
    JACOB COHEN, Plaintiff, v. DRY DOCK, EAST BROADWAY, AND BATTERY RAILROAD COMPANY, Defendant.
    
      Gollision Oase.
    
    I. NEGLIGENCE OR WILLFULNESS.
    1. The plaintiff, driving a light vehicle, was obstructed in crossing the track of a horse-car railroad by a blockade of trucks, so that he was obliged to stop with the rear part of his hind-wheels on the track, and while in this position, a car approached, the driver of which, after waiting a moment or two, told the plaintiff to “ get off the track, ” and the plaintiff asked him to wait until the trucks moved ; promising then to move, whereupon the car-driver said, “Damn you 1 if you don’t get off here; lamíate; I will get you off some way or other;” to which the plaintiff replied, “You, wait a moment; I guess the trucks are moving, and I may go.” The trucks started, and as the plaintiff prepared to move on, the driver of the car started his horses, and the platform of the car hit or touched the hind wheel of the plaintiff’s vehicle, and overturned it, and caused the personal injuries to the plaintiff complained of.
    Held,
    1. A willful act was not necessarily established by the evidence.
    
      (a) The car-driver may have attempted to pass either without hitting the vehicle or by shoving it around out of his way and the hitting, or the force of the blow may have been an error of judgment, in measuring the distance.
    
    (1.) The language used by the driver does not necesa/rily indicate willfulness and malice.
    
      (a) Dismissal of the complaint held ebbob.
    (2.) Isaacs v. Third Avenue R. R. Co., 47 N. Y. 122, distinguished.
    Before Curtis and Sedgwiok, JJ.
    
      Decided February 7, 1876.
    
      Exceptions heard at general term.
    The action is to recover damages for personal injuries alleged to have been sustained by reason of the negligence of defendant’s servant. The facts as to the injury are stated in the opinion. At the trial the court dismissed the complaint, to which the plaintiff’s counsel excepted. The court directed the exception to be heard in the first instance at the general term, and suspended judgment in the meantime.
    The facts are stated in the opinion.
    
      Julius Lipman, attorney, and of counsel for plaintiff, urged:
    I. The car driver’s act came within the scope of his employment. What is the scope of the driver’s employment? Why, to drive the car—only that and nothing more, and if he drives it unskillfully, and even maliciously, the plaintiff submits it is “ within the scope of his employment.”
    II. In this case the driver did not intentionally or willfully commit the injury. The testimony shows that he stopped his car within a safe distance of the buggy, and shouted to the plaintiff to get off the track. The plaintiff said he would so soon as the wagons moved. After waiting a little, the driver got impatient, shouted he was “late,” and swore a little. Then the trucks began to move, and the driver let go the brake and drove on. The presumption and fair inference is that the driver thought the wheels of the buggy would be sufficiently off the track when the car reached it to pass clear, but made a miscalculation. In this view the act was neither willful nor unlawful, but was within the fair scope of his authority. He had the full command and charge of the car and horses. He had the command and management of them for a lawful purpose. Was responsible to the defendants for his acts, and again he labored under the responsibility to the defendants if he did not reach the termination of his route within the prescribed time. He was not engaged in any unlawful act or employment, and the occurrence took place in the course of that employment, and arose out of it. The plaintiff was not a passenger in the defendant’s car. He was using the public highway.
    III. Railway companies must run their trains with reference to persons who may be rightfully upon the streets used by their roads (Kansas Pacific R. R. Co. v. Pointer, 9 Raus C. 20 ; 1872). “Exemplary damages may be awarded against a railway company for an injury occurring through the gross negligence or drunkenness of its servants” (Peale v. Railroad Co., Dillon [ U. S. Cir. Ct.] 568 ; 1871). Railroad companies are responsible in exemplary damages for the negligent and wrongful acts of their agents or employees (New Orleans, Jackson, and Great Northern R. R. Co. v. Bailey, 40 Miss. 895 ; 1866). A driver is acting in the line of his duty in helping a child or infirm person on or off the car, and the company is liable for the negligence of a driver in this respect (Drew v. Sixth Av. R. R. Co., 1 Abb. Ct. of Appeals, Dec. 556; 26 N. Y. 49). Where the driver is notified by a passenger to stop the car, and does so partially, and then starts on again, without notice, he is chargeable with negligence (Nichols v. Sixth Av. R. R. Co., 38 N. Y. 131). To entitle a passenger to recover against the carrier for being pushed off the platform of a street car, it must appear that an employee of the railway company did the wrongful act (Pesley v. Third Av. R. R. Co., 1 Jones & Spencer, 406 ; 1871). The driver of a street car having the right to put a person off the car, the company will be liable for his acts in doing so, even if his act should be malicious and willful (Meyer v. Second Av. R. R. Co., 8 Bosworth, N. Y. 305; 1861).
    
