Daniel v. Brooklyn Heights Railroad

LEHMAN, J.

The plaintiff herein claims that he was assaulted by a conductor of the defendant. He has brought an action in the Municipal Court against the defendant, not upon the theory of a tort action for assault and battery, but for a breach of an alleged contract made.by the defendant to carry the plaintiff safely. It appeared at the trial from the plaintiff’s testimony that he had paid his fare on the defendant’s Flushing Avenue line, and had received a transfer ticket from the conductor valid on its face on a connecting line of the defendant only up to the hour of 2 p. m. He left the Flushing Avenue line at its intersection with the Crosstown line, and no Crosstown car which he could enter came along until 10 minutes past 2 p. m. He boarded that car. The conductor took his transfer, and after collecting a few fares returned to him and refused to accept the transfer, because the time limit had expired. There was some discussion as to the plaintiff’s right to use the transfer, and finally the plaintiff told the conductor that he could do what he pleased about it, and'the conductor then seized him and threw him off the car while it was in motion. Even if the conduct- or used more force than was necessary in ejecting the plaintiff, and thereby committed an assault, the plaintiff cannot recover in the Municipal Court, unless the assault was also a breach of contract to carry him safely to his destination. An unlawful assault or an insult to a passenger by the servant of a carrier is a violation of the carrier’s contract by the very person whom it has employed to carry it out. Busch v. Interborough R. T. Co., 187 N. Y. 388, 80 N. E. 197. In this case the serious question is whether at the time of the alleged assault the plaintiff was in the position of a passenger, or whether the conductor by refusing to accept the transfer ticket had lawfully terminated the relation of passenger and carrier, and had then the right to eject the passenger from the car.

The plaintiff had paid the fare on the first car, and the defendant thereby agreed to carry him to his destination. He had received a transfer for use on the second car. He had boarded the second car and given up the transfer, which should have entitled him to be carried on that car according to the original contract. If the transfer was valid, he was entitled to be carried on that car, and was a passenger thereon, even though tjie conductor refused to receive it. Lewyt v. Dry Dock, E. B. & B. R. R. Co., 107 N. Y. Supp. 14, 56 Misc. Rep. 496; Berkelhamer v. Joline, 113 N. Y. Supp. 921. “If he had the right to be in that car without the payment of a second fare, then it was clearly unlawful for the defendant, through its servants, to eject him. * * * ” Jenkins v. Brooklyn Heights R. R. Co., 29 App. Div. 8, at page 10, 51 N. Y. Supp. 216, at page 217.

It is true that the contract to carry a passenger safely arises only upon his express or implied acceptance as a passenger; but in this case the fare had been accepted, and a ticket had been given him as a token of his right to ride on the connecting line. He had entered the car with intent to give up this ticket, and he had actually delivered this ticket to the conductor, and if the ticket was valid the defendant became absolutely liable to carry him safely to his destination, without assault or insult on the part of its servants. Ray v. Cortland & Homer Traction Co., 19 App. Div. 530, 46 N. Y. Supp. 521. It therefore remains for us only to consider whether the ticket was a valid transfer ticket. - I mean by the term “valid transfer ticket” a ticket which the conductor could not refuse under the reasonable rules of the defendant, because, even if the defendant had entered into a valid contract for the carriage of the plaintiff, should the conductor have been justified under the reasonable rules of the defendant in refusing the ticket, then the plaintiff had no right to invite an assault by remaining in the car after he was requested to leave. Monnier v. N. Y. C. & H. R. R. R. Co., 175 N. Y. 281, 67 N. E. 569, 63 L. R. A. 357, 96 Am. St. Rep. 619; Townsend v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 295, 15 Am. Rep. 419.

In the case of Jenkins v. Brooklyn Heights R. R. Co., supra, the Appellate Division of the Second Department decided that a limitation of time on a transfer ticket, where no car passed within that time in which the passenger could find a suitable place, was unreasonable, and the conductor had no right under such circumstances to eject a passenger offering a ticket upon which the time limitation had expired. In Eddy v. Syracuse Rapid Transit Company, 50 App. Div. 109, 63 N. Y. Supp. 645, the Appellate Division, Fourth Department, held that where the limitation on the transfer ticket had expired over an hour, but was due to an error on the part of the conductor punching the time, and the ticket was received without notice of the error by the passenger, and offered upon a connecting line within a few minutes thereafter, the rule of the company requiring the conductor to refuse such a ticket was unreasonable, although— i

“street railroad, companies should be permitted to make and enforce all reasonable rules, with respect to the use of transfers, that may be necessary to protect them against imposition and are consistent with the rights of the public. The rule limiting the use of the transfer to the next car is proper, if there be room on such car for the passenger to ride with reasonable comfort and safety. The rule with respect to the punching of transfers is reasonable, if due precautions be taken to insure its observance and application in such manner as to protect a passenger under circumstances such as are disclosed by this record.”

In the case of Jacobs v. Third Avenue R. R. Co., 71 App. Div. 199, 75 N. Y. Supp. 679, the court held that the rule of refusing the ticket where the time limitation had expired over an hour was unreasonable, even where the mistake in punching the time was made, not by the defendant’s servant, but by the servant of a connecting line, with which the defendant had only a traffic arrangement. These cases are decisive upon the point under consideration, and in fact go much further than we are required to go in holding that the refusal to accept the transfer in this case was unreasonable.

The respondent, however, claims that these cases have been overruled by the Monnier Case, supra. If there are dicta in that case which seem to be contrary to the decision in these cases, they cannot be considered as representing the careful opinion of the court. “While some expressions may be found in one of the opinions rendered for the majority of the court that a passenger must comply with the demands of the conductor, seeking redress subsequently by appropriate action, only three judges concurred in that opinion.” Parish v. Ulster & Delaware R. R. Co., 192 N. Y. 353, at page 358, 85 N. E. 153, at page 154. The opinion in the later case was concurred in by all of the judges' then sitting, and must therefore be considered the settled law of the state. That case decided: First, that “the very foundation of our decision in the Monnier Case” was “that the conductor did not know and could not know the rights of the passenger”; second, that an unlawful limitation in a ticket is entirely void and must be disregarded.

In the case at bar the limitation in the transfer, with which the plaintiff could not comply because no car that he could enter passed within the time limited, was an illegal limitation. Jenkins v. Brooklyn Heights R. R. Co., supra. Therefore the rule of the company requiring such a transfer ticket to be refused by the conductor of the first car passing that point which the passenger was able to enter is both unreasonable and illegal. “A person who becomes a passenger in a public conveyance must subordinate his conduct to all rules that are reasonable and valid.” Monnier v. N. Y. C. & H. R. R. R. Co., supra, 175 N. Y. 285, 67 N. E. 570, 62 L. R. A. 357, 96 Am. St. Rep. 619. But he need not subordinate his conduct to rules that are unreasonable or unlawful. If the plaintiff had knowingly accepted a transfer ticket with a time limitation which had already expired, it would have been a reasonable rule that á conductor should not accept such a ticket. In such a case “the plaintiff’s ejection from the car was not consequent upon the wrongful act of. the conductor who issued the transfer, but rather upon his own disregard of the defendant’s rules, to which he as well as the conductor was subject.” Nicholson v. Brooklyn Heights R. R. Co., 118 App. Div. 13, 103 N. Y. Supp. 310. Where, however, the plaintiff has received a ticket on which the time limit has not expired, the company, to justify its rule, must at least show that other cars, which the plaintiff could have taken, had passed the intersecting point. Moreover, it is by no means clear- that any other car could have passed in the time limited; for the testimony of the defendant’s dispatcher shows that the cars passed there at infrequent intervals, and that no car was due to pass there between 2:09 and 2:37 p.- m.

Under the circumstances, I feel that this case falls within the rule of the Parish Case, and not that of the Monnier Case. The views that I have here expressed are not in conflict with the rule of law as set' forth in Mr. Justice GOFF’S opinion. We differ only in the interpretation of the facts. I agree that the company could put a time limit on the transfer, but only if it used due efforts to have a car pass the intersecting point within the time limit. I find that the reasonable inference from the plaintiff’s testimony is that he waited only 10 or 15 minutes for the car, and that no other car passed, which he could board, in the meanwhile; and I cannot find that the defendant conclusively showed either that the cars ra>n on a four-minute headway or that the company used any efforts to maintain its schedules.

The judgment should be reversed, and a new trial ordered, with costs to appellant to abide the event.

GIEGERICH, J., concurs.