(75 Hun, 548.)

THOMPSON v. MANHATTAN RY. CO.

(Supreme Court, General Term, Second Department. February 12, 1894.) 1. CARRIERS-INJURIES INFLICTED BY FELLOW PASSENGER.

In an action by a passenger for injuries caused by another passenger stepping on plaintiff's foot, it appeared that the person who caused the injury was somewhat intoxicated, but not so far as to prevent him from walking. At the time of the injury he was standing in the car, holding to a strap, and lurching at every turn, and thus accidentally stepped on plaintiff's foot, causing the injury. The attention of the guard was called to the man, with the suggestion that he be put off or found a seat, but there was no evidence of any conduct on his part that would have justified his expulsion from the car. Held, that defendant was not liable. 2. SAME-INJURY INFLICTED BY CROWD ON PLATFORM.

While plaintiff was leaving defendant's car, and endeavoring to make her way through a crowd of persons on the platform, some one stepped on her foot. The guard had requested the people on the platform to allow the passengers to leave the car before they attempted to enter, but his request was not heeded. Held, that defendant was not liable for plaintiff's injury.

Appeal from circuit court, Kings county.

Action by Julia V. D. Thompson against the Manhattan Railway Company to recover damages for injuries to plaintiff's foot. From a judgment dismissing the complaint, plaintiff appeals. Af firmed.

Argued before DYKMAN, PRATT, and CULLEN, JJ.

Chas. J. Patterson, for appellant.

Davies, Short & Townsend, for respondent.

DYKMAN, J.

Α

This suit was for the recovery of damages for injuries to the plaintiff's foot. The complaint contains two counts for injuries to the same foot. The first injury was by being trodden upon by a passenger who was standing in the same car where the plaintiff was seated, about the 1st of June, 1888. The plaintiff entered the car at the City Hall station, and after it started she noticed a man in a state of intoxication standing in the aisle, holding onto a strap, nearly in front of her. After the man had been in that position some time, he lurched, and stepped on the plaintiff's foot. He was holding onto the strap, and lurching at every turn. Some ladies appeared to be frightened, but neither they nor the plaintiff made any special manifestation of their fear. A passenger called the attention of the guard to the intoxicated man, and suggested that he be put off or found a seat, and made some other suggestions, but he was not removed. He addressed no one, threatened no one, and was neither obscene nor profane, so far as we can gather from the record. In relation to the second cause of action the facts are these. The same foot of the plaintiff was stepped on about three years afterwards, on the platform of the defendant's station at the city hall, in New York city, as she left the defendant's car. She was returning home, and reached the station about 6 o'clock in the evening, when the station platform was unusually crowded. When the train came to a stop, the guard

on the car platform opened the car gate, and cried out, "Let them off first," and then left the car. The plaintiff landed safely, and had advanced a few steps on the platform, pushing her way through the crowd, when another person stepped on the same foot, and inflicted the second injury. At the trial, when the plaintiff rested her case, the trial judge dismissed the complaint on motion of the defendant, and the plaintiff excepted to such dismission.

The question, therefore, is whether the testimony introduced on the part of the plaintiff was sufficient to carry the cause to the jury. Carriers of passengers are not insurers of their personal safety against all contingencies. They are responsible only for want of care or skill. As, therefore, they are liable for failure to exert such care and skill, they are bound to take all reasonable means and measures to secure the safety and comfort of their pas sengers. In the exercise of that power they have the right to repress disorderly conduct in their vehicles, and to expel therefrom persons whose conduct is such as to render it reasonably certain that disturbance or impropriety will follow. Vinton v. Railroad Co., 11 Allen, 304. There is no legal principle which imposes liability upon a carrier of passengers for the wrongful acts of the passenger; but because such carriers have the right to refuse passage to one who is drunk or disorderly, and to expel him after he has been received if he so conducts himself as to be dangerous to other passengers or interfere with their comfort, and it is their duty to expel persons who imperil the safety or annoy their fellow passengers, they may become responsible for injuries inflicted or resulting as a consequence of such negligence. Yet it must be borne in mind that all passengers have the same legal rights, of which they cannot be deprived until they are forfeited by their misconduct. A man in a state of inebriety has a legal right to ride in a public conveyance. So long as he remains quiet, and molests no one, he cannot be legally expelled. It is only when he becomes dangerous or annoying to other passengers that he becomes liable to expulsion. The question was fully examined in the court of appeals in our state in the case of Putnam v. Railroad Co., 55 N. Y. 114, and the principles there laid down were these: A railroad company is not liable for the wrongful acts of a passenger, but it is bound to exercise the utmost vigilance in maintaining order and guarding its passengers against violence. It has authority to refuse to receive as a passenger, or to expel, one who so demeans himself as to endanger the safety, or interfere with the reasonable comfort and convenience, of other passengers; and this police power the conductor or other servant in charge of the car or train is bound to exercise, with all the means at his command, when occasion requires. If this duty is neglected, and in consequence a passenger receives injury which might have been reasonably anticipated, the company is liable. The fact that an individual has

