
    Patrick H. Dowd, Respondent, v. The Albany Railway, Appellant.
    
      Hule of a street railway company as to packages, ete. — when reasonable as a matter of law ■—• right to eject a passenger violating it.
    
    In an action against a street railway company, based upon the alleged wrongful expulsion of the plaintiff from one of its cars, the court.should charge the jury, as a matter of'law, that a rule of the company providing, “Passengers must not he permitted to take into the cars packages or goods that are cumbersome or dangerous, such as barrels, boxes, trunks, gas pipe,, lumber, and panes of glass,” is reasonable, and it is error for the court to leave the question of its reasonableness to the determination of the jury.
    Where it.appears that the plaintiff, carrying avalise and two rifles with bayonets attached, boarded a closed street car in which were several passengers, the court Should instruct the jury that the conductor was entitled to eject him, and that the only question for their consideration was whether he had used unnecessary force in so doing.
    Appeal by the defendant, The Albany Railway,-from a judgment of the County Court of Albany county in favor of the plaintiff, entered in the office of the clerk of' the county of Albany on the 2d day of June, 1899, upon the verdict of a jury for $300, and also from an order entered in said clerk’s office on the 2d day of June, 1899, denying the defendant’s motion for a new trial made upon the minutes.
    
      John E. MacLean and John H. Gleason, for the appellant.
    
      John Scanlon, for the respondent.
   Kellogg, J.:

This is an appeal from a judgment rendered in the County Court of Albany county upon the verdict of a jury awarding plaintiff $300 damages.

The plaintiff boarded the street car of defendant carrying two rifles with bayonets attached and a valise. The conductor of the. car informed him he could not ride with those guns, and requested him to get off. Upon this request th.e plaintiff did not voluntarily act. Some minutes later the conductor again told plaintiff he must get off the car and.thereupon forced him off, taking him by the collar of his coat and pulling him. The plaintiff was not thrown down and suffered no serious personal injury.

This court would not, I think, be warranted in interfering with the verdict, except for what the learned court said in its charge to the jury.. It seems to me there were two errors in the charge, either of which may have had serious effect on the finding of the jury-

There was offered in evidence a rule of the defendant company reading, “ Passengers must not be permitted to take into the cars packages or goods that are cumbersome or dangerous, such as barrels, boxes, trunks, gas pipe, lumber, and panes of glass.” The court said to the jury that the defendant had a right to make reasonable rules, and that passengers must be governed by them, and then in effect left it to the jury to say whether this rule was reasonable, to which the defendant excepted, I think this was error, and that the court should have charged the jury, as a matter of law, that this was a reasonable rule.

The court further charged the jury in effect that they might find that the guns, carried in the manner in which they were, were not dangerous, and the conductor was wrong in declaring them to be so. This, I think, was also error. The plaintiff, incumbered with a valise, carried these two rifles, with bayonets attached, in his hands, in a closed street car, in which there were a number of passenger's, and passengers getting on and off at every crossing. The two guns, rigged and carried in that way by one man, with a valise, also, were ' so obviously dangerous to others in the same car that it needed only the declaration of the conductor in charge to exclude the passenger proposing to ride so incumbered, and his declaration to that effect should have been conclusive, and the court should have instructed the jury that the only question for them to consider was whether unnecessary force was used in putting the plaintiff off the car, and if so, what was the damage suffered because of such unnecessary force.

For the reasons stated the judgment should be reversed, a new •trial granted, with costs to abide the event.

All concurred^ except Herrick, J., not sitting.

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