Daniel v. Brooklyn Heights Railroad

The complaint alleges that the plaintiff became a passenger upon one of defendant’s cars and paid his fare; that; in consideration of such fare, the defendant promised and agreed to carry this plaintiff upon its cars and to treat him properly, carefully, and with all respect due him as such lawful passenger; and that, while the plaintiff was such a passenger, the defendant herein, through its agents, wrongfully, illegally, and in violation of the terms of said contract violently assaulted and struck the plaintiff and otherwise ill treated him, and by reason of the premises he suffered humiliation, wounded pride, and disgrace and injuries to his feelings, became sick, sore, and disabled, was for a time compelled to be laid up in bed, and expended money for medicines and medical treatment, and was for a time unable to earn his usual livelihood to his damage in the sum of $500. At the previous trial there was a verdict in favor of the defendant, and upon appeal a new trial was ordered and the judgment reversed. See the opinion of Mr. Justice Lehman ( 67 Misc. Rep. 78 , 121 N. Y. Supp. 577 ). After the reversal and before the second trial, the plaintiff died. Plaintiff’s attorney made a motion to continue the action in the name of the administratrix, which motion was granted. At the second trial the plaintiff’s attorney offered in evidence the testimony of the decedent taken at the first trial. This was rejected, and, .after proof of the death of Benjamin Daniel, the original plaintiff, the action was dismissed. There is only one question involved in this appeal, and that is whether the cause of action set forth died with the •plaintiff or survived to his estate.

[1, 2] The plaintiff endeavors to bring this action within the class of actions which survive by alleging that it was brought for a breach of contract to carry safely. In Kentucky, where a cause of action for assault does not survive, it was held in Winnegar’s Administrator v. Central R. R. Co., 85 Ky. 547 , 4 S. W. 237 , that, where the action is laid in contract for breach of the contract to carry safely, such an action does survive. This case was cited with approval but not on this point in Gillespie v. R. R. Co., 178 N. Y. 347 at page 358, 70 N. E. 857 , 66 L. R. A. 618 , 102 Am. St. Rep. 503 . It was held in the previous appeal of this case, following Busch v. Interborough R. T. Co., 187 N. Y. 388 , 80 N.

[3] Wie think this cause of action survives, and the judgment must be reversed and a new trial ordered, with costs to appellant to abide the event. All concur.