265 N.Y.S. 284 (1933)
The passenger filed an action against a chauffeur claiming that she was raped while a passenger. The chauffeur testified that the passenger had consented to the sexual relations. The jury was instructed that if the passenger was assaulted while a passenger, she was entitled to recover because the chauffeur would have been liable in damages for failure to perform its duty as a common carrier. A verdict was returned in the passenger's favor and subsequently set aside by the trial court and a new trial ordered.
- Upon review of the decision, the court held that it was error for the trial court to have instructed the jury that the passenger was entitled to a verdict even if she consented to consort with the chauffeur.
- The court held that a person who perpetrated an act of sexual intercourse with a female, not his wife, under the age of 18 years, under circumstances not amounting to rape in the first degree, would be guilty of rape in the second degree.
- However, a female under 18 years had no cause of action against a male with whom she willingly consorted if she knew the nature and quality of her act.
- The court held that the order should be affirmed.
The court affirmed the decision of the trial court setting aside a verdict for the passenger who alleged she was raped while in the car of the chauffeur and ordering a new trial.
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