Hanley v. Brooklyn Heights Railroad

The plaintiff complained that the defendant’s conductor assaulted her when a passenger and attempted to eject her from a car of its electric street surface railroad. The defendant made general denial, and appeals from a judgment of $600 entered on the verdict of the jury.

The plaintiff and her companion were passengers in a car of the Nostrand Avenue Line. They paid their fares and received transfer tickets. The tickets read:

“Good only for the day printed hereon, within the time limit punched and at intersection of issuing line.”

The learned court held that the rule quoted was reasonable, but submitted to the jury whether there was a substantial violation thereof in this casé. This was excepted to by the defendant. The court also refused under exception to charge the jury that:

“Under the facts In this case, it being undisputed that this plaintiff boarded the car at a place other than the intersection of Fulton street and Nostrand avenue, the defendant company, through its conductor, had the right to refuse to accept said transfer as payment of the plaintiff’s fare.”

The reasonableness of the rule, as the court rightly held, was a question of law. Hibbard v. N. Y. & Erie R. R. Co., 15 N. Y. 455 ; Vedder v. Fellows, 20 N. Y. 126 ; Avery v. N. Y. C. & H. R. R. R. Co., 121 N. Y. 31 , 24 N. E. 20 . The error was in the submission of the question of substantial violation in the face of the undisputed fact that the plaintiff boarded the car at a point substantially distant from the intersection. The court seemed to think that because the plaintiff testified that she first waited at the intersection between five and ten minutes for a car, when none came, that she was just convalescent, and that the day was windy and chilly, the jury might find that she did not violate the rule because she walked away on the street of intersection and boarded a car at the distance of a block therefrom. If this theory be correct, then the rule could be practically nullified; for if the passenger, for personal and peculiar reasons, could violate the rule and yet resist the enforcement to the point 'of force, and recover damages for such enforcement if his reasons seemed well founded to a jury, the defendant would not dare to enforce the rule at such peril. If the wind blew sharper at the intersection than elsewhere, if the passenger could gain a few moments’ time by walking on to meet the car, if he objected to loungers or other wayfarers at the intersection, if he was too lightly clad to stand at g'aze, and other circumstances miglit seem to the passenger, and possibly to the jury, good excuse for setting the rule at naught: These may be extreme examples, but it cannot be said how far the peculiarities or idiosyncrasies of thfe individual might go. Certainly the conductor could not well receive dispensing power.He could not conduct his car, and also take the evidence of any passenger who boarded it at places distant from the point of intersection to

The harm from the error was radical, because the court in effect instructed the jury that it might find that the plaintiff had not violated the rule. If the jury found compliance and credited the story of the plaintiff, it could then regard the act of the conductor as an unprovoked and unjustifiable assault. If, on the other hand, the question of substantial compliance had not been submitted, and the jury had been instructed that the rule was reasonable, as the court decided, and that the defendant had a right to enforce it, even to ejection finally by force and such force as was necessary, we cannot say that it would have arrived at the verdict rendered, or in any event at the amount thereof.

The judgment and order must be reversed, and a new trial granted.

Judgment and order reversed, and new trial granted; costs to abide the event. All concur.