## Facts

- Grace M. Barton, age 15, rode as a passenger on a vehicle operated by Bee Line, Inc., a common carrier.
- Barton claimed the company’s chauffeur forcibly raped her during the ride; the chauffeur testified the intercourse was consensual.
- The parties stipulated that if the chauffeur assaulted Barton while she was a passenger, Bee Line would be liable in damages for breach of its common-carrier duty to protect a passenger.
- The trial court instructed the jury that Barton could recover even if she consented, though consent could mitigate damages.
- The jury returned a $3,000 verdict for Barton.
- The trial court set aside the verdict and ordered a new trial under Civil Practice Act § 549, reasoning the amount was excessive if there was consent but inadequate if there was forcible rape.
- Barton appealed from the order granting a new trial.

## Issues

1. Whether the trial court properly exercised discretion in setting aside the verdict and granting a new trial based on the verdict’s excessiveness or inadequacy.
2. Whether a 15-year-old who knowingly consented to intercourse could recover civil damages solely because intercourse with a female under 18 was criminalized as second-degree rape under Penal Law § 2010(5).

## Decision

- The Appellate Division affirmed the order granting a new trial, with costs.
- The court declined to disturb the trial court’s discretionary determination that the verdict should be set aside.
- The court held the jury charge was erroneous to the extent it instructed that Barton was entitled to recover even if she knowingly consented and understood the act.
- The court concluded that Penal Law § 2010(5) did not, by itself, supply a civil cause of action to a consenting minor.

## Legal Principles

- A trial court has broad discretion to set aside a verdict and grant a new trial when the award is against the weight of the evidence or is excessive or inadequate under the governing new-trial standard.
- A statute that imposes criminal liability for sexual intercourse with a female under a specified age, regardless of her consent, does not automatically create a private civil damages remedy in favor of a minor who knowingly and willingly consented.
- Criminal “incapacity to consent” for statutory-rape purposes may differ from the effect of consent in civil tort claims; knowing consent can bar civil recovery absent force or other independent tortious conduct.

## Conclusion

The appellate court upheld a new trial order after a $3,000 verdict in favor of a 15-year-old passenger alleging rape by a carrier’s chauffeur, and it rejected the view that statutory rape law alone entitled a knowingly consenting minor to civil damages.


Barton v. Bee Line, Inc., 238 A.D. 501, 265 N.Y.S. 284 (App. Div. 2d Dep’t 1933)