#### NATHANIEL HYATT, Respondent, *v.*THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY and CHARLES HOPPER, Appellants.

*Verdict*— whw'e *inconsistent findings w'e made on the same evidence.*

Appeal by defendant, The New York Central and Hudson River Railroad Company, from an order denying a motion of said defendant, made on tbe judge’s minutes, to set aside the verdict of the jury, as to said defendant, and for a new trial, and by defendant Charles Hopper, from an order granting a motion made by the plaintiff, on the judge’s minutes, to set aside the verdict as to the said defendant, Charles Hopper.

The action was brought for damages for an assault and battery, on the plaintiff, committed by the defendant Hopper, as the agent or conductor of the defendant, the railroad company, on one of the defendant’s freight trains. The plaintiff, on being requested to get off, refused to do so while the train -was in motion. He said he would if the train were stopped. Upon plaintiff refusing to get off, the defendant Hopper, the conductor of the freight train, kicked plaintiff, and he fell from the train, and was injured. The jury were permitted by the judge, in his charge, to give punitive damages, if they thought it a fitting case, but were not instructed what facts must be established, before any punitive damages could be given.

The jury found a verdict for $300 against the defendant, The New York Central and Hudson River Railroad Company, and found no verdict against the defendant Hopper. Plaintiff’s counsel moved for a new trial on the minutes, so far as the defendant Hopper was concerned.

Counsel for the defendant, the railroad company, moved to set aside the verdict against the railroad company, and also moved for a new trial as to it, for exceptions taken, and on the ground of excessive damages, and that the verdict was against the weight of, and was unsupported by the evidence.

The court granted the motion of the plaintiff for a new trial, as to the defendant Hopper, and denied the motion for a new trial as to the railroad company; and both defendants took an appeal. *307The court *held,*that if the act of Hopper was unjustified, he was guilty of an assault and battery. If it was justifiable, then the other defendant was not guilty of any act which would sustain a verdict against it. The jury having found Hopper not guilty, and having found a verdict against the other defendant for Hopper’s act, two conflicting results were found on precisely the same evidence.

On the question of punitive damages, and the right to maintain this action, the court cited *Olughan*v. *N. Y. O. and H. R. R. R. Go.*(56 N. Y., 44), but did not pass upon the questions further, than that it was erroneous to leave the question of punitive damages to the jury, to give or withhold as they saw fit.

*Frcmlc Loomis,*for appellants. *John " Gibney,*for respondent.

Opinion by

Barnard, P. J.

Present — Barnard, P. J., and Talcott, J.

Judgment and order denying new trial as to defendant, The New York Central and Hudson River Railroad Company reversed and new trial granted, costs to abide event, and order granting new trial, as to defendant Hopper affirmed, costs to abide event.