
    THOMAS HOGAN, as Administrator, &c., Respondent v. THE CENTRAL PARK, NORTH AND EAST RIVER RAILROAD COMPANY, Appellant.
    
      Negligence and contributory negligence.
    
    This action was brought by plaintiff to recover damages by reason of the death of his infant son under the following circumstances. On the evening of the 18th of August, 1887, young Hogan was riding on the rear platform of a car of the defendant. The car had no conductor. The car was going westerly from Second to Third avenue. The deceased was on the southerly side of the platform, nearest to the track for cars running in the opposite direction. Another boy, named Bibarvarro, was also on the rear platform, on the northerly side. The driver of this car, without stopping the same, tied up his reins and passed swiftly towards the rear of the car, with something in his hand and his arm uplifted in the act of striking. The deceased jumped from the car and, in doing so, another car of the defendant coming in an opposite direction ran over him, inflicting injuries upon him from which he died. It was shown that the car that inflicted the injuries was being driven -at a rapid gait, faster than the ordinary gait of street cars. ' »
    
      
      Held, that upon the evidence given the jury could find that defendant’s driver, in attempting to put the intestate off the car as a trespasser, acted in such way as to cause him 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 the case of McCann v. Sixth Avenue R. R. Co., 117 N. Y. 505, it was not contributory negligence on the part of the boy to jump off on the wrong side of the car on which he was stealing a ride and in front of the horses of another car moving rapidly in the opposite direction. The defendant’s liability rests upon the rude, threatening and ill timed act of its agent who was attempting to put the trespasser off the car. This point was fairly submitted to the jury, and they were instructed to And for the defendant if they concluded that the acts and attempts of the driver to induce the intestate to leave the car involved no menace of bodily harm. The jury having determined the fact favorably to the plaintiff their verdict cannot be disturbed.
    This case seems to be fully controlled by the decision of the court in the case of McCann v. Sixth Av. R. R. Co., and in view of that decision none of the rulings of the learned judge who presided at the trial can be held erroneous.
    Before Freedman and Truax, JJ.
    
      Decided November 3, 1890.
    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.
    
      Vanderpoel, Cuming & Goodvoin, for appellant.
    
      Hays & Greenbaum, for respondent.
   By the Court.—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 Av. R. R. Co., 117 N. Y. 505, 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 such a 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 defendant 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 7th request had already been charged, and consequently the refusal to charge otherwise than already charged, constituted no error.

The judgment and order should be affirmed, with costs.

Truax, J., concurred.  