Pierbepont and Moncrief, J. J.)
    Heard May 17,
    decided June 30, 1860.
    Appeal by the defendants from a jiidgment against them, and from an order denying a motion made by them for a new trial.
    The action was tried before Bosworth, Gh. J., and a jury, on the 16th of November, 1858.
    This action is based on the allegation that the death of Gilbert Sanford was caused by the wrongful act and negligence of the defendants, and it is brought by H. Sanford, his administrator, to recover damages therefor.
    There was evidence to the effect, that on the 30th of December, 1855, the decedent, at the corner of Church and Chamber streets, got on one of the cars of the defendants; that he wanted to take the reins and drive, but this not being acceded to by the driver, he said to the driver, “1 won’t pay any fare; I came up last night and was not carried through;” he then went inside.
    Soon after this the conductor proceeded through the cars to collect the fare. He came to the decedent and asked him for his fare; he refused to pay, saying he had paid his fare the night before, but had not been carried through because of the snow. The conductor said he must pay or leave the car. The conductor passed on collecting fares, and then came back to decedent and told him that he was accountable to the company for the fare of every person that rode in the car; that he must have the fare or eject him.
    
    The decedent refused to pay his fare or to leave the car.
    The conductor rung the bell, and the speed of the car, as some witnesses testified, was immediately “reduced” or “ checked.”
    Decedent rose at the conductor, and the two clenched and went toward the forepart of the car, both clenched.
    The conductor went out of the door of the car first, and backwards; the car was well filled, and it was with considerable difficulty that a passenger worked his way in from the rear platform.
    Decedent was a taller and stouter man than the conductor.
    There is a conflict of evidence, as to whether “ the conductor pushed Sanford off” or whether the conductor went off first, or as to whether one or three persons went off the platform.
    There had been a heavy fall of snow the day previous; it had been scraped off the track by a snow-plow, and was piled up each side of the track, perhaps two feet high. There was a space between the projection of the car and the bank of snow; and it is alleged that decedent fell and rolled down between the car and snow, and was crushed. When found, he lay with his head up the street, (the direction in which the car was moving,) and his legs on the track. Decedent died on the fourteenth day after the occurrence. The' evidence itself is here omitted, a statement of it not being material to an understanding of the charge. The view of its effect, taken by the court at general term, appears in the following opinions. A motion was made for a non-suit when the plaintiff rested, and also when the testimony was closed, which was denied, and defendants excepted. The defendants requested the court to charge eight several propositions, five of which are repeated in the charge, and the other three are as follows, viz :
    “ VI. That, after the deceased refused to pay his fare, the conductor might then employ so much force.as might be necessary to effect the removal of the deceased, at the same time doing no unnecessary injury.
    “VII. If the deceased refused to pay his fare, and resisted, and injury happened in consequence of resistance, it was an injury for which the company is not responsible, for it was a result attributable to his own wrongful conduct.
    “VIII. If the deceased was injured by the use of unnecessary force, used to effect what the company had a right to do, then the conductor, and not the company, is liable.” The charge was as follows, viz.:
    “ This action is brought to recover damages, on the allegation that the death of Gilbert Sanford was caused by the wrongful act,' neglect, or default of the defendants. Prior to the 13th of December, 1847, no action of this kind could be maintained. If a person, injured by the wrongful act, neglect or default of another, died from such injury, all liability of the party doing the wrong died with the person who was the subject of the wrong. In other words, the cause of action was personal to the injured party. No one except him could bring it. When he died, the cause of action was at an end. An act was passed on the 13th of December, 1847, which provides in substance, that when one person is injured by the wrongful act, neglect or default of another, under such circumstances, that the person so injured could maintain an action1 and recover damages therefor, if living, then the person who would have been liable, if death had not ensued, shall be liable, even if death ensues, in an action to be brought by and in the names of the representatives of such deceased person. In every such action the jury may give such damages as they shall deem a fair and just compensation, not exceeding §5,000, with reference to the pecuniary injury resulting from such death to the wife and next of kin of such deceased person.
    “The rule, therefore, in respect to the question whether the defendant is liable, is precisely the same it would be if Gilbert Sanford were living and was prosecuting - this action to recover damages for a mere injury to himself. If he could not, on the facts proved, maintain an action if he had been hurt but not killed, this plaintiff cannot.
    “ The general rule is clear and well settled, that when a person is injured he cannot recover, although the person who injured him was negligent, if his own negligence contributed to his being injured. The question is not, which of the two is most to blame when both are in fault, but the question is, ‘Did the negligence of the person injured concur in causing or producing the injury?’ If it did, the other party is not liable. In such a case the law will not make one of the two persons in fault pay to the person injured, damages caused as well by his own fault as that of the other, nor attempt to speculate as to the degree that each was in fault and make each bear thé loss in the proportion in which he was guilty of the wrong that produced it. A person injured, in order to recover, must not, by his own negligence or default, have contributed to his own injury. If he did, he cannot recover.
    “ The deceased was ejected from the defendants’ car because he refused to pay his fare; he refused to pay it on the ground that on the previous day he paid the regular fare and was not carried to the place at which he wished to leave, on account of the track having been rendered impassable by a heavy snow. The conductor told him that with the occurrence of the previous day he had nothing to do, and if he would not pay his fare he must leave the car. On being applied to a second time, the deceased refused to pay his fare, and, as I understand the evidence, insisted on his right and purpose to ride in the car without paying his fare. The conductor had a right, under • such circumstances, to eject him from the car. I am asked to charge the following propositions :
    “I. If the deceased entered the car with the preconceived intention of not paying his fare, he,was an intruder, and a wrongdoer from the outset, and the relation of passenger and carrier was never established.
    “*II. If the relation of passenger and carrier never became established between deceased and defendants, then the company are not liable.
