#### Albert Miller, an Infant, by Aaron Miller, His Guardian ad Litem, Respondent, *v.*The Brooklyn Heights Railroad Company, Appellant.

Second Department,

February 28, 1908.

Railroad — assault by employees — breach of contract to carry safely — when passenger does not lose status by alighting — wish to transfer immaterial.

A passenger on a surface car who while standing on the front platform/has been promised a transfer at a certain point if the inspector authorizes it to he issued, does not lose his status as a passenger by alighting at that, point and walking to the rear platform to demand the transfer of the conductor course made necessary by the crowded condition of the car within. Such act of alighting does not relieve, the railroad from, liability for assault by its employees inflicted when the passenger demanded the transfer on the rear platform.

Under the circumstances the railroad is not relieved from liability for damages for a breach of its contract to • carry safely without insult or assault, because it was not alleged or proved that the defendant operated the car to which the plaintiff desired to transfer, for irrespective of the fact that the plaintiff desired a transfer at that point, he was entitled to he carried to the end of the defendant’s line if he. saw fit to remain on the car, and the defendant was an absolute guarantor Of his safety against unjustified assault by its employees ■while the contract of carriage was in force.

Appeal by the defendant, The Brooklyn Heights Railroad Company, from a judgment of the Municipal Court of the city of New York, borough of Brooklyn, in favor of the plaintiff, rendered oil the 25tli day of November, 1907.

*F. R. Stoddard, Jr.,*for the appellant.

■ *Jouis B. Brodshy,*for the respondent.

Rich, J.:

This is an action brought to recover damages for the breach of an alleged contract to carry the plaintiff over its line safely and without insult or assault by- its employees. On June 16, 1907, the plaintiff with six companions boarded one of defendant’s cars, operated through Lorimer street in the borough of Brooklyn, intending to remain thereon until the car .reached Broadway and there *538transfer to a line operated through that street to their destination. The car was crowded, and plaintiff and his companions stood on the front platform. When the conductor reached them, one of the party, Gerhardt, paid him seven fares for the persons in his party, including plaintiff, and demanded transfers. From the plaintiff’s testimony it is inferable that there seems to have been some doubt in the mind of the conductor as to whether it was his duty to give ■ the transfers; he said that when the car reached Broadway he would see an inspector and if the inspector told him to give the transfers lie would do so. When the car reached that point and. stopped, plaintiff alighted from the front .platform, passed to the rear of the car, stepped upon the rear platform where the conductor was standing and demanded a transfer. At-that time a stranger was engaged in an altercation with the conductor regarding a transfer and was holding the bell cord.. As the plaintiff made his demand the conductor began to strike the persons within his reach, and among others struck the plaintiff in the face, and the motorman of the car struck plaintiff on the head with the controller. The appellant contends that by alighting from the car the plaintiff ■ ceased to be its passenger, the contract of carriage was terminated and for the assault thereafter committed by its employees it is not liable.

The: evidence, was sufficient to warrant the jury in finding that tlie . attempt made by the plaintiff to procure a transfer when the car stopped at the corner of Broadway, was pursuant to the promise1 of the conductor that when the car reached that point he would see ah inspector and if told by him to give the transfers he would do so. By stepping off the front platform of the car for the purpose of going to the place in the car where the conductor was standing, the plaintiff did not lose his status as a passenger. The car being crowded, he was.not bound to force his way inside the car to reach the rear platform, but had the right to step off the car for that pur- , pose and in so doing lost none of his rights as a passenger. *(Parsons*v. *N. Y. C. & H. R. R. R. Co.,*113 N. Y. 355, *362; Zeccardi v. Yonkers Railroad Go.,*190 id. 389.) It is further contended that because of the absence of any allegation, m the complaint, or evidence upon the trial, that the defendant operated the Broadway car to which plaintiff desired to transfer, it had fully performed *539its contract .of carriage when it had conveyed the plaintiff to the point on its line where he would have to leave the car on which he was riding to take the Broadway car; that in his boarding the car after he had alighted therefrom he was a trespasser. The plaintiff became a passenger of the defendant when his fare was paid, and was entitled to be carried to the end of its line, or so far in that direction as he saw fit to remain on the car, and the defendant became and was an absolute guarantor of his safety against the unjustifiable assault of its employees while such contract of carriage was in force. This contract, and the consequent duties of the defendant to the plaintiff under it, had not terminated when the car reached the corner of Broadway. If at that point the conductor had refused to give the transfer, it was yet the right of the plaintiff to remain upon the car and continue his ride to the termination of the road. The assault being committed while the contract of carriage was in force, the defendant was liable therefor *(Stewart*v. *Brooklyn & Crosstown R. R. Co.,*90 N. Y. *588; Zeccardi*v. *Yonkers Railroad Co., supra),*and the judgment must be affirmed, with costs.

Jenks, Hooker, G-aynor and Miller, JJ., concurred..

Judgment of the Municipal Court affirmed, with costs.