Van Voorhis v. Hawes , 12 How. Pr. 406 ( 1855 )

Welles, Justice.

The action was for an assault and battery. It appears by the evidence detailed in the case, that on the 19th day of September, 1858, the plaintiff, with two of her sisters, and some other friends, took the cars at Miller’s Corners, a station on the Canandaigua and Niagara Falls Railroad, a few miles west of Canandaigua, on an excursion trip to Niagara Falls and back. There were a number of persons joined in this excursion from various points on the railroad. On their return in the afternoon, and when the train was between Tonawanda and Akron, Erie county, coming east, the plaintiff was sitting on the wall-seat, when the defendant came- into the car through the east door, from another car in the same train, and came up to where the plaintiff was sitting, seized her by the shoulders—upon which she became frightened, and screamed. The defendant then informed her that another person had offered him two shillings if he would come and kiss her. She then immediately placed her head in her sister’s lap, who was sitting by her side. The defendant then took hold of her, with his thumb in her bonnet and fingers in her hair, and pulled her up in an upright position. At that moment he was pulled away by a man wTho was sitting near. Her bonnet was jammed up, and her hair pulled over her face, as the witnesses stated, in a frightful manner.

The foregoing facts were proved by four witnesses, who agreed substantially in their evidence. On the part of the defendant, it was attempted to be shown that the circumstances attending the transaction were such as to justify the jury in implying a license to the defendant to do what was done by him.

It appeared by the defendant’s evidence, that in another car of the same train, a short time previous to the transaction above detailed, a vote had been taken and passed, that the defendant should pass through the train and kiss all the ladies in the cars. That the defendant thereupon kissed all the ladies in that car, and then passed into the car where the plaintiff and her friends were sitting, with a view of completing this kissing enterprise according to the vote that had been taken.

The plaintiff offered to prove, by one of her brothers, that she was one of a party got up by the witness and what persons composed the party; and that the plaintiff, and the friends she was with, and constituting the party which the witness got up, were in no manner associated with the defendant or any of his company, or with any persons in the other cár. This evidence was, on objection by the defendant’s counsel, excluded by the court. In my judgment, this evidence was competent, and should have been received. It was proper for the purpose of repelling any implication of license. I am, indeed, unable to perceive anything in any of the evidence tending to show a license. On the contrary, some of the defendant’s witnesses testify that the plaintiff resisted the defendant’s attempt to kiss her, and not one of them shows that she assented by word or action. The jury, however, found some ground—(and what it was I have failed to discover)—upon which they wholly acquitted the defendant. If it was that he had a lawful right to kiss the plaintiff without her consent, they mistook the law, and their verdict on that ground should be set .aside. If they imagined they could perceive anything in' the evidence tending to establish such license or consent, or from which it could be implied, the evidence excluded was competent on that question. On either ground, therefore, there must *be a new trial, with costs to abide the event.

Ordered accordingly.