It

drunk to excess will not, in every case, warrant his expulsion. is rather the effect on him, and the fact that, by reason of his intoxication, he is dangerous or annoying to others, that gives the

v.27 N.y.s.nu.5—39

right, and imposes the duty, of expulsion. The conductor is only called upon to act upon improprieties or offenses witnessed by or made known to him, and the company can only be charged for the neglect of some duty arising from circumstances of which the conductor was cognizant, or of which, in the discharge of his duties, he ought to have been cognizant. That was the celebrated carhook murder case, when Foster killed Putnam with a car hook. Both were passengers on a surface car. Foster was tried for the crime, and convicted of murder, and executed. Thereafter the administratrix of Putnam brought civil suit against the railroad company for the recovery of damages resulting from his death, which she claimed was the result of the negligence of the company. The court of appeals held the facts, even in that case, insufficient to charge the railroad company with negligence, and the misconduct of Foster in that case was much more disorderly and annoying than that of the man who inflicted the injury upon the plaintiff. Foster made himself obnoxious to the other passengers, insulted a lady, and made threats of personal violence against Mr. Putnam. This man did nothing of that kind. He was in a state of inebriation, but not very profound, as we assume from the fact that he kept his feet, and, as we must assume from the testimony of the plaintiff, walked into and out of the car. His inebriety made him neither belligerent nor loquacious. There is no claim that his injury to the plaintiff was intentional, and we detect no misconduct on his part that would have justified his expulsion from the car. We also find the evidence entirely insufficient to charge the guard with any neglect of duty which the law imposed upon him. It is true that his attention was called to the man, but he neither saw nor received information of any impropriety, nor anything to indicate a disturbance. It follows that we find no cause of action under the first count.

Under the second count there is no reason for an extended examination. The railroad company was bound to furnish a safe and convenient place of exit from its car, and it did so. The station platform was in order, and adequate for the strain to which it was subjected. The plaintiff left the car in a crowd of people, and took one or two steps upon the platform, when some person trod upon her foot. There was no sign of approaching danger, and it could not have been averted. The guard directed the people to allow the passengers to leave the car first, but his request was unheeded, and he was powerless. He saw nothing to indicate danger to the plaintiff, and her injury was an accident which no ordinary diligence would prevent, and for which the company cannot be made liable. It thus appears that the plaintiff had no cause of action against the defendant, and the judgment should be affirmed, with costs. All concur.

(76 Hun, 23.)

ROOT v. NEW YORK & N. E. R.

(Supreme Court, General Term, Second Department.

PRINCIPAL AND AGENT-POWERS OF AGENT.

CO.

February 12, 1894.)

An agent authorized to ship goods has power to bind his principal by contract limiting the liability of the carrier.

Appeal from circuit court, Putnam county.

Action by Henry A. Root against the New York & New England Railroad Company to recover damages for the loss of a horse which fell out of defendant's car while in transit and was killed. From a judgment entered upon a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals. Reversed.

Argued before PRATT and CULLEN, JJ.

Walter C. Anthony, for appellant.

Frederic S. Barnum, for respondent.

