Opinion
March 26, 1924.
Florence Farrington, for the appellant.
Olin T. Nye [ Frederic R. Twelvetrees of counsel], for the respondent.
The plaintiff seeks to recover damages against the defendant, which operates a street railway, for an assault upon him committed by a motorman in defendant's employ. Liability is dependent upon the relation of carrier and passenger existing between the defendant and plaintiff at the time of the assault. ( Stewart v. Brooklyn Crosstown R.R. Co., 90 N.Y. 588.)
Although it is true that the plaintiff in testifying gave different versions of the details of the transaction, it remained a question for the jury to determine which version was correct. ( Ochs v. Woods, 221 N.Y. 335.)
There is evidence in the plaintiff's testimony that the plaintiff, while standing on the street near the front platform of a car of defendant's, called the attention of the motorman, who was on board the car, to a hot journal, and although the motorman replied in an insulting manner the plaintiff took the remark as having been intended jokingly, and when the motorman opened the door leading to the front platform of the car, the plaintiff, with the intention of boarding as a passenger, started to get on the car and in so doing put his foot upon the first step when the motorman kicked him in the face. The evidence was sufficient to require a submission to the jury of the question whether the plaintiff was a passenger at the time of the assault. ( Garricott v. N.Y. State Railways, 223 N.Y. 9.)
The judgment should be reversed and a new trial ordered, with costs to appellant to abide the event.
All concur.
Judgment and order reversed on the law and new trial granted, with costs to appellant to abide event.