
    George L. Baber, by Guardian, Respondent, v. The Broadway & Seventh Avenue Railroad Co., Appellant.
    (New York Common Pleas—General Term,
    June, 1895.)
    The fact that it is the duty of the conductor of a street car to eject trespassers does not necessarily rebut an inference that the driver was acting within the scope of his employment in directing a trespasser to leave the car.
    Testimony of the plaintiff, in an action for personal injuries, that he requested the driver to stop on the north side of a street and that his fall occurred when the car reached the south side of such street is not necessarily inconsistent with his testimony that he was impelled suddenly to jump from the car through fear caused by the driver’s acts.
    In such an action evidence of the actual effect upon the plaintiff of the driver’s threatening acts is admissible on the issue of contributory negligence.
    Appeal from judgment upon verdict and from an order denying a new trial.
    
      Henry A. Robinson, for appellant.
    
      Gilbert D. Lamb, for respondent.
   Bischoff, J.

The points raised upon this appeal are found in the main to have been already determined adversely to the appellant in the opinion heretofore handed down upon the motion for a new trial upon exceptions after a nonsuit, the result of the former trial of the action. Baber v. R. R. Co., 10 Misc. Rep. 109. We there held that, impliedly, the driver of defendant’s car, having apparent charge of defendant’s property, was acting within the scope of his employment when directing plaintiff, a trespasser, to leave the car, and that, therefore, defendant was liable for the injury occurring under the particular circumstances of the case. Further, it was determined that plaintiff was not chargeable with contributory negligence.

It is urged, however, that the driver when called as a witness upon this trial, stated that it ivas the conductor’s duty to eject trespassers found upon the car. True, this testimony may be said, to conflict with the inference of his duty as noted above, but that inference is not thereby conclusively rebutted, and it was for the jury to draw this inference from the facts in evidence.

It is also contended that from the plaintiff’s own testimony it appears that he was not impelled suddenly to jump off the car through fear, since he testified that his last request of the driver to stop was made at the northern side of Twenty-third street, whereas the evidence in the case bears out the fact that his fall took place when the car had reached the southern side of that street.

No sufficient inconsistency is presented by this fact to call for our disapproval of the result reached at the trial.» Plaintiff testified that he did actually jump from the car to escape the immediate injury threatened by the driver’s motion, but, we are advised by counsel, the car must have proceeded for % distance of sixty-five or eighty-five feet during the period which elapsed between the time of plaintiff’s request and the moment of his injury; hence this injury was not the result of an impulsive 'act and his manner of leaving the car was negligent.

The difficulty with this contention is that we cannot well presume the driver’s answer to the request and his hostile gesture to have followed vnstanter the plaintiff’s words. Of this the record does not apprise ns, but we have the fact that the car was proceeding at a rapid pace and are unable to say that the interval of space in question could not have been covered with such dispatch that, assuming some reasonable deliberation upon the driver’s part, the state of facts presented would be quite consistent with the plaintiff's statement that his fall was due solely to his having been suddenly frightened off the car.

The remaining ground urged for a reversal is that error is presented by the appellant’s exception to the admission of plaintiff’s testimony that he jumped from the car in obedience to the belief that he would be struck had he failed so to do. The argument appears to be that the question asked usurped the province of the jury. This does not seem to he the fact; the driver’s threatening act might have had a different effect upon another individual, and evidence of the actual effect upon the plaintiff was, apparently, admissible upon the issue of contributory negligence. But apart from this the exceptions are unavailing, since no grounds for the objection which was overruled were presented upon the trial. Meyers v. Cohn, 4 Misc. Rep. 185 ; 53 N. Y. St. Repr, 223 ; Malcolm v. Lyon, 46 id. 921.

The judgment and order must be affirmed, with costs.

Daly, Oh. J., and Bookstaveb, J., concur.

Judgment and. order affirmed, with cost's.  