    “III. That if the deceased entered the car with the intention of compelling the defendants to carry him without any charge, this was an act of negligence on his part, primarily contributing to the accident.
    “IV. That conceding the deceased acquired the right of a passenger, that was forfeited when he refused to pay his fare.
    “ I decline to charge you in the terms of these requests, or otherwise, in relation to the matters embraced in them, than I shall now proceed to state, and in relation to these matters I charge you as follows :
    “ From the moment the deceased refused to pay his fare, or to leave, he was in fault. Had he d,one his duty, there would have been no occasion to complain that he was injured by being ejected from the car. Notwithstanding this, it was the duty of the conductor to use no more force or violence than was necessary to eject him. He was authorized to use force enough to put the passenger out, and to overcome all the resistance he made, if any, to the efforts employed to remove him.
    “ It is proper to say, and a jury should bear in mind, that when a person enters a car and refuses to payhis fare, or to leave the car, and it becomes necessary to eject him because he will not go out unless put out, the conduct of the conductor, who removes him, as he is acting in the line of his duty, should not be scanned over nicely, and' his "principal should not be held liable, unless the jury is clearly satisfied that there was a want of prudence and care on the part of the conductor, to which the injury that followed may be attributed.
    “If when the conductor told the passenger in this case, that he must put him out, or should- put him out, the passenger rose and put himself in a posture which justified an apprehension that he intended to strike the conductor if he attempted to eject him, the conductor was justified in hurrying the passenger out as rapidly as could be done, without endangering in any way the safety of the passenger.
    “There is testimony which tends to show that the conductor, in the scuffle, went off the car into the snow as well as the deceased. The testimony of Mr. Dunning, on the other hand, is to the effect that the conductor, while holding to the dashboard with one hand, pushed the deceased off with the other. The driver says that a third person standing on the front platform, was pushed off first by the conductor coming against him; that the conductor went off next, drawing Sanford off with him.
    “The point which I deem quite material, involves the question at what rate of speed was the car going when Mr. Sanford was put off? If a conductor attempts to eject a passenger because he will not pay his fare, he has no right to thrust him off when the car is going at a rate of speed which of itself would make such an act dangerous to life or limb, or the bodily health. To persist in an- attempt to put him off when the act of stepping off would be dangerous, merely on account of the rate of speed at which the car was moving, would be an act of negligence, for the consequences of which the defendants would be liable.
    “ There is evidence' that tends to show that before attempting to put Mr. Sanford out, the conductor rung the bell and the speed of the car was slackened; at what precise rate of speed the car was moving at the time Mr. Sanford was put off, is not very clear. The evidence shows that the snow was heaped up on each side of the track, and the effect which this fact may justly have upon the question, whether the conductor ejected Mr. Sanford in a careless and imprudent manner, which caused the injury, should be considered. I am also asked to charge the following proposition:
    “V. That if the conductor, in the execution of the company’s directions to remove any one from the cars who declined to pay fare, used unnecessary force, and wantonly injured the deceased, the defendants are not liable for such malicious excess.
    “ I decline to charge you as to this proposition or otherwise in relation to the matters embraced in the same than I have already charged, further than to say that I do not think the evidence justifies the conclusion that anything which the conductor did was done maliciously or with a design to injure Gilbert Sanford, or supposing that he would be injured by being ejected as he was ejected.
    “ The court further charged; the question of fact to which the case is reduced is this : Bid the conductor, Mr. Sanford being in the wrong by refusing to pay his fare or to leave the car, put him out of the car in a negligent and imprudent manner, so that by the negligent and imprudent manner in which Mr. Sanford was ejected he received the injuries of which he died, without himself being guilty of negligent or imprudent conduct at the time he was actually put off, which contributed to produce the injury ? If the evidence satisfies you that this question should be answered in the affirmative, the defendants are liable. If it should be answered in the negative, the defendants are not liable.
    “ You are not justified in finding the conductor negligent and Mr. Sanford free from negligence in this matter merely because the latter was injured. A person may jump off a car in a rash manner or be put off in a careless manner, and still escape unhurt. •
    “ And it may so happen, that a person is put off under circumstances which, according to ordinary -experience, would not be supposed to be at all dangerous, and nevertheless be injured.
    “ You will, therefore, determine first, whether there was any negligence or want of proper precautions on the part of the conductor in ejecting Mr. Sanford from the car. If there was not, the defendants are not liable; if there was, the next question is, was Hr. Sanford, while the conductor was putting him off, also guilty of negligence or misconduct which concurred with the conductor’s negligence or want of care in causing the injury ? If Mr. Sanford was guilty of such negligence or misconduct, the defendants are not liable. If he was not guilty of such negligence or misconduct, the defendants are liable, provided you also find that he was injured by the conductor’s negligence or want of proper precautions in ejecting him.”
    [The residue of the charge relates to the question of damages, and is omitted.]
    The defendants then and there excepted to the refusal of the judge to charge as fifthly requested, and excepted to the charge as made in respect to the matter thereof.
    The defendants also excepted to that part of the charge which is to the effect that if Sanford received the injuries of which he died, by reason of the negligent and imprudent manner in which he was ejected, without himself being guilty of negligence or imprudent conduct, at the time he was actually put off, which contributed to produce the injury, the defendants were liable.
    The defendants also excepted to tlie charge generally in so far as it did not conform to the said requests to charge.
    The jury having retired, returned into court with a verdict for the plaintiff for $4,250.
    The plaintiff was allowed to be examined as a witness on the trial, against the objection and exception of the defendants.
    The defendants moved at special term before Mr. Justice Pierhepont for a new trial, which was denied. Prom the order denying it, and from the judgment entered on the verdict, the defendants appealed to the general term.
    
