Butler v. Steinway Railroad — 33 N.Y.S. 845

Majority

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BUTLER v. STEINWAY R. CO. OF LONG ISLAND CITY.

(Supreme Court, General Term, Second Department.

May 13, 1895.)

Headnote

Appeal—Review—Weight of Evidence.

A verdict in favor of plaintiff in an action for damages alleged to have been caused by an assault by defendant’s servant on plaintiff while a passenger on defendant’s railroad car will be set aside as against the weight of the evidence, where it appears that plaintiff entered the car with a dog, which he refused to remove when informed that it was against the rules of defendant, whereupon the conductor removed him from the car; that he was not struck or kicked; and that no anger was manifested by the conductor, and that plaintiff was at the time intoxicated.

Appeal from circuit court, Queens county.

Action by John J. Butler against the Steinway Railroad Company of Long Island City for personal injuries alleged to have been caused by an assault on plaintiff by a servant of defendant. From a judgment entered on a verdict in favor of plaintiff for $1,000, and from an order denying a motion for a new trial, defendant appeals.

Reversed.

Argued before BROWN, P. J., and DYKMAN, J.

McDonough & Collins, for appellant.

Eugene L. Bushe, for respondent.

The verdict in favor of the plaintiff in this action is palpably unjust, and should never receive the sanction of this court. There are sufficient facts undisputed to convince the judicial mind of the injustice done to the defendant by this judgment. The plaintiff entered one of the cars of the defendant with a dog, and, when he was informed that the presence of the animal upon the cars was a violation of a rule of the company, he refused to remove him. By Ms persistence in transgressing the rule of the company, he forfeited his right to continue in the car, and conferred upon the conductor the right to remove Mm therefrom. The trial judge charged the jury that the conductor had the right to remove the plaintiff from the car, and to use as much force as was necessary for that purpose. That reduced the case to the question whether excessive violence was exerted in the removal of the plaintiff from the car. Upon that question the plaintiff held the affirmative, and the preponderance of the evidence is against him. The testimony shows that he was perceptibly under the influence of intoxicating liquor, and such intoxication would naturally obscure his intellect, and destroy his power to recollect the particulars of the transaction. Independent of Ms interest, therefore, and his natural enmity, his testimony is very unsatisfactory. The testimony, taken together, fails to prove the use of unnecessary force. He was not struck or kicked, and the conductor manifested no anger. The plaintiff was pushed from the car. He was injured, but his injury was the result of his own misconduct. Appellate courts interfere cautiously with the verdicts of juries where there are no errors of law, and only questions of fact are involved; but there can be no hesitation in the prevention of injustice. The verdict in this case indicates

p. 846

the presence of misapprehension or prejudice. In our view, 12 fair-minded men, free from prejudice and miscón'ception, will not find, upon the facts of this case, that the conductor of the car used unnecessary violence in the removal of the plaintiff therefrom.

The judgment and order denying the motion for a new trial upon the minutes of the court should be reversed, and a new trial granted, with costs to abide the event.