Bush v. Christopher & Tenth Street Railroad 16 N.Y.S. 212

Newburgher, J.

This is an appeal from a judgment entered upon a verdict directed by the court. This action was brought to recover damages for an alleged assault committed upon plaintiff, by a driver of one of defendant’s cars, while plaintiff was on said car as a passenger. On the trial it appeared that the plaintiff boarded one of defendant’s ears at Sixth avenue and Fourteenth street, paid his fare, and rode to the corner of FTinth avenue and Fourteenth street. He then got off, receiving from defendant’s agent a transfer ticket for the ear that was to take passengers to the ferry. He boarded one of their cars, and deposited his ticket in the box, there being no conductor on said car. The driver then told plaintiff that he must, pay his fare or get off, as the ticket he deposited in the box was not the right one. Plaintiff refused to leave, and, as he claims, was assaulted by the driver while being removed. Defendant’s driver admits removing the plaintiff from the car, but denies that any assault was committed, or that any force was used. At the close of the evidence defendant moved that the jury be directed to find a verdict for the defendant, which motion was granted, and to which plaintiff excepted. We think the trial justice erred. The evidence as to the right of plaintiff to ride on the car, as well as the alleged assault on the plaintiff, was of a contradictory character; and, whatever might have been the opinion of the court as to the value of the testimony "offered, plaintiff had the right to have the same submitted to the consideration of the jury. McCann v. Railroad Co., (N. Y. App.) 23 N. E. Rep. 164. The judgment should be reversed, and a new trial granted, with costs to abide event.