      A. J. Vanderpoel and John McKeon, for Appellants.
    I. In the case of one who is a trespasser, or who, being on the cars, has no right to be there, no duty exists requiring care or prudence on the part of the carrier; he is only protected against wilful or wanton injuries, and as to those he must seek his remedy against the conductor, and cannot complain of negligence. He is not protected against the negligence of the company or- its servants. A man is under no obligation to be cautious and circumspect toward a wrongdoer.
    II. Looking at the charge of the court, and the refusal to charge in accordance with the third request, we must infer that this distinction between one- rightfully in the place where the accident happened, and a trespasser, was not acknowledged or was overlooked. While charging the jury that the evidence did not justify the inference that the injury was wilful or wanton, that the deceased was in fault from the moment he refused to pay his fare, or to leave, and that the conductor had a right to eject him; yet the case was submitted to the jury as one of simple negligence or imprudence on the part of the conductor. We infer that the court limited the effect of the fact, that the decedent was unlawfully in the car, as merely giving the right to eject him, and as not having any influence on the question of negligence; and that, had there not been an error in this respect, the motion to dismiss the complaint would have been granted. (Wilbrand v. Eighth Av. R. R., 3 Bosworth, 314; 15 N. Y. 382, 383; 18 N. Y. 248.)
    
      a. The term “ negligence ” signifies an omission of duty toward those to whom it is owing. This duty is relative, and there can be no such thing as negligence, in the legal sense of the term, where relative duties do not exist between the parties. There is no rule of law which enjoins care and caution toward a wrongdoer. (Tonawanda Co. v. Munger, 5 Denio, 266, 267; Carroll v. New Haven R. R. Co., 1 Duer, 583; Nolan v. Western Railroad Co., 15 N. Y. Rep. 449.)
    
      b. Negligence is, strictly, wowfeasance and not mofeas-, anee. There is no purpose to do a wrongful act, but an absence of proper attention, .care, or skill. Gardner v. 
      Heartt, 3 Denio, 236; Tonawanda R. R. Co. v. Munger, 5 Denio, 266, 267.)
    III. If mere negligence on the part of a plaintiff, contributing to the injury, is sufficient to debar him from a right to recover, because the law declares that it will not punish either where it is the common fault of the parties, but will leave each to sustain the consequences of his own folly—a fortiori—a plaintiff should not be allowed to sustain an action where he wilfully invites the accident by getting on the car, not intending to pay—by remaining in the car and refusing to leave when required, and after an opportunity was afforded him to do so—and by resisting his removal.
    
      a. The decedent invited violence, and took the risk of the consequences of a forcible removal. *
    
      b. It is not suggested that the decedent, while being put off, repented of his wrong, or expressed a desire or willingness to leave the car.
    
      c. It can probably be said with accuracy, that a trespasser is always guilty of negligence which contributes to the injury.
    
      d. The court should have charged the jury in accordance with the proposition contained in the third request.
    IY. The foregoing propositions are alike applicable to - the exception to that part of the charge, which was to the effect that the defendants were liable, if the decedent received the injuries of which he died, by reason of the negligent and imprudent manner in which he was ejected from the car, without being himself guilty of negligence, at the time he was actually put off, which contributed to the injury.
    
      a. The manner in which the proposition is stated excluded from the consideration of the jury the primary and proximate negligence of decedent, in refusing to pay his fare. As there stated, it only affected the right to eject, and at the same time applied the rule of negligence in the same manner as if each party was rightfully in the discharge of his duties.
    
