#### Charles Wachser, Plaintiff-Appellant, *v.*Interborough Rapid Transit Company, Defendant-Respondent.

(Supreme Court, Appellate Term,

November, 1910.)

Carriers-r-Carriage of passengers — Liability for personal injuries to passengers — Protection of passenger from acts of fellow passengers and of third persons — Duty to protect passenger against tort of fellow passengers.

A common carrier is bound to protect its passengers against the unprovoked violence of fellow passengers, and they may rely upon such protection; and the carrier is not excused from liability on account of the failure of passengers to fly from threatened violence, or their persistence in remaining in their proper places and continuing their journey.

Appeal by the plaintiff from a judgment of the Municipal Court of the city of Mew York, borough of Manhattan, second district, entered in favor of the defendant after a trial by the court without a jury.

Henry Lieb, for appellant.

Tames L. Quackenbush (Anthony J. Ernest, of counsel), for respondent.

Page, J.

This action was brought by .a passenger on the ' defendant’s railroad to recover damages for breach of the contract of carriage. The plaintiff, having paid his fare, boarded defendant’s train at Eighty-fourth street and seated himself in one of the “ cross seats ” in the middle of the ear. Seated opposite to him was a large, powerful man in an intoxicated condition. This man resented, apparently, plaintiff’s looking at him and inquired what he was looking at; to which plaintiff making no reply, he applied to plaintiff grossly vile and insulting epithets, in so loud a tone as to be heard and attract the attention of a passenger standing on the platform of the car. Plaintiff then appealed to the conductor, who was standing inside the car, near the door, and *347asked him to stop the drunken man; hut the conductor only laughed at him. He returned to his seat, and the drunken man -made more insulting remarks and kicked him on the leg. He again appealed to the conductor to interfere and “ stop it.” The conductor paid no attention, but turned his head away. The plaintiff again returned to his seat and was violently assaulted by the drunken man, knocked down, his chin cut and eye blackened. The passenger first appealed to the conductor at about Sixty-sixth street. The final assault was between Forty-second and Thirty-fourth streets. At the Thirty-fourth street station the whistle of the train was blown to call a policeman, and the drunken man made his escape. During all of this time none of the employees of the defendant interfered in any way to protect the passenger or to maintain order in the oar.

The defendant resting without calling any witnesses, the learned justice gave judgment for the defendant, on the ground that it was “ the duty of the passenger to use reasonable care and sense and not to voluntarily place himself unnecessarily in a position of expected danger.” The learned justice does not seem to have sufficiently considered, and the defendant seems to be ignorant of, the obligation that rests upon a common carrier of passengers to protect the passenger from annoyance or injury from drunken or violent passengers. The rule is clearly stated by Judge Allen: “A railroad company has the power of refusing to receive as a passenger, or to expel any one who is drunk, disorderly or riotous, or who so demeans himself as to endanger the safety or interfere with the reasonable comfort and convenience of the other passengers, and may assert all necessary power and means to eject from the cars any one so imperiling the safety, or annoying others; and this police power the conductor, or other servant of the company in charge of the car or train, is bound to exercise with all the means he can command whenever occasion requires. If this .duty is neglected without good cause, and a passenger receives injury, which might have been reasonably anticipated or naturally expected, from one who is improperly received, or permitted to continue as a passenger, the carrier is responsible.” Put*348nam v. Broadway & Seventh Ave. R. R. Co., 55 N. Y. 108, 113. See also Koch v. Brooklyn Heights R. R. Co., 75 App. Div. 282; McMahon v. Interborough R. Co. 59 Misc. Rep. *242.*

When the plaintiff was annoyed by the drunken passenger, and the conductor’s attention was called to it, it was his duty to protect the passenger from further annoyance, either by compelling the drunken man to desist and demean himself in an orderly manner, or to eject him. But the conductor only laughed. Again, when the passenger called his attention to the assault committed upon him, it was the duty of the conductor, being thus apprised that there was danger of personal injury to- another passenger from the presence of the drunken man, to have immediately ejected him from the train; and for this'failure on the part of the conductor to discharge his plain duty the company should be held responsible for any injury suffered by passengers from this drunken passenger. But, says the learned justice, the passenger voluntarily returned and placed himself in a position of expected danger. Was it a danger that reasonably might be apprehended? Then the duty was on the defendant to guard the passenger, and he had the right to expect that the conductor would protect him from it, and, if necessary, that every employee of the defendant on that train should be summoned for his protection. I cannot assent to the doctrine that decent, law-abiding passengers are compelled to flee from the drunken and disorderly, or be deemed guilty of contributory negligence. The only case cited by defendant’s counsel in support of its contention (Magar v. Hammond, 171 N. Y. 383) was an action brought by a poacher to recover damages for injuries sustained, while he was trespasing, from a rifle fired by the watchman. It was shown that, in addition to the usual signs prohibiting trespassing, the poacher had notice that the watchman was armed and was accustomed to discharge the gun to frighten trespassers. The court held that the jury should have been instructed that, if the plaintiff voluntarily exposed himself to a known danger, he could not recover. This case cannot be extended to limit the liability of a common carrier, or no passenger could re*349cover for injuries ordinarily incident to the dangers of travel on railroads.

The judgment should he reversed and a new trial ordered, with costs to appellant to abide the event.

Seabury and Bijur, JJ., concur.

Judgment reversed and new trial ordered.