Koch v. Brooklyn Heights R.

and character of the passengers. This is the rule of Putnam v. Railroad Co., 55 N. Y. 108 , 14 Am. Rep. 190 , citing Flint v. Transportation Co., 34 Conn. 554 , Fed. Cas. No. 4,873, and of Carpenter v. Railroad Co., 97 N. Y. 494 , 497, 49 Am. Rep. 540 . The plaintiff complained that while a passenger on a train of the defendant he was assaulted by other passengers, and he now appeals from a judgment entered upon a dismissal of his complaint at the close of his evidence. I think that he had made out a case which did not warrant a dismissal, and that, therefore, the judgment must be reversed, and a new trial must be granted'. His evidence, if credible, established the following facts: The plaintiff, with a companion, became passengers of the defendant. When they began to talk in the German, tongue, other passengers, without any provocation, began to insult and to revile them, to take hold of plaintiff’s hat, and to hustle him. The plaintiff and his companion asked the offenders for peace without success, and thereupon the companion went out to the platform, which was separated from the interior of the car by a glass door, and asked the conductor to interfere. The conductor answered: “I can’t do nothing. If I told them to stop, they wouldn’t do it.” And at first he did nothing, but afterwards he went into the car, told the offenders “to stop that fooling,” and then went back. The offenders, who had only laughed at him, then resumed their boisterous conduct, their insults, and finally their “horseplay,” so that just before they reached a station they threw the hat of the plaintiff to the floor, struck him, and when he rose to regain his hat threw him to the floor, and then walked over him out of the car to the station. This was no sudden indignity offered' on the instant, and immediately followed by the 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 the assault and the 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 yet 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 was but evidence of contempt or derision, and 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 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 said would be futile, could be held, as a matter of law, the exercise of the utmost vigilance to protect the plaintiff from such flagrant abuse.

The judgment should be reversed, and a new trial granted; costs to abide the event. All concur.