      £. Although wholly ignoring the fact that decedent entered the car with" the preconceived intention not to pay his fare, yet the court put the case to the jury squarely—that decedent was a wrongdoer by refusing to leave the car—that he had no right to remain there—that notwithstanding this, decedent must have been guilty of some other negligence or misconduct, “ at the time he was actuallyput off,” or “ while the conductor was putting him off,” which contributed to produce the injury.
    . Y. The plaintiff (administrator) was incompetent as a witness.
    The rule being in derogation of common law, must be strictly construed. Section 399 of Code covers the case of parties for whose personal benefit suit is brought.
    YI. The verdict is against the evidence.
    
      JB. G. Hitchings and H. B Cowles, for Respondent.
    I. The defendants insist that if the deceased entered the car with the intention of compelling- the defendants- to carry him without any charge, this was an act of negligence on his part primarily contributing to the accident. (3d request to charge.) But the judge’s refusal to charge in this respect was not erroneous, and his charge was quite as favorable to the defendants as legal rules would admit.
    1. An intention not to pay fare, or a refusal to pay fare, was, in no proper sense, or within the spirit of the rule, a a negligence which contributed to the accident or the injury. The accident or injury was caused entirely by the neglect of obvious precautions against danger, in the act of ejecting the deceased. His refusal to pay fare may have been the cause, or even the justification of the act of removal, but it did not absolve the defendants from their obvious legal duty to use such care and precautions as were necessary for the safety of the deceased whilst performing the act of removal.
    2. This so-called negligence was entirely too remote in its relation to the accident or injury, to be regarded as co-operating with the negligence of the defendants to cause the injury.
    Negligence on the part of the plaintiff, which is not proximate, but remote, and not immediately contributing to the accident, does not prevent a recovery for the negligence of' the defendants.
    The negligence of the plaintiff, which will prevent a recovery, must occur at the same time with that of the defendants. (Trow v. The Vermont Central R. R. Co., 24 Verm. R. 487 ; Beers v. The Housatonic R. R. Co., 19 Conn. R. 566; Kerwhacker v. The Cleveland and Cincinnati R. R., 3 Ohio R. [new series] 172.)
    The rule is also stated thus: “If there’were negligence on the part of the plaintiff, yet, if at the time when the injury was committed it might have been avoided by the defendants, by the exercise of reasonable care and prudence, an action will lie for the injury.” (Shelford on Railways, vol. 2, p. 733; Trow v. The Vermont C. R. R., 24 Verm. R. 487; Kerwhacker v. The Cleveland and Cincinnati R. R. Co., 3 Ohio R. [new series] 172.)
    In the last case, the following propositions, amongst others, were laid down by the Supreme Court of Ohio:
    1st. “ The liability to make reparation for injuries by negligence, is founded upon an original "moral duty, enjoined upon every person, so to conduct himself, or exercise his own rights, as not to injure another.”
    2d. “ The mere fact that one person is in the wrong, does not necessarily discharge another from the due observance of proper care towards him, or the duty of so exercising his own rights as .not to do him any unnecessary injury.”
    II. Although, in general, the master is not liable for the forcible acts of his servants, unless he directs them, because they are held to be without the scope of his employment, yet, as in this case, the removal was in pursuance of the directions of the company, and they committed the performance of the act to the conductor—an act in its nature forcible, and calculated to excite the passions—he was acting within the scope of his authority throughout, and the company are liable for his acts, even if he used more force than was necessary. (Smith, Master and Servant,’ Law Library, [new series] vol. 59, p. 130—title, “In cases of torts, civiliter,” p. 130 ; Angel & Ames on Corporations, § 310 ; Redfield on Railways, p. 381, § 169 ; Phila. & R. R. Co. v. Derby, 14 How. U. S. R. 468 ; Phila., Wilmington, &c., R. R. Co. v. Quigley, 21 How. U. S. R. 202; Moore v. Fitchburgh R. R. Co., 4 Gray’s Mass. R. 465.)
   Pierrepont, J

