Stutsky v. Brooklyn Heights Railroad

88 N.Y.S. 358

• Court: Appellate Terms of the Supreme Court of New York
• Decided: May 19, 1904
• Status: Published

Opinion

PER CURIAM.

It was error for the trial judge to deny defendant’s motion made at the close of the trial to direct a verdict for the defendant. The evidence does not show that the defendant failed to exercise due care in guarding the plaintiff from injury while he was on the car. He testified he was assailed by three passengers who were on the car ; that before he was assaulted they did not say anything to him; that the first thing that happened to him was that somebody pulled his whiskers, and somebody else hit him in the eye. To hold the defendant liable under such circumstances would be to make the defendant guaranty the safety of a passenger under all circumstances while on the defendant’s car. All the defendant was required to do was to exercise the requisite care. The defendant’s servants had no reason to anticipate or expect that the plaintiff would be injured as he was injured.

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