
    George L. Rowe, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Removal of a street railroad employee, in uniform but off duty, who has paid his fa/re,from the front seat of a railroad car—what rules do not justify it — authority and intent of an inspector to make rules.
    
    In an action brought to recover damages for personal injuries sustained by the plaintiff, it appeared that the plaintiff was a motorman in the employ of the defendant, a street railway company; that on the day in question the plaintiff, who was not then on duty, but was wearing his uniform, boarded one of the defendant’s open street cars, paid his fare and sat on the front seat; that one of the defendant’s inspectors, although informed of the fact that the plaintiff was riding as a paying passenger and not free, ordered him to leave his seat, and that, upon his refusal to obey such direction, the inspector forcibly removed him from the car, inflicting the injuries for which he sought to recover.
    A rule of the company provided, “Employees while riding free must not smoke and must not occupy seats to the exclusion of paying passengers. On open cars employees riding free must not ride on the front seat nor hold any unnecessary conversation with motormen or conductors.”
    Another rule of the company provided that employees wearing the defendant’s uniform might ride free to the number of five upon a car, but that, if more than that number of employees insisted on riding upon a car, the conductor should collect their fares.
    
      Held, that the rules showed that the defendant contemplated that employees in uniform could and would ride as paying passengers;
    That the rules did not justify the inspector in ejecting the plaintiff;
    That, in the absence of proof of authority on the part of the inspector to make a rule which would exclude the plaintiff from the front seat and of an intention on his part to make such a rule, his act could not be justified on that theory.
    Appeal by the defendant, The Brooklyn Heights 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 Kings on the 16th day of June, 1902, upon the verdict of a jury for $900, and also from an order entered in said clerk’s office on the 8th day of July, 1902, denying the defendant’s motion for a new trial made upon the minutes.
    
      I B. Oelcmd and George D. Yeomans, for the appellant.
    
      Elmer S. White, for the respondent.
   Hirschberg, J.:

On appeal from the judgment rendered on the first trial we held that a rule prohibiting employees wearing the company’s uniform from occupying the front seat of an open car was a reasonable regulation. (See Rowe v. Brooklyn Heights R. R. Co., 71 App. Div. 474.) The rule actually adopted by the company was not read in evidence upon that trial, and the decision was based upon evidence tending to indicate that it was framed in the form suggested. On this trial the rule was read in evidence in connection with other rules upon the same general subject, and its bearing upon the plaintiff’s right to recover damages for the assault of which he complains is clearly manifested. In determining the validity of the judgment and order now appealed from, only the exceptions presented in the briefs and on the argument will be considered.

The first excejition relates to the plaintiff’s right to occupy the seat from which he was ejected. The plaintiff was a motorman in the defendant’s employ at the time of the occurrence, and was wearing his uniform, although not engaged fhat day at work. He was concededly riding as a passenger, his fare having been duly paid. He was riding on the front seat of an open car, and an inspector, a servant of the defendant, although informed of the fact that he was riding as a paying passenger and not free, ordered him off the seat, and, on his refusal to leave, forcibly removed him from the car, inflicting the injuries for which he has recovered.

The rule which the defendant claims that the plaintiff was infringing, and which it is, therefore, asserted justified the treatment which he received, is the following: Employees while riding free must not smoke and must not occupy seats to the exclusion of paying passengers. On open cars employees riding free must not ride on the front seat nor hold any unnecessary conversation with motormen or conductors.” It is apparent that there is nothing in the rule which applies or purports to apply to the plaintiff’s case. By its express terms it applies only to employees who are riding free and only to them while riding free. The wearing of the uniform has no bearing in the matter. Another rule of the company provides that employees wearing the uniform may ride free to the number of five upon a car with the qualification that if more than that number insist on riding the conductors must collect their fares. It was, therefore, within the contemplation of the defendant, when formulating the rules, that its employees would and could ride as paying passengers while in uniform, and no attempt was made to abridge or limit that right. Our former decision, as I have said, was to the effect that it could have been done, but the case as now presented demonstrates that it has not been done. It follows that, so far as the rule in question is concerned, the inspector had no more 'right to put the plaintiff off the car because he was riding on the front seat than he would have had to put him off for smoking where smoking was permitted or for occupying a seat to the exclusion of some other paying passenger. The essence of the rule is in the fact of riding free, and, with that fact eliminated, there is no rule applicable to the plaintiff as distinguished from any other paying passenger.

It is claimed, however, that the inspector had authority to make rules which the plaintiff was bound to obey, and that his determination that the plaintiff should not ride on the front seat was at the time and in effect the making of a new rule. If this claim is to receive serious consideration, it would be sufficient to say that there is no evidence in the case to the effect that the inspector did make or intend to make such a rule, or that he was acting other than in what he believed to be the proper enforcement of the rule which was read in evidence. But there is nothing in the case tending to indicate that the inspector had the authority suggested, and the claim is wholly untenable.

An exception was taken to the refusal of the court to permit the plaintiff to be asked on cross-examination the question : “ Is it possible that what you say here to-day is not the correct version, and what you said the day after this occurrence is correct ? ” I think this question might very well have been allowed, but I cannot see that the defendant has been prejudiced by its exclusion, inasmuch as both versions were given fully to the jury, and the plaintiff insisted that both versions were about the same.” It may be fairly said that the question was already answered on the cross-examination just preceding wherein the assumed discrepancy was pointed to the allegation that the inspector struck the witness first, in answer to a question based upon which assumption he replied, “ He struck me and pulled me off about the same time,” whereupon the excluded question was asked in almost identical terms and answered, as I have said, that in the opinion of the witness both versions were the same.

The remaining exception presented relates to the alleged exclusion of the police record as proof in contradiction of the plaintiff that a certain witness testified in the police court in his behalf. The record was not offered in evidence, and the exception as taken presents no question for review.

The judgment and order should be affirmed.

Present — Bartlett, Woodward, Hirschberg, Jenks and Hooker, JJ.

Judgment and order unanimously affirmed, with costs.  