Majority
p. 644Konstantine Kosters, by Guardian, etc., Resp’t, v. The Brooklyn Bath and West End Railroad Company, App’lt . (Brooklyn City Court, General Term, Filed October 22, 1894.)
Headnote
Trial—Charge—Assault and ^attery.Where, in an action for .an > assault, defendant testifies that he did not strike the plaintiff until the latter struck him, he is not entitled to an instruction as to provocation by resulting language.
Appeal from a judgment, emtered on a verdict in favor of the defendant, and from an order cfenyinga motion for a new trial.
Morris & Whitehouse, for app’lt; '\£eo. W. Miller, for resp’t.
The plaintiff sued to l-Ncooer damages for an alleged assault committed upon him while a '.passenger on defendant’s car by the conductor. The only question for our consideration is whether the &"OT’t erred in refusing tq charge at defendant’s request that “ifAíhe pf intiff commenced the altercation, and in the course ojj- it addressed indecent and insyilting language to the cokfVddtorfand language skLas w,as cale.vilated or likely to pro"duee an assault, the verdict must be 'or defendant. ” Assuming that this is a sound statement of law under the authority of the prevailing opinion in Scott v. Central Park, etc., R. R. Co., 53 Hun,
p. 645
414 ; 24 St. Rep. 754 , it seems to us that the court charged so much thereof as was applicable to the facts in this case. The plaintiff testified that the conductor, after he .had paid his fare, demanded of him, at several -different times, the payment of the same, and without provocation, save his refusal to pay his fare a second time, that the conductor clubbed him severely. The conductor testified that at different times he demanded the fare, which was not paid, and that plaintiff, while standing on the platform, used abusive language to .him, after which he stepped from that platform to the platform of the adjoining car, when the plaintiff drew an iron wrench out of his pocket, and struck at him; that he then took his eight-inch stick out of his pocket and struck the plaintiff. It is.manifest from this testimony, if the conductor is to be believed, that this assault on plaintiff was not provoked by any insulting words, but by the threatened assault upon him by plaintiff with the .wrench. ■ The court charged that if plaintiff assaulted or threatened to assault the conductor, the latter was justified in assaulting plaintiff. The testimony of the conductor is the only evidence that, before he assaulted the plaintiff, the latter used insulting language, or threatened to assault the con-ductor. After examining the testimony, we see no reason to disturb the verdict.
Judgment and order affirmed, with costs.