
    Goodman Freedman, Respondent, v. Metropolitan Street Railway Company, Appellant.
    
      Action for an assault—aggravating conduct of the plaintiff—it will be considered infixing the amount of .compensatory damages—va/riancebetween the main charge and, a charge mads upon request.
    
    In an action to recover damages for an assault committed upon the plaintiff by a conductor in the employ of the defendant street railway company, while the plaintiff was a passenger upon one of its cars, it is error for the court to charge that, even if the jury found that the conduct of the plaintiff was such as to aggravate the conductor into making the assault, such conduct could not he taken into consideration in fixing the amount of the plaintiff’s compensatory damages, but only in mitigation of punitive or exemplary damages.
    Where a charge, made at the request of a party at the close of the main charge, is inconsistent with the main charge, the subsequent charge should control the jury.
    Appeal by the defendant, the Metropolitan Street Railway 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 15th day of January, 1903, upon' the verdict of a jury for $1,500, and also from an order entered in said clerk’s office on the 23d day of January, 1903, denying the defendant’s motion for a new trial made upon the minutes.
    
      Bayard H. Ames [Arthur Ofner with him on the brief], for the appellant.
    
      W. H. Burby, for the respondent.
   Hooker, J.:

The plaintiff has had the verdict of the jury against the' defendant for a considerable sum as damages for an assault committed upon him by the conductor of one of the defendant’s street cars, while he was a passenger thereon. From the judgment entered upon the verdict and from an order denying defendant’s motion for .a new trial, defendant has appealed to this court.

The story of plaintiff’s witnesses, which the jury has believed, is that he and his wife, about midnight, boarded one of the defendant’s open cars at the corner of Pitt and Houston streets, in the borough of Manhattan, and selected one of the rear seats; that the car was without passengers save the plaintiff and his wife, and the conductor was sitting in one of the seats near the middle of the car; that as soon as the plaintiff and his wife sat down the conductor addressed to them vile and blasphemous language, and wanted to know why they did - not take front seats; that plaintiff replied he wished to smoke and had taken a rear seat for that purpose ; whereupon the conductor continued his abusive conduct that the plaintiff gently remonstrated and requested him to pay more respect to the lady who was with him, in answer to which the conductor turned over the back of the seat immediately in front of the plaintiff and wife, and there sat down, facing the plaintiff, putting his feet on the other seat, interfering with plaintiff’s wife’s clothing; that the conductor continued to insult the plaintiff and, although requested after he had collected his fares to retire, he laid, his hands on the plaintiff’s face, with the suggestion that the plaintiff shave, and when plaintiff endeavored to remove his hands, he was struck a blow in the mouth by the conductor, which knocked out several of his teeth.

The testimony of one of the defendant’s witnesses tended to show that the plaintiff and his wife looked as if they might have had a few drinks; they were scrappy, so to speak; they looked as though they was having a good time; ” that at the time of the altercation all three persons were standing together in the aisle with their hands in the air, and plaintiff aimed a blow at the conductor, who threw up his elbow to ward it off. Another witness testified that the wrangling continued for five or ten minutes, when the plaintiff stood up and made a strike at the conductor, who threw up his arms to fend off the blow.

In the course of the charge the learned court said to the jury: “ Now, if a man strikes you it is your business to go away and. not strike him back, but if you do hit him back, the law makes excuses for you by mitigating damages. But unless it is fairly done in self-defense it is not justified; it is not excused absolutely; there still is a cause of action for it and the only question would be how far the circumstances ought to mitigate the damages, and it is almost instinctive in every man to make allowances if one strikes after he has been hit himself. But while there is that tendency to make allowances, it does not go to the extent of justifying the blow or wholly excusing it; it. only goes to the mitigation of damages.” At the close of the charge defendant’s counsel asked the court to say to the jury “ that if the plaintiff and his wife, by their" course of conduct towards the conductor, aggravated the conductor into an assault, the jury may in such case render nominal damages.” This the court declined to do, saying that- the plaintiff, if entitled to recover at all, was entitled to recover compensation for his actual injuries. Defendant excepted: The court then charged further, as' follows: “If this were.a case where punitive damages could be .added to actual compensation, then, in determining whether you would punish the defendant or not, you might take all that into account, Tout not here. The plaintiff is entitled to recover actual compensation for his injuries, however much the conductor may have been irritated by the conduct of the plaintiff, unless it was accidental or in self-defense.” The defendant again excepted.

