Shea v. The Sixth Avenue Railroad Company.

MILLER, J. The plaintiff's complaint alleges that one of the cars of the defendant was standing at the corner of Barclay and Church streets in New York city, in such a position as to block up the passage across Church street. That the plaintiff, being desirous of crossing said street, stepped upon the front platform of said car, for the purpose of passing over the same. That thereupon the driver of said car, who was the servant and agent and then in the employment of the defendant, forcibly, willfully, and violently seized the plaintiff, threw her from the said car upon the highway, in consequence of which the leg of the plaintiff was broken, and the plaintiff was otherwise severely bruised and injured.

The averments in the complaint show that the defendant's car blocked up the street, so as to prevent the crossing of the same by foot passengers who might have occasion to pass over. The right of every individual to a free and unrestricted use of a public highway or a street, for the purpose of passing and repassing, is well settled. When such a right is obstructed or infringed upon, I think that it is equally clear that a person who desires to pass across the street would have the right either to remove the obstruction, or if necessary to pass over the same.

While there are occasions when it is indispensable for the cars on street railroads to stop at localities on their route, and sometimes necessarily obstruct a free passage across the street, there is no good reason why a person who desires to cross should wait unreasonably long for the cars to pass, or be compelled at some inconvenience to seek another place for that purpose. Such person has an undoubted right to cross over the platform of the car while thus interfering with his passage for the purpose of getting beyond it, and he is not a trespasser or wrong-doer in so doing. To render such an act a trespass would, I think, be in direct conflict with the principle that public highways and streets are open to all who choose or may desire to use them, and for the benefit of the entire community. The fact that street railroads have rules and regulations, preventing persons from being on the platform, does not, I think, interfere with the right to pass over the same. These rules are intended mainly for the passengers who travel in the cars, and have no application to those who merely use them as a means of avoiding the obstructions which they create to the public, when stopping at places on public streets and thoroughfares. If such a right to pass did not exist, it would rest with these companies to determine in their own discretion, when, where, and for what length of time they shall interfere with the travel of the public, and in fact the entire extent of the obstruction which they are at liberty to interpose in this manner.

The plaintiff, then, was lawfully on the car, when the driver seized VOL. XX.-61

Shea v. The Sixth Avenue Railroad Company.

and threw her from the same, and the question arises whether the act of the driver was one for which the defendant was responsible. It is insisted by the defendant's counsel, that as the defendant gave the driver no express authority to do the act, no authority to do an unlawful act will be presumed, and to sustain this position, reliance is placed upon the case of Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122; S. C., 7 Am. Rep. 418. In the case cited, it appeared that the plaintiff was a passenger in the defendant's car, and desiring to alight passed out upon the platform, and requested the conductor to stop the car, to which he replied that "the car was stopped enough," she answered that "she would not get out until the car had come to a full stop," whereupon he took her by the shoulder with both hands and threw her out, and her leg was broken, by falling upon the pavement. It was held that the act was a wanton and willful trespass, not in the performance of any duty to, or of any act authorized by the defendant, and that the defendant was not liable. It is laid down, in the case cited, that if an act is done by a servant in the business of the master, and within the scope of his employment, the master is liable to third persons for abuse of the authority conferred, and injuries resulting from an error of judgment or mistake of facts by the servant, as well as those resulting from a negligent or reckless performance of his duties. It is said in the opinion of the court, that "an act was done by the conductor completely out of the scope of his authority, which there can be no possible ground, warranted by the evidence, for supposing the defendant authorized, and which it never could be right under any circumstances for the defendant to do." Several grounds are stated, showing that the act was not done by the conductor while engaged in the performance of any duty to the defendant, or of any act authorized by it, but that it was a criminal act, a wanton and willful trespass, and not the natural or necessary consequence of any thing which the defendant had ordered to be done.

The case at bar is not analogous to the case cited, and the rule there laid down has no application here. The demurrer admits all the facts alleged in the complaint, and concedes that the defendant's driver was acting as "the servant and agent, and in the employment of the defendant," when the act complained of was done. It may also be assumed, from his position, that the driver had instructions to keep the platform of the car clear from all passengers, as well as all other intruders, who might be there without right and contrary to the regulations of the company. This no doubt was his regular duty, and it was necessarily in trusted to his judgment to decide whether a person was on the platform in violation of the rules of the company, and he was authorized to remove

Shufflin v. The People.

such person. If, without comprehending the precise nature of the legal rights of the defendant, or that the obstruction of the street by the stopping of the cars conferred any privilege upon persons who desired to cross, and supposing and believing that the plaintiff had no such right, and was a trespasser unlawfully there, the driver did the act complained of, it was an error of judgment, a mistake committed in the course of his employment, for the consequences of which the defendant is liable. If it was an abuse of authority conferred which induced him to seize and eject the plaintiff, the same rule is applicable. Isaacs v. Third Ave. R. R. Co., supra; Higgins v. Watervliet Turnpike Co., 46 N. Y. 23, 29; S. C., 7 Am. Rep. 293; Jackson v. Second Ave. R. R. Co., 47 N. Y. 274; S. C., 7 Am. Rep. 448; Meyer v. Second Ave. R. R. Co., 8 Bosw. 305.