      IY. All the authorities cited in the case of Isaacs v. Third Avenue Railroad Company (47 N. Y. 122), do not conflict with the general proposition above stated ; they only establish the general proposition, that “for willful trespass by its servant, defendant is not liable.” The plaintiff does not dispute it; but, in this case, he ■maintains there was no willful trespass.
    V. There was a question of fact to be determined, •and he had no power to assume the fact in one way or the other ; it was the province of the jury (Thrings v. Central Park R. R. Co., 7 Robt. 616 ; Murray v. New York Central R. R. Co., 4 Keyes, 274 ; Deys v. Same, 34 N. Y. 9 ; Ernst v. Hudson River R. R. Co., 35 N. Y. 9 ; Schwerin v. McKie, 5 Rob. 304 ; Wolfkiel v. Sixth Avenue R. R. Co., 38 N. Y. 49; Renwick v. New York Central R. R. Co., 36 N. Y. 132; Copkendal v. Eaton, 37 How. 438 ; 55 Barb. 158; Brouhard v. Rensselaer & Saratoga R. R. Co., 32 Barb.; 1865 ; 1860 ; Central R. R. Co. v. Moore, 4 Zabriskie, N. J. 284 ; 1854).
    
      Robinson & Scribner, attorneys, and/. M. Scribner, of counsel, for defendant, urged:
    I. The only question involved in this case is : Can a master be held liable for the willful, intentional, and malicious act of his ■servant, without proof that the act was authorized or subsequently ratified and adopted by the master % The ¡authorities are so numerous and positive, against the liability of the master in such cases that it seems almost unnecessary for defendant to do more than to submit to the court the testimony of the plaintiff and his witnesses, and ask for judgment. The case is too plain for ¡any argument. All the cases agree that a master is not liable for the willful mischief of his servant, though he be at the time in other respects engaged in the service of the former (1 Chit. Pl. 69 ; McManus v. Cricket, 1 East, 106 ; Wright v. Wilcox, 19 Wend. 343; Vanderbilt v. Richmond Turnpike Co., 2 Comst. 479 ; Clark v. Metropolitan Bank, 3 Duer, 241 ; Hibbard v. N. Y. and Erie R. R. Co., 15 N. Y. 467; Mali v. Lord, 39 Id. 383; Frazer v. Freeman, 43 Id. 566 ; Wells v. N. Y. Central R. R. Co., 24 Id., cited from page 184; Isaacs v. Third Avenue R. R. Co., 47 Id. 122; Huges v. N. Y. & N. H. R. R. Co., 4 Jones & Spencer, 36 Superior Ct. Rep. 222 ; Courtney v. Baker, 37 Ib. 249 ; Ryan v. Hudson River R. R. Co., 33 Ib. 137 ; Congreve v. Ogden, 49 N. Y. 257 ; Poulton v. London & S. W. Railway Co., 2 Law Rep. [Q. B.] 534 ; Roe v. Birkenhead, &c., R. R. Co., 21 Law Rep. [Exch.] 9 ; Lamb v. Polk, 9 Car. & P. 629 ; Weed v. Panama R. R. Co., 17 N. Y. 362; Sanford v. Eighth Avenue R. R. Co., 23 Id. 313 ; Drew v. Sixth Avenue R. R. Co., 26 Id. 49; Higgins v. Watervliet Turnpike Co., 46 Id. 23: Whittaker v. Eighth Avenue R. R. Co., 51 Id. 295; Hagan v. Eighth Avenue R. R. Co., 15 Id. 380). Part 1, chap. 20, title 13, § 6, R. S., which provides that the owner of every carriage running or traveling upon any turnpike or public highway for the conveyance of passengers shall be liable, in all cases, for all injuries and damages done by any person, in the employment of such owner as a driver, while driving such carriage, to any person, or the property of any person, whether the act occasioning such injury or damage be willful or negligent, or otherwise, in the same manner, as such driver would be liable, does not apply to railroads (Whittaker v. Eighth Avenue R. R. Co., 51 N. Y. 295). It does not apply to the act of a conductor (Isaacs v. Third Avenue R. R. Co., 47 N. Y. 122).
   By the Court.—Curtis, J.