.-—-Two questions are presented by this appeal:

First. Under the law of the case, as stated by the court to the jury, was the verdict against the weight of evidence ?

Second. Does the case disclose any errors in the rulings of the judge below, to which the defendants excepted?

It appears, from the evidence, that Gilbert Sanford, the deceased, on the 30th of December, 1855, stepped upon the defendants’ car, which was on its route from Chambers street to 30th street, in this city, and at once announced that he would not pay fare, saying : “ I came up last night and was not carried through;” that the car was crowded with passengers, many of whom were standing; that the conductor told him that he must pay fare or leave the car; that it was the duty of the conductor to collect fare from every passenger; that the conductor tried to collect it from Sanford, and returned to him more than once for that purpose; that Sanford became “very turbulent,” “rose at the conductor,” “muttered something,” and placed himself, in an attitude as though about to strike the conductor; that the conductor took Sanford by the collar, rung the bell for the driver to stop; that the driver put down the brakes, and so stopped the speed of the car; that it was just in movement when the conductor pulled the deceased off the front platform; that he fell against the sloping snow, when he was in some manner so bruised and injured that he died in consequence:

I think that the charge of the judge made a just and fair presentation of the case to the jury; and if so, then the verdict is against the law of the case, against the weight of evidence, and against the scope and meaning of the charge of the court.

The court charged the jury, as matter of law, that “ Sanford was in the wrong by refusing to pay his fare or to leave the car;” and, that if he was guilty of negligent or imprudent conduct at the time he was put off, which contributed to produce the injury, that the defendants were not liable.

The following authorities may be cited in support of this proposition, and I think it is well established law: (Button v. The Hudson R. R., 18 N. Y. R. 248; Rathbun v. Payne, 19 Wend. 399 ; Harlow v. Humiston, 6 Cowen, 189 ; Holbrook v. Utica & S. R. R. Co., 2 Ker. 236; Butterfield v. Forrester, 11 East. 60; Dowell v. The Steam Nav. Co., 5 Ellis & Bl. 195.)

The evidence in the printed case hardly leaves room to doubt, that the deceased was guilty of negligent and imprudent conduct which contributed to produce the injury at the time it happened. The court was requested to charge :

“That if the conductor, in the execution of the company’s directions to remove any one from the cars who declined to pay fare, used unnecessary force, and wantonly injured the deceased, the defendants are not liable for such malicious excess.”

The court declined so to charge, but said : “ I do not think the evidence justifies the conclusion that anything which the conductor did was. done maliciously, or with a design to injure Gilbert Sanford, or supposing that he would be injured-by being ejected as he was ejected.” The evidence clearly justifies these observations of the court, but does not justify the finding of the jury.

