GUSTAVE A. WEBER, Respondent,
ROCHESTER, SYRACUSE AND EASTERN RAILROAD COMPANY, Appellant.
APPEAL by the defendant, the Rochester, Syracuse and Eastern Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d day of December, 1910, upon the verdict of a jury for ninety dollars, and also from an order entered on the 3d day of January, 1911, denying the defendant's motion for a new trial made upon the minutes.
The action was commenced on the 9th day of April, 1910, to recover damages alleged to have been sustained by the plaintiff because of an assault committed upon him by a conductor of the defendant in ejecting him from one of defendant's cars upon which he was a passenger.
Ernest I. Edgcomb, for the appellant.
Henry R. Howard, for the respondent.
MCLENNAN, P. J.:
The facts are not in dispute. At all the times in question the defendant was a corporation engaged in operating a trolley railroad between Syracuse and Rochester. The local street railway system in Rochester was owned, controlled and operated by the New York State Railways. By contract between such corporations the defendant was permitted to enter the city of
Rochester from the east, running its cars over the University avenue line to its intersection with Main street, and from there on the Main street line to the Four Corners, so called, or central part of the city, and the defendant's cars in returning easterly passed over the same route to the city line.
It was stipulated upon the trial: ' First. That on the day in question there was an agreement in force between the defendant and the New York State Railways, or its predecessors, which provided, among other things, that passengers who paid fare on the defendant's cars within the city should be entitled to the transfer privileges of the city company, and that the city company's special transfers should be honored on the cars of the defendant to the Culver Road [the east line of the city], subject, however, to the transfer regulations contained on the transfers, and to the rules of the defendant company. That there was a good consideration for such agreement.
'Second. That on the day in question there was a rule of the defendant company in force forbidding a conductor to accept transfers unless properly punched as to line and hour.'
On the 23d day of December, 1909, between four and five o'clock in the afternoon, the plaintiff paid his fare on one of the West avenue cars of the local company and asked for and received from the conductor a transfer to the University avenue line and at the proper point he alighted and immediately boarded one of the defendant's cars going out University avenue. The conductor on that car refused to accept the plaintiff's transfer on the ground that no hour had been punched thereon by the conductor of the local company who delivered the transfer to him, and the conductor on defendant's car demanded payment of a cash fare, which the plaintiff refused to pay; whereupon the conductor, using no more force than was necessary, compelled plaintiff to alight and leave the car.
The transfer delivered to the plaintiff was of the regular kind issued upon the West avenue line of the local company and had printed on it the date, 'Dec. 23,' and bore the conductor's punch mark designating the University avenue line as the one to be taken. In conspicuous type ...