McCullen v. New York & North Shore Railway Co.

68 A.D. 269, 74 N.Y.S. 209

• Court: Appellate Division of the Supreme Court of the State of New York
• Decided: January 15, 1902
• Status: Published

Opinions

Hirschberg, J.:

Wigmore, the plaintiff’s intestate, while a passenger on defendant’s railroad, was asked by the conductor for his fare, and refusing to pay the same was ejected by the conductor and received injuries which resulted in his death.

We think the judgment and order must be reversed for the error contained in the refusal to charge the third request mentioned in the dissenting opinion of the presiding justice, the probable effect of which was to convey-.to the jury the idea that a recovery might be had for an injury which resulted from resistance on the part of the passenger to the act of lawfully ejecting him from the car accompanied by no unnecessary violence, It is true the court had previously charged correctly upon the general question of the •right of the defendant to eject the passenger under certain circumstances' and conditions, using no unnecessary force. That no recovery could be had for an injury resulting from such resistance might be possibly inferred, but was not expressly stated. The defendant was entitled to have the jury informed that if the injury resulted from such resistance no recovery could be had; and had the court, upon the request being made, instructed the jury that the plaintiff could not recover within the spirit and meaning of what he had already charged, a different question would be presented. ‘ The express refusal to so charge when requested, in the absence of any previous direct information conveyed to the jury upon that subject, may have misled them into the belief that a recovery could be had for such injury, and we, therefore, think a new trial necessary.

• All concurred (Bartlett, J., in result), except Goodrich, P. J., who read for affirmance, and Jenks, J., taking no part.