Stutsky v. Brooklyn Heights Railroad — 88 N.Y.S. 358

Majority

p. 358

STUTSKY v. BROOKLYN HEIGHTS R. CO.

(Supreme Court, Appellate Term.

May 19, 1904.)

Headnote

1. Carriers—Responsibility to Passengers—Unanticipated Assaults.

A street railway is not a guarantor of the safety of its passengers under all circumstances, but is required only to exercise requisite care, and' it cannot be held responsible for an assault by one passenger on another, which its servants had no reason to anticipate.

H1. See Carriers, vol. 9, Cent. Dig. § 1125.

Appeal from Municipal Court, Borough of Manhattan, Thirteenth District.

Action by George Stutsky against the Brooklyn Heights Railroad Company. From a judgment for plaintiff, defendant appeals. Reversed.

Argued before FREEDMAN, P. J., and TRUAX and SCOTT, JJ.

G. D. Yeoman, for appellant.

Siegel & Louis, for respondent.

It was error for the trial judge to deny defendant’s motion made at the close of the trial to direct a verdict for the defendant. The evidence does not show that the defendant failed to exercise due care in guarding the plaintiff from injury while he was on the car. He testified he was assailed by three passengers who were on the car ; that before he was assaulted they did not say anything to him; that the first thing that happened to him was that somebody pulled his whiskers, and somebody else hit him in the eye. To hold the defendant liable under such circumstances would be to make the defendant guaranty the safety of a passenger under all circumstances while on the defendant’s car. All the defendant was required to do was to exercise the requisite care. The defendant’s servants had no reason to anticipate or expect that the plaintiff would be injured as he was injured.

Judgment is reversed and a new trial ordered, with costs to appellant to abide the event.