CULLEN, J. This is an action to recover the value of a horse shipped for transportation by the defendant, and fatally injured, it is claimed, through defendant's negligence. The defendant put in evidence a printed form of contract, signed, not by the plaintiff, but by one Cornue, the shipper, by which it was contended that the defendant was released from liability except for gross negligence, and that the amount of recovery for the value of the horse was limited to $100. We think that the motion for a nonsuit was properly denied. The evidence was sufficient to justify the submission of defendant's negligence, and the plaintiff's freedom from fault, to the jury; and there was also sufficient evidence as to the circumstances attending the execution of a contract to submit to the jury the question whether it bound the plaintiff. But the court also submitted to the jury the authority of Cornue to bind the plaintiff by his contract of shipment, and refused to charge that he possessed such authority. This was erroneous. An agent to ship has power to contract as to the terms and conditions of shipment. Shelton v. Despatch, etc., Co., 59 N. Y. 258; Nelson v. Railroad Co., 48 N. Y. 498. For this error the judgment must be reversed.

Judgment and order denying new trial reversed, and new trial ordered; costs to abide the event.

RAVEN v. SMITH.

(Supreme Court, General Term, Second Department. February 12, 1894.) 1. JUDGMENT-ANNULMENT-MATTERS ARISING AFTER ENTRY.

In an action in the county court to foreclose a mechanic's lien, a judgment of the supreme court establishing plaintiff's claim was given in evidence, and judgment was rendered for plaintiff. Afterwards, the judgment of the supreme court was reversed on appeal. Held, that defendant was not entitled to have the judgment of foreclosure annulled, but his only relief was to have such judgment opened, and a new trial granted.

2. MECHANICS' LIENS-PAYMENT OF MONEY INTO COURT-JURISDICTION.

In an action in a county court to foreclose a mechanic's lien, where the money was paid to the court to discharge the lien, the jurisdiction of the county court is not thereby affected, though defendant is a nonresident of the county, as plaintiff is still obliged to show, not only a claim against defendant, but a lien on the land.

Appeal from Westchester county court.

Action by John Raven against William R. Smith to foreclose a mechanic's lien. From an order denying a motion to vacate a judg. ment which had been affirmed on appeal, (24 N. Y. Supp. 601,) defendant appeals. Affirmed.

Argued before PRATT, DYKMAN, and CULLEN, JJ.

James R. Bowen, for appellant.

Frederick W. Clark, for respondent.

CULLEN, J. The action was brought in the county court to foreclose a mechanic's lien. The defendant answered. Upon the trial the parties admitted a judgment of the supreme court between the same parties which established the plaintiff's claim for work. Judg ment was rendered for the plaintiff. The defendant appealed to this court, and the judgment was affirmed. 24 N. Y. Supp. 601. Subsequently the judgment in the action in the supreme court was reversed on appeal. 24 N. Y. Supp. 600. Thereupon the defendant moved, on the reversal of the supreme court judgment, to vacate the judgment in this action. The county court made an order vacating the judgment, and granting a new trial on terms. Subsequently, on an affidavit of the defendant's attorney that his motion was not for a new trial, but to vacate and annul the judgment, the court reheard the application, and denied it. From that order this appeal

is taken.

Upon these facts it will be seen that the only question presented by this appeal is whether the judgment of the county court was or subsequently became void or not. Upon the reversal of the judg ment in the action in this court, which judgment was the basis of plaintiff's recovery in the county court, doubtless that court should, upon some terms, open the judgment, and grant a new trial. Smith v. Frankfield, 13 Hun, 489. This relief the first order of the county court granted, but the defendant expressly repudiated it. He seeks to annul the judgment and obliterate the proceedings in that court without giving the plaintiff even an opportunity to try his case. The supreme court judgment was, in this action, a mere matter of evidence. The jurisdiction of the county court to render a judgment in no wise depended upon its previous rendition. The objection that the recovery in the first action prevented a further recovery in this action was a matter of defense which, so far as relates to the validity of the judgment here, it is wholly immaterial whether the court decided rightly or wrongly. If wrongly decided, it was but an error to be corrected on appeal. Had the defendant actually paid a recovery in the supreme court which included the claim in this action, it may be that he might have had relief by motion, despite the re