
    George L. Rowe, Respondent, v. The Brooklyn Heights Railroad Company, Appellant.
    
      Street surface railroad—punitive damages for assault — regulation that an employee ■ ■ wearing a uniform should not occupy the front seat sustained, — the payment of his jcure by such employee does not alter the case — the validity of the rule is affected by Us purpose.
    
    In an action against a street railroad company, arising out of the fact that the plaintiff, an employee of the defendant, while off duty and while- he was wearing the defendant’s uniform, which was owned by him, boarded one of the defendant’s open cars, seated himself upon the front seat and paid his fare,, and that, upon his refusal to leave the front seat and take a seat in some other part of the car, he was assaulted by one of the defendant’s inspectors, it is error for the court, in the absence oí evidence that the defendant either wittingly or negligently engaged or retained an improper servant or that it ever authorized him by a special command or by a general warrant to assault the plaintiff, or that it had in any way participated in the act or had ratified or approved it, to instruct the jury that they may award punitive damages, especially where it appears that the damages inflicted upon the plaintiff's person and property were but trifling and were incidental to a mere scuffle or bout at fisticuffs in which the plaintiff retaliated.
    A rule of the railroad company that no employee wearing its uniform shall occupy the front seat of one of its open cars while it is in operation is reasonable in that it promotes the safety of passengers by preventing persons who, by reason of their common employment, are peculiarly likely to converse with the motorman, from doing so, and thus diverting his attention from his duties. The payment of the fare by an employee wishing to ride on the front seat does not affect the application of the rule to him.
    
      Semble, that if the sole reason for the rule was to reserve the most desirable seat for passengers who paid, to the exclusion of employees who rode free, payment of fare by an employee would render the rule inapplicable to him.
    Appeal by the defendant, The Brooklyn Heights Railroad 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 25th day of November, 1901, upon the verdict of a jury for $1,000, and also from an order entered in said clerk’s office on the 2d day of December, 1901, denying the defendant’s motion for a new trial made upon the minutes.
    
      I. R. Oeland and George D. Yeomans, for the appellant.
    
      Elmer S. White, for the respondent.
   Jenks, J.:

The plaintiff complained of an assault, of a false imprisonment and of a malicious prosecution. The learned trial court dismissed the last two causes named, but submitted that for assault to the jury, which found a verdict for $1,000 for the plaintiff. The version of the plaintiff, who, at the time, was an employee of the defendant and was clad in its uniform, which he owned, is that while off duty he boarded an open car tif the defendant, seated himself on the front seat and paid his fare, and that, upon his refusal to leave the front seat and take a place in some other part of the car, he was assaulted by an inspector of the defendant. I think that the judgment must be reversed for two capital errors:

First:-The learned court instructed the jury; Under exception-, that it might award, punitive damages. The phrases punitive damages,” “ exemplary damages,” smart money,” define themselves. I fail -to see any principle.of law or of reason which -would justify -an award; of damages in this case to punish the defendant, or to make an example of it, or to make- it smart. I find • no evidence -in the record that proved or tended to prove that the defendant either wittingly or negligently-had engaged or hád' retained an improper servant, or that it had- ever authorized ■ him by special command or by general warrant to assault the plaintiff, or that it had in any way participated in the act,, or had ratified or had approved it. I think that the charge was erroneous and requires a reversal of the judgment, particularly in view - of the fact- that the damages inflicted Upon the plaintiff’s person and property - were • but trifling and, were incidental to a mere scuffle or bout at fisticuffs, in .w-hich he appears to have retaliated. (Fisher v. Metropolitan Elevated R. Co., 34 Hun, 433; Muckle v. Rochester Railway Co., 79 id. 32; Cleghorn v. N. Y. Cen. & H. River R. R. Co., 56 N. Y. 44, 47; Murphy v. Cent. Park, etc., R. R. Co., 48 N. Y. Super. Ct. 96; Lake Shore & Michigan Southern Railway Company v. Prentice, 147 U. S. 101; Sedg. Dam. [8th ed.] § 380.).

