Summary
In Coorman v. Brooklyn Heights R.R. Co. (127 A.D. 315), which, incidentally, is indistinguishable, in legal principle, from the instant case, the action, brought in the Municipal Court, established an assault by a conductor with accompanying insult and striking about the face and head. It is interesting to note the exculpation attempted by the defendant in that case, which was that the conductor said "that he had an idea that the plaintiff was going to strike him" — a mistaken assumption, as obviously was the assumption of the servant in the case now before the court.
Summary of this case from Barad v. New York Rapid Transit Corp.Opinion
June 29, 1908.
Francis R. Stoddard, Jr., for the appellant.
David Hirshfield, for the respondent.
The plaintiff brings this action in the Municipal Court for breach of contract of carriage by the defendant, a common carrier, under the authority of Busch v. Interborough R.T. Co. ( 187 N.Y. 388) and Gillespie v. Brooklyn Heights R.R. Co. (178 id. 347), and established by the evidence that he became a passenger upon one of the defendant's cars, paid his fare and demanded a transfer; that the conductor told him to wait a minute, whereupon he took up his paper and read while the car was traveling several blocks, picking up passengers the while; that when the conductor came around collecting fares of the new passengers he again asked for a transfer, when the conductor called him a "sheeny," asked why he did not ask for the transfer when he paid his fare, and on being told that he did ask for it, the conductor struck him across the face and nose, causing plaintiff's nose to bleed, resulting in nervous prostration, headaches, etc. There is practically no dispute about the facts, the conductor merely attempting to justify his action by saying that he had an idea the plaintiff was going to strike him. With this state of facts before the court the damages were assessed at $500, the defendant appealing from the judgment.
While it is true that the physical injuries sustained by the plaintiff are comparatively trivial, we are not disposed to hold, as urged by the defendant, that the verdict is excessive. The plaintiff was holding an important position with the Singer Sewing Machine Company, was apparently a peaceable, law-abiding citizen, merely asking for his rights under the rules of the company and the statutes of this State, and the defendant had no right to permit him to be assaulted, insulted and humiliated by its own employees. It is difficult to estimate the damages sustained by one through humiliation, but it may be safely said that few business men, taking the facts into consideration, would say that $500 was adequate compensation for being struck in the face by an employee of the company, and otherwise insulted, threatened and abused. The plaintiff's nose was made to bleed; he was upon the car in the presence of other passengers; he had to leave the car in the damaged condition in which defendant's servant left him, and we are of the opinion that the evidence amply sustains the judgment.
We have examined the errors alleged to have been made by the trial court in the trial of this action without being persuaded that there is anything justifying reversal of this judgment. The motion to strike out the testimony to the effect that the conductor imitated the voice of the plaintiff in addressing him was made upon the ground that it was immaterial, irrelevant and incompetent, but upon the appeal counsel urges that the answer was not responsive to the question, and that it gave the conclusion of the witness. Where the objection is urged on specific grounds upon the trial it is not for this court to consider other grounds upon appeal, and we are of opinion, assuming that the answer might properly have been stricken out on the grounds now urged, that the defendant waived these grounds by stating other grounds for the motion.
The judgment appealed from should be affirmed, with costs.
JENKS, HOOKER, GAYNOR and RICH, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.