Although in the body of the charge, m the language quoted, the court announced the correct rule as to the mitigation of compensar ' tory damages, he clearly and unequivocally recanted the proposition by his language in refusing the defendant’s request, and in his supplementary remark thereupon he adopted the view that, though the conduct of the plaintiff was such as to aggravate the conductor into an assault, the jury were not entitled to take that conduct into consideration. to mitigate compensatory damages; that such mitigation for that reason could only be had' where punitive or exemplary damages were sought. The jury were bound by the latter charge; for where a charge made at the request of a party at the close of the main charge is inconsistent with the latter, the subsequent language should control the jury. (Goetz v. Metropolitan Street R. Co., 54 App. Div. 365, 369.) The final instruction of the learned trial judge is not supported by the authorities. While the court was, perhaps, not called upon to decide this question in Kiff v. Youmans (86 N. Y. 324), Danforth. J., considered it and collated the authorities in these words: “It still remains that the plaintiff provoked the trespass, was himself guilty of the act which led to the disturbance of the public peace. Although this provocation fails to justify the defendant (2 Greenl. Ev. § 98), it may be relied upon by him in mitigation even of compensatory damages. This doctrine is as old as the action of trespass (Avery v. Ray, 1 Mass. 11; Richardson v. Hine, 42 Conn. 206 ; Thomas v. Powell, 7 Carr. & P. 807; Lee v. Woolsey, 19 Johns. 319; Corning v. Corning, 6 N. Y. 103 ; Cushman v. Ryan, 1 Story, 100); and is correlative to the rule which permits circumstances of aggravation, such as time and place of an assault, or insulting words, or other circumstances of indignity and contumely, to increase them. (2 Greenl. Ev. § 267.). A different rule is suggested in Birchard v. Booth (4 Wis. 67), hut in the later case of Morely v. Dunbar (24 id. 183), the same court repudiates it, and declares that circumstances of provocation attending the transaction, or so recent as to constitute a part of the res gestee, though not sufficient entirely to justify the act done, may constitute an excuse which will mitigate the actual damages, and even reduce them to a sum which is merely nominal; while Robison v. Rupert (23 Penn. St. 523) lays down a rule not only supporting the same proposition, but quite applicable to the facts of this case.”

That case has been cited in the third department of this court, which has recognized the authority of the conclusions reached by Judge Danforth upon this question. (Genung v. Baldwin, 77 App. Div. 584.) It is urged by the respondent that the case of Weber v. Brooklyn, Q. C. & S. R. R. Co. (47 App. Div. 306) is authority to sustain the theory adopted by the trial court in this case. In this we are unable to concur. Mr. Justice Willard Bartlett, expressing the opinion of the court in the Weber case, quotes from the' charge there as follows: “ If you find that his conduct was insulting, his language indecent and provoking, you may take that into consideration in mitigation of damages, if you find that he did not assault the conductor.” The appellant in that case urged that this was error, but the record disclosed no exception to the sentence thus quoted, and the court in deciding that appeal did not express any opinion whatever in relation to that portion of the charge.

Inasmuch as the plaintiff has had a verdict of considerable size for injuries inflicted upon him, we cannot say that the rule as announced by the court in relation to mitigation of damages had no influence upon the jury.

For the error pointed out the judgment and order should be reversed and a new trial granted.

Goodrich, P. J., Woodward, Hirschberg and Jenks, <TJ., concurred.

Judgment and order reversed and new trial granted, costs to abide the event. 
      
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