
    CITY COURT OF BROOKLYN.
    Warren Bonney, appellant, agt. The Bushwick Railroad Company, respondent.
    
      New trial— When should he granted in action for negligence.
    
    Where a passenger upon a street car, subsequently to alighting, was pulled down by the conductor’s holding on to him after starting the car:
    
      Held, that he had a good cause of action against the railroad for the injuries sustained.
    If a charge to the jury in mentioning the facts of a transaction as narrated by the defendant’s witnesses makes a remark which, though correct as applied to the defendant’s version, applies also to the plaintiff’s version, and tends to cut him o2 from a recovery, it is error for which a new trial should he granted.
    
      General Term, December, 1884.
    
      Before McCue, Gh. J., and Reynolds, J,
    
    This suit was to recover for personal injuries received after the plaintiff, a man eighty-three years old and a passenger, had gotten down on the ground from defendant’s horse car, in consequence of the conductor’s holding on to his coat after starting the car, which precipitated the plaintiff to the pavement, breaking his hip. The defendant’s witnesses testified that he fell after the car had passed on, and after the conductor had ceased to hold on to him.
    The court, in the course of the charge, said: “ It is unnecessary for me to tell you that if he fell after he had alighted from the car, after he had both feet on the ground, then he cannot recover.”
    Plaintiff’s counsel excepted to the last clause. A verdict was rendered for the defendant, and the plaintiff appealed from the judgment and order denying a motion for a new trial on the minutes.
    
      Henderson Benedict, for appellant:
    I. Defendants were unquestionably responsible for the injury as narrated by the plaintiff; for the rule relieving masters from liability for malicious injuries inflicted by servants outside the scope of employment does not apply between a common carrier and its passengers, as it undertakes to protect them against any injury arising from the malice or negligence of its servants (Stewart agt. Brooklyn City R. R., 90 N. Y., 588).
    II. Even under the general principle the defendants ctiuld not escape, for it is settled that if a servant in performing an act within his authority proceeds beyond his master’s instructions and inflicts willful, malicious or reckless injury, his master is liable, and no proof is necessary of express authority to do the act if it was one (as in the present instance) implied from the nature of his position, as daily exercised under common observation (Hoffman agt. N. Y. C. R., 87 N. Y., 25 ; Roods agt. D. L. & W. R., 64 id., 129; Cohen agt. D. D. E. L. R., 69 id., 170; Mott agt. Consumers’ lce Co., 73 id., 543; Shea agt. Sixth Ave. R., 62 id., 180; Higgins agt. W. T. C. Co., 46 id., 234; Jackson agt. Second Ave. R., 47 id., 274).
    III. Nothing except an express withdrawal of this erroneous instruction with a direction to disregard it, accompanied by a statement of the correct principle could have remedied it ( Walton agt. Wise, 47 Supr. Ct. [J. & S.], 512; Chapman agt. Erie R., 55 N. Y., 579; Knupple agt. Knickerbocker Ice Co., 84 id., 488; Mevey agt. Clar, 45 id., 285; Avery agt. City of Syracuse, 29 Hun, 540; Canfield agt. Baltimore O. R., 46 Supr. Ct. [J. & S.], 238).
    IY. It was essential to except only, and not ask the question submitted to the jury to preserve the plaintiff’s rights (Allis agt. Leonard, 58 N. Y., 288; Avery agt. City of Syracuse, supra).
    
    Y. It was unnecessary to specify the grounds of exception or suggest an amendment to the charge (Friend agt. Paten, 10 Abb. N. C., 311; Goldman agt. Abram, 9 Daly, 235).
    
      T. S. Moore, for respondent.
   Per Curiam.

According to the plaintiff’s own testimony, corroborated more or less, by some of his witnesses, the conductor kept hold of him after he had got upon the ground and after the car had started, and by this means dragged him down thereby causing the injury. The evidence of the defendant was in substance that after the plaintiff had alighted and was clear of the car and the conductor, he fell through some misadventure of his own. It was probably in view of this evidence on behalf of the defendant that the trial judge remarked in the course of the charge: “ It is unnecessary for me to tell you that if he fell after he alighted from the car, after he had both feet on the ground, then he cannot recover.”

This instruction was perfectly correct as applied to the fall as described by defendant’s witnesses, but the difficulty is that it applied also to the plaintiff’s narration of the occurrence, and thus cut him off from all chance of recovery. If the jury believed his statement we think they might well have found a verdict in his favor.

For this reason the judgment should be reversed and a new trial granted, costs of appeal to abide the event.  