It is true as a proposition of law, that the company would not be liable for the malicious excess and wanton injury of one of their conductors in ejecting a passenger who refused to pay fare. (Vanderbilt v. Richmond Turnpike Co., 2 Comst. 479 ; Wright v. Wilcox, 19 Wend. 343 ; Weed v. The Panama R. R. Co., 17 N. Y. R. 362; Story on Agency, sec. 456 to 462; Phil. R. R. Co. v. Derby, 14 How. U. S. 468; Crocker v. New London R. R. Co., 24 Conn. 249.) Under the circumstances of this case, as presented, I think that the refusal as modified was not error; but I am of opinion, that to allow this verdict to stand upon the whole case which this appeal presents, would be to sanction the lawless invasion of others’ rights, and to censure the fidelity of the employee in the honest discharge of a most unpleasant and thankless duty. As the verdict is both against the weight of evidence, and against the law as charged by the court, the verdict must' be set aside and a new trial ordered, with costs to abide the event.

Bosworth, Ch. J.

—The court charged {inter alia) that the conductor had a right, under the circumstances proved, to eject the deceased from the car. That the latter was in fault in refusing to leave the car. That the conductor was authorized to use force enough to put him out.

That, in his opinion, the evidence did not justify the conclusion that the conductor acted maliciously, or with a design to injure Gilbert Sanford, or supposing that he would be injured in being- ejected as he was ejected.

Assuming these instructions to be correct (and the defendant is entitled to have them so regarded for all the purposes of the present appeal), then it must be deemed to be true, that the conductor was in the right in attempting to remove the deceased, and the latter was in the wrong in resisting the efforts to effect his expulsion.

But the judge also charged, that if «there was any negligence or want of proper precautions, on the ‘part of the conductor, in ejecting Mr. Sanford from the car, which caused his death, the defendants were liable, provided the deceased, while the conductor was putting him off, was not guilty of any negligence or misconduct which concurred with the conductor’s negligence or want of care, in causing the injury.

This part of the charge affirms, that although the conductor had a right to eject the deceased, and although the latter was in fault to such extent as to justify the use of sufficient force to remove him, and was therefore wrong in resisting, and was in fault up to the instant of his injury, yet if such fault involved, at the time of his being ejected, no negligence or misconduct which contributed to his injury, the defendants are liable.

The defendants excepted to this part of the charge.

It seems to me, that when two persons are engaged in a line of action, at a particular time, which causes injury to one, and in all of said action the latter is in fault and the former is negligent and only that, the conclusion of law is, that the misconduct or fault of each contributed to his injury.

It is difficult to conceive on what theory or hypothesis it can be affirmed, or found, that the negligence of the deceased was not as truly a proximate cause of his injury as that of the conductor. If there was negligence of the conductor in removing the deceased, for the reason that the car was moving at such a rate of speed as to make the removal dangerous for that cause, there was, at the same time, operative and co-operating misconduct on the part of the deceased, in making the resistance which he offered, until the completion of the act which placed him in the perilous position that caused his death.

As the case was put to the jury, it was not suggested that there was “ any negligence or want of proper precaution, on the part of the conductor, in ejecting Mr. Sanford from the car,” unless it should be found that the car was moving at a rate of speed which of itself would make the act of ejecting him “ dangerous to life or limb or bodily health.”

In this connection, the judge expressed the opinion that the evidence did not justify the conclusion that the conductor acted maliciously, or supposed that Mr. Sanford would be injured by being ejected, or designed to injure him.

On this theory, the only negligence or misconduct of the conductor was in not stopping the car, or reducing its motion to such extent, that no danger could result from its being in motion. There was then, or may have been, in this view, fault on the part of the conductor (and, it may . be said, the jury have found,) that in this respect the conductor was in fault. But, during all this time, the deceased was also in fault, and actively so, up to the moment he was placed in the perilous position which made his injury unavoidable. This persistent and continuously operative, fault was concurring to place him in the position of actual danger, and it is difficult to see how a jury could say that the deceased was not guilty, while the conductor was putting him off, of any negligence or misconduct which contributed to his injury.

In the case of Hegan v. The Eighth Avenue R. R. Co., (15 N. Y. R. 383,) Denio, Ch. J., said, that the defendants “have no right to drive immoderately, and it is in the highest degree dangerous for them to do so. Still, if they offend in that respect, and the driver of a common carriage will negligently or wilfully place himself, or remain in their path, he has no reason to claim damages.”