.Second. The learned trial court held that no -rule or regulation’ was in. evidence. But I think there was' testimony in the- casé which would have warranted the jury in determining that there were, rules or regulations applicable to the plaintiff, maugre the fact that the written- rifle itself was not formally read in. Thus I find that the'plaintiff at one'place testified that there was a rule that if “you (evidently' referring to One of his -status) paid your " fare, you could ride any part of - the car.” The court asked of him : - “ Q. You' were not allowed to ride-in that'seat, is that it'; did. you -say-that you were not allowed to' ride in that seat if you had you-r uniform-on?' -A. Xo, sir.” By the -court: " “ I knew what the- rules of the-road. were,-that a-man in uniform -was not permitted to ride in that place.”' Hpon the refusal of'the-court to halt The trial in order'to' permit -the defendant to send for its -book of rules, the counsel for-the plaintiff stated- - that he was- ready to consent that the -rules' “ for-bade- - motormeH or'conductors in uniform from riding on the front-seats of these open - Cars- to the exclusion of passengers.” The counsel for the defendant first accepted the rule, though he said that it was not correctly stated so far as it contained a limitation to the exclusion of passengers, then rejected it, and finally, after colloquy and discussion, said that-he would accept the offer, so that he might comment upon the rule. I think that this offer and acceptance were sufficient to establish the existence of a rule in the terms stated. (1 Greenl. Ev. [15th ed.] §§ 186, 205 ; Whart. Ev. [3d ed.] §§ 1075, 1184, 1186.) Assuming, then, that there was evidence that there was a rule that a man in uniform was not permitted to ride in that place, although the present discussion may prove to be vain so far as the new trial is concerned, for the reason that I assume that the written rule, when read in evidence, may vary from any rule stated on this trial, yet it may be pertinent to say, in view of the new trial, that we do not agree with the 1 earned trial justice in his doubt that the defendant had any right to make a rule that “ if a man is off duty and is riding as a common citizen and he is wearing his own clothes (-i. e., a uniform of the defendant, but bought by the plaintiff) * * * may not ride on the .front seat,” and in his holding, further on, that, as matter of law, if such a man paid his fare he had a right to ride there” despite any rules, or that, even though the rule was as stated by the counsel for the defendant on his opening, “ it gave them no right to insist upon it if the man paid his fare,” or similar holdings as to the validity of such a rule. It is the right and the duty of the defendant to make rules and regulations for both the public convenience and the public safety (Avery v. N. Y. C. & H. R. R. R. Co., 121 N. Y. 31), and the reasonableness of a regulation is a question of law. (Hibbard v. N. Y. & Erie R. R. Co., 15 N. Y. 455, citing City of London's Case, 8 Co. 126; Vedder v. Fellows, 20 N. Y. 126; Muckle v. Rochester Railway Co., supra; Avery v. N. Y. C. & H. R. R. R. Co., supra.) We are of opinion that a rule of the defendant, that no man in its uniform could sit -upon the front seat of one of its open cars while such car is in operation can be sustained as reasonable. We think that it promotes the safety of passengers. The car is operated by a motorman who alone'applies and withholds the power, and who alone controls the brake and other checks. He stands at the front of the car. Immediately behind him is the front seat. There is no structure between him and that seat! It needs no detail of his duties to show that ordinary care and prudence on his part may require his constant and uninterrupted attention to prevent collisions or other accidents which may be fraught with danger to the passengers. Anything which diverts his attention from his work may entail accident. Conversation between the passengers and the motorman would tend to divert his attention and to impair his vigilance. The defendant had a right to assume that acquaintance between passenger, and motorman might provoke conversation between them. It had the right to assume that an employment common between the passenger and the motorman might have made- acquaintance between them or might be a passport to it. If the. passenger and the motorman- were both clad in the uniform of the defendant it had the right to assume that they were both in its employ. Therefore, when it enacted a regulation that no person in its uniform should occupy a seat which afforded every opportunity to conversation with the motorman, it adopted a regulation which tended to prevent conversation with the motorman, and thus to remove a cause which might divert his attention from his duties. The rule worked, then, for the protection of the passengers, and is entirely reasonable. Payment by the employee of the fare did not affect the reason of the rule, even though such payment might make him a passenger in contradistinction to an employee who rode free. He was still an employee of the defendant, subject to the presumption that he either knew his fellow-employee or that common employment might beget acquaintance. The fact that the defendant might have secured the attention of the motorman by a rule that he should not speak to any passenger does not affect the reasonableness of the rule in question. If there were no reason apparent for the rule except that the front seat was a coveted place which should be reserved for passengers who paid, to the exclusion of employees who rode free, then' I would admit the force of the contention of the learned counsel for the.respondent that the employee for the. nonce became a passenger when lie paid his fare, and that he might well have refused to take himself into the middle of the car upon the demand of the inspector. It is argued that the reason of the rule is not to be found in the safety of the carriage, because the rule does not prohibit occupancy of :the rear seat. But there is a manifest difference between the duties of a conductor and a motorman, for the latter is required to exert a ' vigilance which, if relaxed for an instant, even to the turning of his head, may bring danger or death, while the momentary inattention of the former is not fraught with any similar degree of peril to the passengers. I fail to see that such a regulation is attended with any unnecessary inconvenience to an employee who chooses to become a passenger to the extent of payment of fare. It is not contended that he is shut out from the car of the common carrier, dr that he cannot occupy a seat in the place where the main body of -the passengers must necessarily be seated. In Peck v. N. Y. C. & H. R. R. R. Co. (70 N. Y. 587) the court sustained a regulation which set apart a car in the first instance for women traveling alone or with male relatives or with friends, on the ground that it tended .to their comfort and security and to the preservation of good order. A fortiori, a regulation which tended to secure the safety of passengers from accident and perhaps fatalities, would seem to be within the reasonable powers of this defendant corporation. In the last case cited the court also held that if the defendant had a right to make the regulation it had a right to enforce it, even to the extent of removal of him who violated it. (See, too, Chicago & Alton R. R. Co. v. Flagg, 43 Ill. 364.)

The judgment and order appealed from should be reversed and a new trial granted, costs to abide the event.

All concurred.

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