The exception the case presents is that of the plaintiff to the dismissal of the complaint, by the court, on the ground that, the evidence showed that the injury complained of was occasioned by the willful and unlawful act of the car-driver, defendant’s servant, and not within the scope of his employment. The case shows that the plaintiff, while driving his buggy through Catharine street, crossed defendant’s track so far that only the rear part of the hind wheels of his buggy remained upon the space occupied by the cars when in motion. At this point his further progress was arrested by a throng of trucks and other vehicles. The defendants’ car soon approached, and the driver, after waiting a moment or two, told the plaintiff to “ get off the track.” The plaintiff asked him to wait until the trucks moved, promising then to move. The driver said “Damn you! if you don’t get off here ; I am late 5 I will get you off some way or other.” The plaintiff said: “You wait a moment. I guess the trucks are moving, and I may go.” The trucks started, and as the plaintiff prepared to move on, the driver started his horses, and the platform of the car hit, or as one of the witnesses says touched, the hind wheel of the buggy, and overturned it, thus causing the injury complained of.

From the evidence, it is apparent that the car-driver may have attempted to pass by the buggy either without hitting it, or else by shoving it around out of his way so he could get by, and that he committed an error of judgment in measuring the distance. This is consistent with his saying to the plaintiff, “ I will get you off some way or other.” He was-late and hurried, and perhaps in his zeal to discharge his duty to his employer, he made the mistake which, caused the injury.

Much stress at the argument was laid by the defendant upon the language of the driver, as indicating willfulness and malice, but that does not seem to-be the necessary construction to place upon it. It indicates haste, and a desire to drive on, and has to be considered in the light of the surrounding circumstances, and a Chesterfieldian request could hardly be expected. It is quite probable if he had used his eyes as strenuously as he did his tongue, he would have been more careful, and the injury to the plaintiff would not have occurred.

• It is claimed that upon the doctrine in the case of Isaacs v. The Third Ave. R. R. Co. (47 N. Y. 122), the complaint was properly dismissed, this being an analogous case. That was a case where, when a female passenger desired to alight from the car, and declined doing so until it stopped, the conductor threw her out upon the pavement, and it was considered that this was his unauthorized, wanton, and willful trespass, and that the defendant was not liable. But this case is not to be interpreted as holding that a defendant is to be exonerated from liability for injuries occasioned by the errors and negligence of his reckless, careless, or unskillful driver, because the driver manifests at the same time that he is ruffianly and brutal. It is nowhere intimated that the employment of car drivers or conductdrs of this latter class would benefit their principals, when questions of- pecuniary responsibility for injuries arise. On the contrary, that case affirms the rule, that for a servant’s act in his master’s business, or within the scope of Ms employment, the master is liable for any abuse of authority conferred, or injuries resulting from errors of judgment, or mistake of facts, or from a negligent or reckless performance,of duties by the servant.

The question to be passed upon here, is whether it should not have been left to the jury to determine as a question of fact if the act of the conductor was willful and malicious, or negligent and reckless, and deemed by him necessary to accomplish the purpose with which he thought himself charged.

. There may be cases so near the line between law and fact that it is difficult to say to which side they belong; but the tendency of courts is to scrupulously watch that the right of a plaintiff, to have a question submitted to a jury should not be infringed upon. The principle in cases like the present is adhered to, that where the fact depends upon inferences to be drawn from the circumstances proved, about which honest men might differ, or the evidence is capable of different interpretations, then it is the plaintiff’s right to have the question submitted to the jury (Hackford v. N. Y. Central R. R. Co., 3 N. Y. 654; Belton v. Baxter, 58 Id. 411; Salter v. Utica and Black River R. R. Co., 58 Id. 631 ; Jackson v. Second Avenue R. R. Co., 47 Id. 274).

If the undisputed propfs in the present case showed that the act of the driver was unauthorized, willful, and malicious, and out of the scope of his employment, it was the duty of the court to dismiss the complaint, and if the question had gone to the jury on such evidence, and they had found a verdict for the plaintiff, it would also have been the duty of the court to set aside such a verdict as unsustained by the evidence. But the case presents this difficulty, that the undisputed facts are consistent with the plaintiff’s claim that Ms injuries resulted from the negligence of the defendant’s servant. They are capable of such interpretation. That inference is fairly to be drawn from them, and though men may honestly differ in their views in respect to them, still it is the province of the jury to pass upon the question, and the right of the plaintiff to have it submitted to them.

We think that the plaintiff’s exceptions should be sustained, the verdict set aside, and a new trial ordered, with costs to abide the event of the ¿ction.

Sedgwick, J., concurred.  