Smith v. Manhattan Ry. Co.

Pryor, J. By its contract of carriage the defendant assumed an absolute obligation to protect the plaintiff as well against the willful as the negligent acts of its servants. Stewart v. Railroad Co., 90 N. Y. 588; Steamboat Co. V. Brockett, 121 U. S. 637, 7 Sup. Ct. rep. 1039; Railroad Co v. Jopes, 142 U. S. 18, 12 Sup. Ct. Rep. 109; Craker v. Railroad Co., 36 Wis. 657; Goddard v. Railroad Co., 57 Me. 202; Tayl. Priv. Corp. par. 347, (2d Ed.) But the defendant contends that, because the plaintiff boarded the train in a manner forbidden by its rules, its servants were justified in inflicting upon him the injuries of which he complains. Conceding that the plaintiff entered the car irregularly, the question is, did that fact alone authorize the defendant to 760 eject him? The rule violated did not interdict access to the car, but only access in a specific mode. The plaintiff had paid his fare. He had a right to go by that train. He was in a place appropriated to passengers, and at the time of the assault he was in no way misconducting himself. The attempt to put him off was not because he was where he had no right to be, but solely because he had got in the proper place in an improper manner. The wrong of which he is accused is not in being, on the train, but in so getting on the train. He was not in delict after being in the car. Although where lie had a perfect right to be, the effort to eject him was made merely because of antecedent misconduct in reaching the place, for the privilege of occupying which he had paid his money. ' His presence on the train being rightful, no matter what the irregularity in getting there, his removal would necessarily have been wrongful. Undoubtedly the defendant has authority to enforce observance of its regulations; but by preventing, not by punishing, the breach of them. The defendant has no power of retribution, and is incapable of compelling conformity to its rules by the imposition of a penalty. But the ejecting plaintiff for an act already accomplished would have involved a forfeiture of his right to be carried on that train. Only by present or prospective, and not by past, misconduct, does a passenger lose his privileges. In Steamboat Co. v. Brookett, 121 U. S. 637, 7 Sup. Ct. Rep. 1039, a passenger voluntarily put himself in a place from which the rules of the company excluded him, and while there was assaulted by the company’s servants. Held, that nevertheless “the company was bound to furnish him safe transportation, and to indemnify him for injuries caused by the improper conduct of its servants.” The adjudication that the wrongful presence of a passenger at a forbidden locality on the vehicle does not forfeit his right to transportation negatives the proposition that his right to carriage when aboard is lost by a breach of regulation in getting aboard. Hitherto the argument has proceeded on the postulate that, when the attempt was made to eject the plaintiff, he was on the train by virtue of an irregular entry. But at Hanover square he left the train, and then re-entered it without resistance or remonstrance from the defendant. Having originally a right to conveyance by that train, and being now on it by no breach of regulation or other misconduct, the attempt to eject him was an utterly inexcusable outrage, for which the defendant might well have been chastised by a much heavier verdict than that of which, without reason, it complains. Judgment and order affirmed, with costs. All concur.