Ansteth v. Buffalo Railway Co.

Hatch, J. —It appears without conflict of evidence that plaintiff was a trespasser upon defendant’s car, and it may be assumed that he intended when he boarded the car to ride thereon until the conductor approached where he stood, and then alight while the car was in motion. But the jury have found that while he [703] was thus upon the car, and while it was in rapid motion, the conductor, without the boy’s knowledge, came to the front of the car, made a motion towards the boy and uttered an ejaculation, which acts frightened and caused him to suddenly loose his hold on the rail of the dash, in consequence of which he was thrown from and under the car, receiving the injury complained of. Upon the trial the motion made by the conductor was illustrated to the jury, but it is not described in the record; enough is stated, however, to show that he reached out toward the boy or made a motion towards him with his hand, and at the same time uttered the ejaculation. The jury were, therefore, authorized to find, and such is the effect of their verdict, that the acts of the conductor were intended to, and had the effect of causing the boy to leave the car at the time and in the manner which he did. It was the conductor’s duty to keep his car free of trespassers, and he had the undoubted right to put the boy off the car. But he was required to do it in a proper manner, having regard to the safety of the person. The conductor had no right, by demonstration and ejaculation, to produce fear, and thus cause the boy to attempt to alight or loose his hold, if by so doing he unnecessarily exposed the boy to the hazard of injury, any more than he had the right, by physical power, to expose him to the same injury. And if what the conductor did caused the boy to act involuntary and destroyed the exercise of care and caution for the protection of his person which he could or would otherwise have exercised, and from which the injury resulted, such act was without authority, and carried with it responsibility for the damage sustained. Clark v. N. Y., L. E. & W. R. R. Co., 40 Hun, 605; 2 St. Rep. 249; 113 N. Y. 670; 23 St. Rep. 994; McCann v. Sixth Ave. R. R. Co., 117 N. Y. 505; 27 St. Rep. 834. As before observed, the finding of the jury upon this question is favorable to the plaintiff. There is a sharp conflict in the evidence respecting the conduct of the conductor, and also tending to establish that the injury was the result solely of the boy’s acts. But there was sufficient to submit to the jury, and they have found that a case was made out, and such finding is conclusive upon us. The judgment and order appealed from should be affirmed.