Lyons v. Broadway & Seventh Avenue R. R.

The case was fairly tried, and the exceptions taken to the admission of evidence seem to be without force. The complaint, as amended, claims damages for loss of service arising from inability to work, and charges that the injuries were of a permanent character, so that the testimony upon these subjects was within the issue. The only exception to the charge is that part wherein the court said: “ The company is liable for the willful acts of its servants while performing duties which it owes to its passengers.” The plaintiff was riding upon the front platform of the car. Neither the conductor nor driver objected to his presence there. He gave the conductor a twenty-five cent piece in payment of the fares of the plaintiff and a friend who was with him. The conductor handed him fifteen cents in change.

The plaintiff found fault with the ten cent piece he received, and the conductor gave him another instead. The driver took offense at the passenger ringing the conductor up, and threw the plaintiff off the car. We think the defendant is liable for the consequences of this act The driver was in charge of the front platform of the car, had the power to keep any improper person from it, and had the right to put any disorderly person off it. He was not bound to ask the conductor to do this or consult him about doing it. If he put the wrong person off. it was a mistake for which the master was liable. Having the power as servant of the corporation to expel improper persons from the platform, and the master being liable for his mistakes committed in the exercise of this authority, the defendant is answerable, though the act was willfully done. The North Chicago R. Co. v. Gastka, 21 No. Ea. Rep., 522 ; Mott v. Consumers' Ice City., 73 N. Y., 543 ; Dwinelle v. N. Y. C. & H. R. R. R. Co., 30 N. Y. State Rep., 579, 582.

The trial judge was careful not to hold that the master was liable for acts outside of the servant’s duty and his master’s business, or for things done maliciously for the servant’s own purposes, for he confined the liability to willful acts of the servant “ while performing duties which the corporation owed to its passengers.” One of these duties, we apprehend, was to protect rather than endanger the lives and limbs of passengers. In Stewart v. Brooklyn R. R. Co., 90 N. Y., 588 , the court of appeals declared that a carrier undertakes to protect the passengers against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to the passenger, and held that the rule relieving a master from liability for a malicious injury inflicted by his servant does not apply as between a common carrier of passengers and a passenger.

Me Adam, Ch. J., McG-own and Fitzsimons, JJ., concur.