Graville v. Manhattan Ry. Co.

• Decision Date: 10 May 1887
• Citation: 105 N.Y. 525,12 N.E. 51
• Parties: GRAVILLE v. MANHATTAN RY. CO.
• Court: New York Court of Appeals Court of Appeals

105 N.Y. 525

12 N.E. 51

GRAVILLE

v.MANHATTAN RY. CO.

Court of Appeals of New York.

May 10, 1887.

Appeal from general term of the court of common pleas for the city and county of New York.

Action for damages for assault and battery committed by defendant's servant, while plaintiff was a passenger, lawfully traveling upon its train. Judgment for plaintiff. Defendant appeals.

Edward S. Rapallo, for appellant.

L. A. Gould, for respondent.

PER CURIAM.

The counsel for the defendant requested the court to charge the jury that although there were no seats inside the car, and people were standing therein, yet, if there was room for the plaintiff, he was bound to go there. The court refused to charge as requested, and to this refusal the counsel for defendant excepted. We are of opinion that the defendant was entitled to this instruction, and that the exception was well taken.

It appears from the plaintiff's testimony that he boarded a train going north, at Houston street, at about 6 o'clock Sunday evening. The car at the time was crowded, and the plaintiff, with other passengers, stood on the platform. When the train reached Thirty-fourth street, the brakeman requested the plaintiff and the other passengers on the platform to go inside the car, but, as there was no room in the car at that time, the plaintiff did not do so. Passengers got out of the car at Forty-second street, and, on the train leaving that station, the conductor requested the plaintiff to go inside, but he declined to do so. The conductor or brakeman then pushed the plaintiff inside the car. When the train reached Forty-seventh street, the plaintiff, as he testifies, passed from inside the car onto the platform, for the purpose of leaving the train at that station, and when he reached the platform the conductor took hold of him and pulled him off the car, and a struggle ensued between the plaintiff and the conductor, the details of which it is unnecessary to state. The plaintiff on the trial testified to the act of the brakeman in pushing him into the car, and to the subsequent assault at the station, and relied on both ects as constituting grounds of recovery. Both of the transactions were litigated without objection, and were submitted by the court to the jury, and they rendered a general verdict.

The request to charge related to the first assault, and, if it should have been granted, the error cannot be disregarded. The counsel for the defendant on the argument sought to justify the act of the brakeman in pushing the plaintiff into the car on the ground that his standing on the platfrom was a dangerous act, and interfered with the proper management of the train, and that the brakeman was authorized to use necessary force to compel the plaintiff to go inside the car if there was standing room, although all the seats were occupied. This question is not, we think, open to the defendant on this record. The court...