
    Clarence M. Smith, Resp’t, v. The Manhattan Railway Co., App’lt.
    
      (New York Common Pleas, General Term,
    
    
      Filed May 2, 1892.)
    
    1. Railroad—Liability fob acts of servants.
    A common carrier of passengers assumes an absolute obligation to protect them against the willful as well as the negligent acts of its agents and servants.
    3. Same—Enforcement of rules.
    Such carrier may enforce observance of its regulations by prevention, but not by punishment of a breach already committed.
    3. Same.
    A passenger does not forfeit his right to safe transportation by the mere fact of getting aboard in a manner contrary to a rule of the carrier.
    4. Same.
    If, after such irregular boarding, the passenger leaves the car and again enters it in a proper manner, he has a right to safe conveyance by that train; and an attempt to eject him is an outrage upon him, and for injuries sustained thereby, he may maintain an action against the carrier.
    Appeal from judgment on verdict, and from order denying new trial. Action for injuries to plaintiff’s person inflicted by defendant’s servants in an attempt to eject him from the train. Having paid fare to South Ferry, plaintiff boarded defendant’s train at Chatham Square station by leaping on the rear platform, in violation of a rule of the company; and rode thence to Hanover Square station. There plaintiff stepped out of the car to get his valise, which had been tossed on the platform, and then returned into the train. Thereupon defendant’s servants essayed to eject him from the train, and in the attempt committed the injuries for which he sues.
    
      Brainerd Talks, for app’lt; Jacob F. MiUer, for resp’t.
   Pryor, J.

By its contract of carriage the defendant assumed as absolute obligation to protect the plaintiff as well against the willful as the negligent acts of its servants. Stewart v. R. R. Co., 90 N. Y., 588; New Jersey Steamboat Co. v. Brockett, 121 U. S., 637; N. O. & N. E. R. R. Co. v. Jopes, 142 id., 18; Croker v. R. R. Co., 36 Wis., 657: Goddard v. R. R. Co., 57 Me., 202; Taylor on Private Corporations, § 347 (second ed.).

But the defendant contends that because the plaintiff boarded the train in a manner forbidden by its rules, its servants were justified in inflicting upon him the injuries of which he complains.

Conceding that the plaintiff entered the car irregularly, the question is, did that fact alone authorize the defendant to eject him?

The rule violated did not interdict access to the car, but only access in a specific mode. The plaintiff had paid his fare ; he had a right to go by that train, he was in a place appropriated to passengers; and at the time of the assault he was in no way misconducting himself. The attempt to put him off was not because he was whore he had no right to be; but solely because he had got in the proper place in an improper manner. The wrong of which he is accused is not in being on the train, but in so getting on the train. He was not in delict after being in the car. Although where he had a perfect right to be, the effort to eject him was made merely because of antecedent misconduct in reaching the place for the privilege of occupying which he had paid his money. His presence on the train being rightful, no matter what the irregularity in getting there, his removal would necessarily have been wrongful.

Undoubtedly the defendant has authority to enforce observance of its regulations; but by preventing, not by punishing, the breach of them. The defendant has no power of retribution, and is incapable of compelling conformity to its rules by the imposition of a penalty. Bat- the ejecting plaintiff for an act already accomplished would have involved a forfeiture of his right to be carried on that train. Only by present, or prospective, and not by past misconduct, does a passenger lose his privileges.

In Steamboat Company v. Brockett, 121 U. S., 637, a passenger voluntarily put himself in a place from which the rules of the company excluded him, and while there was assaulted by the company’s servants: held, that, nevertheless, the company was bound to furnish him safe transportation, and to indemnify him for injuries caused by the improper conduct of its servants.” The adjudication that the wrongful presence of a passenger at a forbidden locality on the vehicle does not forfeit his right to transportation, negatives the proposition that his right to carriage when aboard is lost by a breach of regulation in getting aboard.

Hitherto the argument has proceeded on the postulate that when the attempt was made to eject the plaintiff he was on the train by virtue of an irregular entry. But at Hanover Square he left the train, and then re-entered it without resistance or remonstrance from the defendant. Having originally a right to conveyance by that train, and being now on it by no breach of regulation or other misconduct, the attempt to eject him was an utterly inexcusable outrage, for which the defendant might well have been chastised by a much heavier verdict than that of which, without reason, it complains.

Judgment and order affirmed, with costs.

Bischoff and Giegerich, JJ., concur.  