The plaintiff complains of assault by a conductor of the defendant. The plaintiff’s version is that, while boarding a car, he was abused in foul language by the conductor for brushing against him. Upon the plaintiff’s retort that it was the conductor’s own fault, and plaintiff’s inquiry why the car started so quickly, the conductor repeatedly struck him, threw him off the car to the ground, stopped the car, alighted, walked back and again struck him. The plaintiff was not corroborated save in some respects by Williams, a traveler on the street. The defendant’s version is that the plaintiff ran after the car, boarded it, inquired whether it was a bridge car, and, when told it was an Astor place car, stepped backwards off the car and fell to the ground. Thereupon the car was stopped, the conductor alighted, went to the plaintiff, took out a note book, and, after some conversation, started to return to the car with his back turned to the plaintiff, who struck the conductor, and was dealt a blow in return. The witnesses for the defendant were the motorman, a switch-man and a policeman. The conductor was not called, but evidence was given that he had left the employ of the defendant and could not be found. The policeman did not witness the occurrence, but testified that he came up and arrested the conductor, upon complaint of the plaintiff, for an assault which, the plaintiff said, had been made upon him in the street, without statement that any assault had been made upon him while he was upon the car, and that after six adjournments in the Police Court without appearance on the part of this plaintiff, and, after two months, the conductor was discharged.
It is insisted that the plaintiff was prejudiced by the admission of evidence to show that the conductor was finally discharged after arraignment in the Police Court for assault. But the learned counsel for the plaintiff opened the door for the defendant when, upon his cross-examination of the motorman, he elicited that the conductor had been arrested, and, therefore, I think that the court could, in its discretion, receive testimony upon the same subject. (Keeler v. Delavan, 4 Barb. 317 ; Abb. Tr. Brief, Civil Jury Trials [2d ed.], 238, and authorities cited.)
The judgment should be affirmed, with costs.
Present—Goodrich, P. J., Bartlett, Jenks and Hooker, JJ.
Judgment and order unanimously affirmed, with costs.