Four men, including the plaintiff, boarded one of the defendant's cars at Yonkers to go to Fordham. It was an open car, and three of the men, not including the plaintiff, sat together upon one of the cross seats. The plaintiff sat on a seat behind the other three. Before reaching Fordham an altercation arose between one of the men, other than the plaintiff, and the conductor of the car in regard to the amount of change returned by the conductor from a bill tendered by the man in payment of his fare. The man in dispute with the conductor attempted to stop the car, and he rang the bell several times. The conductor then attempted to eject him. The car was stopped and the motorman came to the conductor's assistance, and together they pulled him from the seat. In the affray the conductor's pocket was torn and the money in his pocket was scattered on the floor of the car. After the man was dragged from the car a fight ensued on the ground by the side of the car. The plaintiff did not in any way take part in the controversy or the fight. The only testimony affecting the plaintiff is given by himself, and it is as follows:
"I do not know what the quarrel was for. When the car stopped I went over to separate the fight. Before I could reach those two men the motorman took hold of me and knocked me down and punched me, and while I was on the ground still he struck me. I was kind of dazed and they took me and put me in front of the extra car and brought me to the police station in Yonkers."
It does not appear that the plaintiff struck or took hold of any one. After the plaintiff had been knocked down by the motorman, the conductor and motorman carried him to another car, on which he was detained, and subsequently taken back to Yonkers, where a criminal charge was made against him for an assault. *Page 393
Whatever may be the truth about this controversy, it now appears without contradiction from the fragmentary and very unsatisfactory record that the plaintiff was wholly free from any fault or intentional wrong. He not only did not engage in the fight, but he had no intention of engaging in the fight. Without an avowed or apparent intention of abandoning his journey or his rights as a passenger, he temporarily stepped from the car for the purpose of separating the conductor and a fellow-passenger who were engaging in the fight and thus preventing the car from proceeding on its journey. Can it be true that if a person temporarily steps from a car to aid in removing an obstacle from the track or in properly releasing an employee of the railroad company from enforced detention, that he thereby loses the right to be carried in the car to his intended place of destination?
The plaintiff's complaint was dismissed by the court without a motion made therefor by the defendant and before the plaintiff had presented all of his testimony. If a new trial had been taken herein it is very possible that it would have resulted in showing the whole matter in a very different light, but it does not appear from the facts as they are now presented that the plaintiff disobeyed any rule of the railroad company. He did not interfere with the defendant's servants or so conduct himself as to justify the assault upon him or his detention. If the plaintiff retained his identity as a passenger and the relation of carrier and passenger continued between the plaintiff and defendant the defendant is liable for the battery and for the improper detention. (Stewart v. Brooklyn Crosstown R.R.Co., 90 N.Y. 588; Dwinelle v. N.Y.C. H.R.R.R. Co.,120 N.Y. 117; Palmeri v. Manh. R. Co., 133 N.Y. 261; Gillespie v. Brooklyn H.R.R. Co., 178 N.Y. 347.)
It was the defendant's duty to safely carry the plaintiff as a passenger to his destination. Instead of carrying him to his destination he was by the defendant's servants forcibly prevented from continuing his journey and forcibly put upon a car in which he was taken in the opposite direction from *Page 394 that desired by him. On the facts as they now appear the plaintiff had not as a matter of law so lost his identity as a passenger as to justify the dismissal of his complaint. (Parsons v. N.Y.C. H.R.R.R. Co., 113 N.Y. 355, 362.)
The order should be affirmed and judgment absolute ordered against the appellant on the stipulation, with costs in all courts.
CULLEN, Ch. J., O'BRIEN, EDWARD T. BARTLETT, HAIGHT and VANN, JJ., concur with per curiam opinion; HISCOCK, J., concurs with CHASE, J.
Ordered accordingly.