29 N.Y.S. 732 | N.Y. Sup. Ct. | 1894
The action is to recover damages for an alleged assault upon the plaintiff while a passenger in one of the defendant’s
The payment by the plaintiff of a single fare of five cents entitled him to one continuous passage from any one to any other point of the railroad operated by the defendant. Laws 1890, c. 565, § 101. The right of the plaintiff, on the payment made by him of his fare, was to take the West avenue car to the place of his destination. To accomplish the purpose of indicating such right of passage, to be observed by the several conductors of the cars upon which continuous passage should be desired by the passengers, the company adopted regulations to the effect that a transfer ticket should be given to them by the conductor of the car upon which the passage was taken, and that the transfer ticket should be so punched as to indicate that the passenger has 10 minutes’ time at the place of connection within which to take the other car for which the transfer is given, and to be further punched to indicate the connecting line on which the passenger desires to proceed. Such a ticket had been provided, and was in use at the time in question. The conductor gave the plaintiff a transfer ticket which purported to be good until 5:40 p. m. It was more than an hour after that time when he boarded the West avenue car; and because the time for its use appeared, by the ticket, to have expired, the conductor of the latter car refused to permit him to ride without payment of his-fare. There is some conflict in the evidence as to the time the plaintiff got onto the Exchange street car, but the jury were permitted to find that it was then 6:40 p. m.; and, as the passage of the car to the Four Comers occupied only two" minutes, it must be assumed that the difficulty arose from the mistake of the conductor in attempting to indicate by his punch mark the time within which the plaintiff could continue his passage on the West avenue car. The conductor thus made it appear that the plaintiff was not entitled to do it upon such transfer slip; and, in the observance of his instructions, it was the duty of the conductor to whom it was offered to refuse to accept it, and to require the plaintiff to pay his fare. The question is whether or not the plaintiff is entitled to the relief which he seeks by this action. While it is conceded he may have his remedy for breach of the contract, it is urged on the part of the defendant that he has no right of action for the cause alleged, because the defendant had provided suitable regulations for the management of the business of conveying passengers, and the transfer of them from one to another line of its road, so as to give to them
It appears that the system adopted by the defendant for the practical operation of its road is such as to give the requisite frequency to the running of its cars, on all parts of its lines, for the supply to its patrons of continuous passage for single fares, by the observance and execution of the regulations in question; and, in view of the facts as they appear by the record, the conclusion is required that such regulations of the defendant are reasonable. The failure of the plaintiff to obtain the continuous passage to which he was entitled on the payment of his fare did not arise from any defect in those regulations, but solely from the mistake of the conductor in the execution of them. The question is therefore presented whether the defendant is liable in tort for the act of the conductor of the West avenue car, who was justified by such regulations in refusing to permit the plaintiff to ride in the car without payment of his fare. This question has seemingly been one of diverse
The court erred in the refusal to charge, as requested, that the jury could give the plaintiff compensatory damages only, and that, in no view of the evidence, could they award to him punitive damages. This is also a question about which the judicial writers of several of the states disagree with those of others of them. The rule adopted by the courts of this state is such as not to permit the-recovery of exemplary damages against the master for the act or negligence of his servant, unless he has authorized his misconduct, or ratified it, or unless the conduct complained of is that of the servant while he is in the service after his unfitness for it is known to the master. Cleghorn v. Railroad Co., 56 N. Y. 44; Hendricks v. Railroad Co., 44 N. Y. Super. Ct. 8; Murphy v. Railroad Co., 48 N. Y. Super. Ct. 96; Fisher v. Railway Co., 34 Hun, 433; Donivan v. Railway Co. (Com. Pl. N. Y.) 21 N. Y. Supp. 457. And the like' rule is applicable in an action against the master for the act of the servant, where the latter would not be chargeable with punitory damages if he were the party defendant. Hamilton v. Railroad Co., 53 N. Y. 25; Townsend v. Railroad Co., 56 N. Y. 295. It cannot well be claimed that the conductor who sought to eject the plaintiff from the car would be chargeable with punitive damages. He did; what appeared to him to. be his duty, and therefore it may be assumed that he acted in good faith in the matter, and not wantonly. The two cases last above cited are quite applicable to this question in the present case. The judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur.