McMahon v. Interborough Rapid Transit Co.

The jury rendered a verdict in favor of the plaintiff for the sum of $300. The defendant moved to set aside said ver

The question of the probability of the plaintiff’s story as testified to by her, its corroboration by her witness, and its contradiction by defendant’s witnesses, was submitted to the jury. After due deliberation the jury found for the plaintiff for the sum mentioned. The proposition raised by the defendant on this motion is: To what extent is the defendant liable to this plaintiff for the injury sustained from the act of a fellow passenger under the facts of this case, in the light of the authorities applicable? In Koch v. Brooklyn Heights R. R., 75 App. Div. 282 , 78 N. Y. Supp. 99 , Jenks, J., says:

“A common carrier of passengers must exercise the utmost vigilance to-maintain order and to guard its passengers from violence which reasonably might be anticipated or might be expected under all the circumstances and' in view of the number and character of the passengers.”

“This was no sudden indignity, immediately followed by an escape of the offenders, but continued conduct of profanity, abuse, and horseplay, which began when the plaintiff entered the car, continued for some time, and culminated in assault and injury. The conductor had notice at the beginning of this misconduct, and was requested to interfere. At first he did nothing, on the ground that if he commanded the offenders to cease they would not; and all that he finally did was that which he said would accomplish nothing. Moreover, when he did tell the offenders to stop, the answer was but laughter, which indicated contempt or derision, and was no assurance of decent behavior thenceforth. And thereupon the conductor washed his hands of the affair and went away. To my mind this does not as a matter of law acquit the defendant of its obligation to the plaintiff; and I find no proof that warrants the conclusion that the conductor was necessarily called away by the discharge of his official duties so that his mere perfunctory request, which he foretold would be futile, could not as a matter of law be held the exercise of utmost vigilance to protect the plaintiff from such flagrant abuse.’’

It surely cannot be said, when the conductor in the case at bar, after being notified of the misbehavior and rioting of the offending passengers and the probable resultant inj'ury to other passengers therefrom, before the injuries were received by this plaintiff, that his proceeding to the rear end of the car, laughing, making no attempt to quell the disturbance, was the exercise of the utmost vigilance to maintain order and to guard defendant’s passengers from the violence which he could have reasonably anticipated and which might naturally be expected from the misconduct of said offenders. In Putnam v. Broadway & Seventh Ave. R. R., 55 N. Y., at page 113, Allen, J., says:

“There is no such privity between a railway company and a passenger as to make it liable for the wrongful acts of the passengers upon any principle. Pittsburgh, Ft. W. & C. R. R. v. Hinds, 53 Pa. 512 , 91 Am. Dec. 224 . But a railroad company has the power of refusing to receive as a passenger or to expel any one who is drunk, disorderly, or riotous, or so demeans himself as to endanger the safety or interfere with the reasonable comfort and convenience of other passengers, and may exert all necessary power and means

to eject from the cars any one so imperiling the safety or annoying others; and this police power the conductor or other servants of the company in charge of the car or train is bound to exercise with all the means he can command whenever occasion requires. If this duty is neglected without good cause, and a passenger receives injury, which might have been reasonably anticipated or naturally expected, from one who is improperly received or permitted to continue as a passenger, the carrier is responsible. Pittsburgh, Ft. W. & C. R. R. v. Hinds, supra; Flint v. Norwich & N. Y. Transp. Co., 34 Conn. 554 , Fed. Cas. No. 4,873, 6 Blatchf. 158 . In the first case cited a passenger was seriously injured by a large body of drunken and riotous persons, who came upon the train in defiance of the conductor in charge; and the court in banc held that upon the evidence in that case the only question which should have been submitted to the jury was whether the conductor did all he could to quell the riot and ej.ect the rioters, and that if he did not the company was liable. * * * In the other case the action was for an injury received by the plaintiff, a passenger on defendant’s steamboat, from the falling and consequent discharge of a loaded musket by one of a great number of riotous and drunken soldiers engaged in an affray and occupying a part of the boat assigned to passengers; the plaintiff being suffered to enter the boat and pass to this part of it without any warning from the officers of the boat or others of the presence of these soldiers, and the defendant making no effort to preserve the peace or remove the offenders. Upon conflicting evidence the jury found for the plaintiff. Judge Shipman, in his charge to the jury, instructed them that ‘the defendants were bound to exercise the utmost vigilance in maintaining order and in guarding passengers against violence, from whatever source arising, which might reasonably be anticipated or naturally be expected to occur in view of all the circumstances and of the number and character of the persons on board.’ This, as a rule of duty and liability, is in strict analogy and consistent with the rules by which the liability of common carriers of persons for hire is determined in other cases, and seems to be well expressed and properly limited. * * * The conduct- or was only called upon to act-upon improprieties or offenses witnessed by him or made known to him in some other way, and the defendants can only be charged for neglect of some duty arising from circumstances of which the conductor was cognizant or of which he ought in the discharge of his duties as conductor to have been cognizant.”

The facts in the case at bar, as found by the jury, show that the misconduct of the offending co-passengers occurred as testified to by the plaintiff and her witnesses; that such misbehavior was actually called to the attention of the guard in charge of the car in question, seasonably and timely, and before the injuries complained of were sustained by the plaintiff. The rule cannot be better or more concisely expressed than as stated by Judge Shipman in Flint v. Norwich & N. Y. Transp. Co., supra:

“That for any neglect or omission of duty in the preservation of order and the removal of dangerous and offensive persons by the owner of a public conveyance for the transportation of passengers, or his servants or agents, the carrier is liable for any injury to other passengers which might reasonably be anticipated or naturally be expected to occur in view of all the circumstances and of the number and character of the persons on board.” Thompson v. Man. Ry., 75 Hun, 548 , 550, 27 N. Y. Supp. 608 .

It is so firmly established in our jurisprudence as to preclude discussion that a person is answerable for the natural and probable consequences of his wrongdoing, though as a general proposition he is not liable for the damage resulting from his wrongful act when not the natural or ordinary consequences thereof, unless it be shown that he knows or has reasonable means of knowing that consequences not

The motion to set aside the verdict and for a new trial is denied. The defendant may have an exception to the denial of its motion. It may have 10 days’ stay of execution after notice of entry of judgment, and 30 days to make and serve a case.