Assuming, that although the conductor had a right to eject Mr. Sanford, yet, that it was misconduct to do it while the car was going at its then rate of speed, still it is true that Mr. Sanford wilfully and without right, insisted on being carried in the car without paying fare, and in his own wrong wilfully resisted the efforts made to remove him. The distinction between this case and the one last supposed, if there be any, is hardly discernible.

In this case the deceased was in fault from the time of entering the car until he was put out. Even assuming that he had persuaded himself that he had a right to insist on being carried, as he had paid his fare the previous night and was obliged to leave the cars because they could not be drawn through the snow, yet, in judgment of law he was in the wrong in not leaving when ordered to do so, and continued in the wrong in resisting the efforts made to remove him.

The. conductor was right in removing him, and in using sufficient force for the purpose and to overcome all resistance that was offered.

The deceased was injured by the movement of the car before he had been placed or had got beyond its reach, and the fault of the conductor consisted in not entirely stopping the car, or in not reducing in a greater degree its rate of speed, and, perhaps, in ejecting him from the front platform without'first stopping the car.

On such a state of facts, it is a case of misconduct or want of care on the part of the conductor, and only that, -.and concurring active wrong on the part of the deceased, which contributes to produce the injury. At all events, there seem to be no materials to uphold a finding that the deceased, while the conductor was putting him off, was not guilty of any negligence or misconduct which concurred with that of the conductor to cause his injury.

The' rule obtaining in the case of one person removing another from his premises, who refuses to leave upon request, and contrary to his duty, viz : that if more force be used than is required to effect the removal and overcome the resistance offered, and the person removed is injured, that he may recover for such injuries as were produced by the excess of force employed—is not applicable to a case like the present.

The part of the charge now under consideration, does not involve the question of the company’s liability for injuries resulting from the use of unnecessary force.

Nor is the position of these parties like that of two persons, one of whom assaults the other, and the latter— instead of using only so much force as is necessary for his personal protection, and desisting from further violence when he has disarmed the aggressor—proceeds, unnecessarily, to injure him. (Elliott v. Brown, 2 Wend. 497.)

It being settled law, that a party in fault shall not recover compensation for an injury which would not have been inflicted upon him without the concurrence of such-fault ; and as in the view most unfavorable to the defendants, there was only a want of proper precaution in not having stopped the car before the conductor ejected the deceased; and as the deceased was in fault in not leaving the car when requested, and also in resisting the efforts made to remove him; and as the injury resulted from his being ejected in a manner in respect to which he was, at the time, in fault as well as the conductor—it is an unsatisfactory conclusion, upon such evidence, that his own misconduct did not concur with the conductor’s, to cause his-injury.

This view is not in conflict with the proposition, that if the conductor used unnecessary force, and by reason of that the deceased was- injured, the company may be liable.

If, in this instance, the deceased had offered to leave, or had made no resistance, but, "on the contrary, had directed his efforts to keep himself from being harmed by being removed, and, notwithstanding that, had been injured, the case would be different.

Conceding the rule stated to the jury to-be correct, on circumstances being proved which would admit of its application, and I think it is, still the evidence given does not satisfactorily establish that the deceased’s misconduct (which is undeniable), did not contribute to his injury.

The case is one in which the ends of justice require that a new trial should be granted.

The only question is, on what terms. The costs of the appeal should be costs in the cause, and abide the event, as we reverse the order denying the motion for a new trial.

The question of the negligence or misconduct of each party, was one of mere fact, and exclusively "within the province of the jury. If there was any evidence that the deceased did not resist the conductor, I am not prepared to say it was the duty of the court to take the case" from the- jury, although such evidence may have been very slight.

Still, in the view now taken of the evidence, upon a careful review of the whole, there was not enough to warrant the jury in finding, as they may have done, and as I think they have done, that there was no negligence of the deceased, at the time of his removal, which contributed to his injury.

If this view be correct, the costs of the former trial should abide the event. The verdict is against the charge of the court, as well as against evidence. (Knapp v. Curtis & Root, 9 Wend. 60.)

Moncbief J.—.Concurred in this opinion.

New trial ordered, 
      
       On appeal, the Court of Appeals reversed the order and affirmed the judgment of the special term. (23 N. Y. R. 343.)
     