The averment in the complaint, that the driver "forcibly, willfully, and violently, seized the plaintiff, and threw her from the said car," cannot, I think, be considered as charging that the act was malicious, but is merely an allegation that he acted knowingly and recklessly, in the performance of his duty, using more force and violence than was necessary to accomplish his purpose, for which as we have seen, within the cases cited, the defendant would be answerable.

The order and judgment of the General Term was right, and must be affirmed with costs.

All concur; except FOLGER, J., dissenting.

Judgment affirmed.

SHUFFLIN, plaintiff in error, v. THE PEOPLE.

(62 N. Y. 229.)

Murder-provocation — adultery of wife.

Where a husband, finding his wife in the act of adultery, strikes her with intent to kill, this is murder; to reduce the offense to the grade of manslaughter the blow must have been given in the heat of passion and without intent to inflict death.

NDICTMENT for murder.

INI

At the trial the testimony on the part

of the prosecution tended to prove that on the 15th of January, 1873, the prisoner's wife was found in a tenement house lying dead on the floor near the stove, nearly naked, covered with bruises and with her scalp torn off.

The plaintiff in error and his mother testified, in substance, that he

Shufflin v. The People.

came into the house and went to the bedroom, where his wife was; that as he reached the door a man ran out; that he found his wife on the bed with nothing on; that she was grossly intoxicated; that he dragged her put into the sitting room and laid her down by the stove; that the only violence he offered her was to slap her in the face with his open hand; that she got up and fell upon the stove twice, cutting herself, and bled profusely; that she got up and went out into the yard naked, and about an hour after he went out and found her lying on the snow; that he brought her in and laid her down by the stove, and she did not stir afterward; that he went to bed and slept all night, and in the morning when he awoke he found her dead. Further facts appear in the opinion.

The court charged in substance, among other things, that to establish murder in the first degree there must have been, at the time of the killing, a premeditated design on the part of the slayer to effect the death of the person killed; that such design, however, might have been formed at the very moment the blows were dealt which accomplished the death; that the difference between murder and manslaughter was that in the former there must be an intent to kill, in manslaughter such an intent was not necessary; that the courts look leniently upon a man who slays his wife when caught in the act of adultery, from the excitement consequent upon the discovery and a momentary deprivation of control on his part; that is what is covered by the heat of passion when there is no intention to kill. He then submitted to the jury the question whether the prisoner committed the act complained of under such cir

cumstances.

The counsel for the prisoner requested the court to charge: "That if the jury believed that the prisoner detected the deceased committing adultery, and thereupon instantly struck her, and from the effect of such blow she died, the killing can only be manslaughter." Also, "that the law regards adultery as so great a provocation, and makes such allowance for the passion which its discovery excites, that it absolutely reduces the grade of the offense of killing to manslaughter, and that in the lowest. degree.

The court refused, except as already charged. The prisoner's counsel duly excepted.

Charles W. Brooke, for plaintiff in error. The intention to take life in this State constitutes the distinction between murder and manslaughter. People v. Johnson, 1 Park. Cr. 291; People v. Sheriff of Westchester, id. 659; People v. Austin, id. 154. Any killing without a design to effect death, unless it is justifiable or excusable, is manslaugh

Shufflin v. The People.

ter only. People v. Austin, 1 Park. Cr. 154. The killing by a husband of his wife or her paramour, on detecting them in the act of adultery, is such serious provocation as to reduce the offense from murder to manslaughter. Whart. on Hom. 177, 178; State v. Samuels, 3 Jones' Law, 74. If the intent to kill did not affirmatively appear, the offense would be manslaughter merely. 1 Hale's P. C. 473; 1 East's P. C., ch. 5, § 22, p. 237; People v. Hammill, 2 Park. Cr. 229; Wilson v. People, 4 id. 642. In consideration of the circumstances under which the killing was done, plaintiff in error was guilty of manslaughter only, and that in the lowest degree. Foster, 296; State v. Samuels, 3 Jones' Law, 74; 1 Hale's P. C. 486; 1 Hawk. P. C., ch. 31, § 36; Whart. on Hom. 35, 177, 178; Whart. on Cr. L., § 987. If the case comes within any degree of manslaughter it cannot be deemed murder, even if accompanied with some of the circumstances which make up that crime. People v. Johnson, 1 Park. Cr. 291; Darrey v. People, 10 N. Y. 157, 161, 162; People v. Johnson, 1 Park. Cr. 296.

Benj. K. Phelps, district attorney, for defendants in error.

RAPALLO, J. The judge, in charging the jury, instructed them ex plicitly as to the distinction between murder and manslaughter. That in murder there must be an intent to kill, and that to constitute manslaughter it was not necessary that there should be such intent. He further instructed them that the court looked leniently upon a man who slays his wife, when caught in the act of adultery, from the excitement consequent upon the discovery and a momentary deprivation of control on his part; that that was what was covered by the "heat of passion" when there was no intention to kill, as used in the statutes defining manslaughter. He then submitted to the jury to determine whether they believed the statement which the prisoner made on the subject of the difficulty with his wife, and the circumstances attending it. Whether they believed from the evidence that he caught her in the act of committing adultery, or that the circumstances surrounding the woman justified him in concluding that she was committing adultery, and whether he was under the excitement and in the heat of passion which that discovery would be likely to produce, and did the act under it. The clear purport of the charge was, that if the jury found that the prisoner killed his wife under these circumstances, and without a premeditated design to effect her death, the offense would be manslaughter in some of its degrees.

This, we think, was a correct exposition of the law, and fully covered