#### Samuel Morris, Resp’t, *v.*The Atlantic Avenue Railroad Co, Appl’t.

*(City Court of Brooklyn, General Term,*

*Filed December 27,*1886.)

Evidence — What admissible in action eor assault.

Where plaintiff sued for damages for being put off from one of defendant’s street cars, because be refused to pay an extra fare for a bundle. *Held,*that testimony tending to show the number and location of the passengers in the car from the time plaintiff entered until he was put off was admissible.

Appeal from- a judgment entered upon a verdict in favor of plaintiff at the trial term and from an order denying a motion for a new trial made on the judge’s minutes.

This is an action for an assault and battery committed by the defendant’s servants upon the plaintiff. On the second day of March, 1886, the plaintiff became a passenger on one of the defendant’s cars on Adams street.

*875The conductor of the car stood at the rear door when the plaintiff entered the car and said nothing to him. The plaintiff carried a bundle of picture frames, 24 inches long, 17 inches wide and about 2 or 3 inches thick, went into the car and took a seat with the bundle on his lap. The conductor collected the regular fare from the plaintiff and said nothing about the bundle, but returned to his place at the rear of the car. After going about one block and a half further the conductor returned to the rear platform and afterwards again went to the plaintiff and said: “You have to go outside on the platform. The conductor then returned to the rear platform and afterwards again went to the plaintiff and said: You must go out.” The plaintiff said he had paid his fare and had not much of a bundle and did not believe it was right to put him out. The conductor consulted with, the driver, and then said, he would kick plaintiff out. Then followed some excitement. The conductor returned again to the rear plat form and carried the plaintiff quietly to within two blocks of his home. While the plaintiff was sitting quietly in the car the driver and conductor grabbed him first by the hand, breaking the thumb and then by the coat and put him out of the car, and threw the bundle after him. The defendant claimed to have a notice in the car, that five or ten cents would be charged “ for each valise, basket or package too large to be carried on the lap of the passenger without incommoding others,” but there was no demand made for pay from the plaintiff for the bundle. Though there, was some testimony that the conductor demanded pay for thebundle, both the conductor and driver had previously testified before the police commissioner that the plaintiff was put off because he would not go on the front platform and said not a word about a demand or refusal to pay for the package. The conductor so told the policeman. The conductor testified that on the trial of the policeman he swore to the demand for the pay for the bundle. The plaintiff’s thumb was put out of joint in two places, he suffered great pain and could not sleep for four weeks.

Backus, Manne; for resp’t. *B. F.*Tracy, for appl’t.

Clement, J.

We are of opinion that it was not error to admit testimony tending to show the number and location of the-passengers in the car from the time plaintiff entered until he was put off.

The conductor saw the plaintiff enter the car with the bundles, and after he had taken a seat, received his fare.

If the bundles were too large to be carried without an extra charge, — the conductor may or may not have known that fact when he collected the fare, and whether his attention was so called was material on the main issue. And if the car had been ■ crowded with passengers, the counsel, for defendant could well *876argue to tbe jury tbat tbe conductor did not notice tbe size of the bundles until after tbe fare was paid.

If tbe conductor knew tbeir size when tbe plaintiff entered tbe car and when be collected tbe fare, it certainly was some evidence tending to show that tbe bundles were not large- enough to incommode tbe passengers.

We think further that the testimony was admissible in any aspect of tbe case. In an action for an assault, it is proper to show tbe presence of third parties and their location at tbe time of and immediately preceding tbe assault.

Tbe learned counsel for the defendant asked a question clearly proper which brought out the fact as to tbe number of passengers in tbe car. It would have been proper for tbe defense, if passengers bad been actually incommoded, to show such fact as a part of tbe transaction; and the plaintiff bad tbe right to prove all tbat took place in tbe car from tbe time he entered until be was put upon tbe street by tbe conductor.

Tbe testimony of the conductor taken before the police com-; missioner was also clearly admissible. On his direct examination be said “ I told him again, you will have to pay for them; ” and again on cross examination be made tbe same statement. The witness further testified, “ I swore before the police commissioner when I was making this statement of what happened, I told him unless he paid for tbat package he must get off.”

Tbe foundation bad therefore been laid for tbe questions asked.

Tbe witness also testified as to tbe size of tbe bundles on bis direct examination and on tbe cross examination bad been asked as to bis testimony before tbe commissioner on the same point. Tbe exceptions were not therefore well taken.

Tbe objection at folio 195 was properly overruled, as will be seen by reading the direct and cross examination of Weitler, the driver.

Tbe testimony by which tbe conductor and driver were sought to be contradicted, was not on a collateral issue, because each bad testified to the contrary on tbeir direct examination.

Tbe conductor and driver made a statement of what bad happened at the time of tbe assault, on tbe bearing before tbe commissioner, and if it differed from that which they gave on tbeir direct examination in chief, tbe plaintiff bad a right to prove that fact by laying tbe proper foundation and then proving the different statement.

It is claimed that tbe verdict should be set aside as excessive.

Tbe plaintiff, according to the verdict of a jury, was wrongfully and without cause put off tbe car.

While tbe plaintiff could not recover exemplary damages, yet be was entitled to be compensated for all injuries sustained, including the insult and humiliation, and we cannot say as *877matter of law that tbe verdict was, tm der all tbe circumstances, excessive.

Judgment and order denying new trial, affirmed with costs.

REYNOLDS J., concurs.