46 N.Y.S. 521 | N.Y. App. Div. | 1897
The plaintiff claims that in July, 1896, she was wrongfully ejected and expelled by the defendant, or its agents, from one of its street cars while she was properly riding thereon as a passenger. The recovery is upon that basis.
The defendant operates a street railroad from the village of Cortland, through Main street, to the "village of Homer, a distance-of about three miles. The plaintiff lives in the village of Cortland, and upon the day in question she, with her husband, went to Homer, and when ready to start back they got on to one of the defendant’s cars. The through fare to Cortland was ten cents. When the conductor came around to collect fares, the husband of plaintiff told him they wanted to pay the fare through to Cortland, and, if they
The tickets which the plaintiff and her husband had were transfer tickets, and upon their face, as they were punched by the first conductor, they gave to the holders the right to a passage to the: plaintiff’s- destination. She only claimed what her ticket said she-might have. The defendant, however, showed that the first com ductor, under the rules of- the company, had no right to issue such tickets for transfer from one point on one line to another point on the same line, but only to issue them for transfer to some other-point on some one of the other lines that the defendant was operating-in that vicinity, He had no right to issue them so that they would, operate as stopovers on the same line. He had them in his possession for the purpose of issue, but, not for the purpose he issued, them here. There was nothing on the face of the ticket that indicated this limitation. The ticket reads, “ good only to whom issued on next car over" the line punched, within thirty, minutes of time-canceled, subject to .the rules of the company.” There were no-rules on the subject published so that the traveling public could see- or read them, and- it may be inferred from the evidence that there.
The trial court charged the jury that the ticket issued by the first conductor bound the defendant and that the plaintiff had a right to ride thereon. This is claimed to be error. We think not.
There is no dispute as to what occurred at the time the first conductor issued the tickets. He had possession of the tickets and in issuing them was acting within'the scope of his apparent authority. The defendant was, I think, bound by his act. (Tarbell v. Northern Central R. Co., 24 Hun, 51; Miller v. King, 84 id. 308.) In Cosgrove v. Ogden (49 N. Y. 255) it is said that the test of a master’s liability for the act of his servant is whether the act was done in the prosecution of the master’s business, not whether it was done in accordance with the instructions of the master to the servant. In Hanover Bank v. Am. Dock & Trust Co. (148 N. Y. 612, 620) it is said an agent may bind his principal within the limits of the authority with which he has apparently been clothed in respect to the subject-matter.
It is claimed on the part of the appellant that the case of Townsend, v. N. Y. C. & H. R. R. R. Co. (56 N. Y. 295) is applicable here. There the passenger had no ticket to show to the second conductor, and, therefore, it was said the passenger might be lawfully put off the train although he was there without a ticket by reason of the wrongful act of a prior conductor in taking up his ticket. Here the passenger had a ticket upon which she had the light to ride. Besides, the rule suggested in the Townsend case does not seem to have been followed in that or subsequent cases. Upon the new trial there granted the plaintiff recovered, and the judgment was sustained at the General Term. (6 T. & C. 495. See, also, English v. Del. & H. C. Co., 66 N. Y. 454; MucMe v. Rochester Railway Co., 19 Hun, 32.) In Wiggins v. King (91 Hun, 340), cited by the appellant, the passenger sought to travel in an opposite direction from that indicated on the ticket. The cases cited by the counsel on the subject of a special agent do not, we think, apply here. The Muckle case is much like the present, and sustains the view of the trial court.
The exception of the defendant to the court saying in its charge on the question of damages that the jury might take into consideration the indignity of. putting the plaintiff off the car, the passengers being along, was not well taken. (Hamilton v. Third Ave. R. R. Co., 53 N. Y. 25; Sedg. on Dam. [8th ed.] § 865.)
Our attention is called to some rulings upon evidence, but we find no good ground for reversal.
All concurred.
Judgment and order affirmed, with costs.