Gardner v. Interborough Rapid Transit Co.

45 Misc. 424, 90 N.Y.S. 373

Opinion

Fitzgerald, J.

Plaintiff witnessed some altercation between the station porter of the defendant and some persons on the platform of the station, who were evidently waiting to take passage upon a train. In this controversy he was, whatever its cause, in no way concerned. No duty of interference devolved upon him and no one called on him to interfere, nevertheless he voluntarily assumed to take sides, The persons who had the original trouble with the porter were not infants, neither were they acquaintances or friends of the plaintiff. They appear to have been abundantly able to take care of themselves. The action was brought upon defendant’s contract to transport in safety, plaintiff to his destination. To render a common carrier liable for the act of a servant, according to the weight of authority, it must be shown that the act complained of was done in the discharge of the servant’s duty to his employer which related to the passenger. Burns v. Glens Falls R. R., 4 App. Div. 426.

The plaintiff’s own story is far from satisfying these requirements, and the facts and circumstances as shown by the entire evidence closely resemble the situation reviewed by the Court of Appeals in Mulligan v. N. Y. & R. B. R. Co., 129 N. G. 506. As was stated in Scott v. Central Park N. & E. R. R. Co., 53 Hun, 415, “It has not as yet been held that, where a passenger by his own misbehavior, while being transported, has provoked a personal encounter between himself and one of the employees of .the carrier, that the carrier is liable for the results.”

Freedman, P. J., and Bischoff, J., concur.

Judgment reversed, and new trial ordered, with costs to appellant to abide event.