
    THOMAS McKERNAN, Appellant, v. THE MANHATTAN RAILWAY COMPANY, Respondent.
    
      Intending passengers, and carriers, respective rights of as to use of stations—Passion or wilfulness of agents, responsibility of carriers for acts done in—Ticket seller, scope of his employment in reference to removing persons from station—Evidence, sufficiency of to carry a case to the jury—Responsibility of carrier for agent's acts.
    
    The plaintiff, intending to become a passenger on defendant’s cars, went to one of its stations, offered the ticket seller his fare and asked for a ticket, the ticket seller refused to sell him a ticket alleging that he was drunk, which however was not the fact. He turned back to go out of the station, when the ticket seller walked after him saying, “you get down stairs.” After he got down several steps the ticket seller, using profane language, pushed him so forcibly that he fell over the railing upon the pavement below and was badly hurt. Behind this ticket seller at this time was another man. Both the ticket seller and this man were in uniform dress, the same as defendant’s employees wear. This other man said and did nothing; he did not interfere.
    
      Held, 1. That an intending passenger upon failing to buy a ticket is still lawfully on the station, with the duty of leaving it with ordinary promptness and not loitering there.
    2. That a passenger carrier has the right upon refusal of such intending passenger to leave the station after being requested so to do, by its agents, to use such force, not illegal in its kind, as might be necessary to enforce compliance with the request.
    S. That the carrier is -responsible for the acts of its agents employed to enforce such right which were in fact done towards enforcing it, and for the particular manner in which they are done, although he selected the manner for purposes of his own in passion or wilfullness.
    4. That in the ease at bar it was within the scope of the ticket seller’s employment to require a person to whom he had refused a ticket to move away and compel him to move, if that were necessary, and to provide in a proper way that he should not immediately return and make reiterated demands for a ticket.
    5. That the evidence in the case at bar, (above referred to) was sufficient to carry it to the jury on the questions (1) whether or not the ticket seller when he did the acts resulting in the injury complained of was attempting to force the plaintiff to leave the station; (2) whether or not the ticket seller in such attempt was acting within an employment by the defendant.
    Before Sedgwick, Ch. J., and Ingraham, J.
    
      Decided March 14, 1887.
    Appeal by plaintiff from judgment of dismissal of complaint, entered upon direction made before a jury.
    The action was for damages from act of defendant’s servant as alleged.
    The facts sufficiently appear in the opinion.
    
      T. C. Campbell, attorney, and N. Quackenbos, of counsel for appellant, on the questions considered in its opinion, argued—
    I. Whether the plaintiff was a passenger or not, technically speaking, is a matter of no consequence. The true rule is, a carrier undertakes to protect such persons as the plaintiff against any injury arising from the negligence or willful misconduct of its servants while engaged in performing a duty which the carrier owes to such persons. Story on Evidence, § 452; Story on Agency, §§ 400 and 406 ; Starks v. Saltonstall, 13 Peters, 181: Joel v. Morrison, 6 Carrington & Payne, 501; Sleath v. Wilson, 7 Id.; Booth v. Minster, 7 Id. 66; Sanford v. The Eighth Avenue R. R. Co, 23 N. Y. 346 ; Rounds v. Del., Lack. & W. R. R. Co., 64 N. Y. 134; Shannon v. Boston & Albany R. R. Co. vol. 4 of Eastern Reporter, p. 105; Stewart v. Brooklyn Cross-town R. R., 90 N. Y. 588; Isaacs v. Third Avenue R. R. Co., 47 N. Y. 122, is discredited, and, in fact, overruled. Greville v. The Manhattan R. R. Co., Daily Register of January 8, 1884; Jackson v. The Second Avenue R. R. Co., 47 N. Y. 274; Hoffman v. The N. Y. C. & H. R. R. R. Co., 87 N. Y. 25; Railroad v. Bleeker, 27 Md. 277; Pittsburgh R. R. Co. v. Slusser, 19 Ohio, 157; Bryant v. Rich, 106 Mass. 189; Meyer v. Second Avenue R. R. Co., 8 Bos. 305.
    II. The question as to defendant’s liability was one of fact, which should have been submitted to the jury for their determination. The question whether a servant is acting in the scope of his authority is to be. determined from all the facts and circumstances of the case. In this case the defendant admits that some of its servants were charged with the duty of removing persons from the depot, and the servant in question undertook to perform that duty, and whether he was acting in the line of his duty was a question of fact.
    This view is fully sustained by many cases: Rounds v. Del., Lack. & West. R. R. Co., 60 N. Y. Rep. 137; Schwier v. N. Y. Cent. R. R. Co. 12 Weekly Digest, 215; Jackson v. Second Avenue R. R. Co., 47 N. Y. 274; Grovelle v. Manhattan R. R. Co., 20 W. D. 483; Lesan v. Railroad, 1 Eastern Reporter, 100.
    
      Davies, Cole & Rapallo, attorneys, and Hugh L. Cole, of counsel, for respondent argued :
    I. The plaintiff cannot recover in this action, unless he has shown either (1) that at the time the alleged assault was committed upon him, he was, in fact and in law, a passenger upon defendant’s railway; or (2) that the assault was committed by one of the defendant’s servants acting within the scope of his authority.
    He was not a passenger under the following case: Price v. Pennsylvania R’y Co., 96 Penn. State, 267; Brien v. Bennett, H. C. and P. 724; Davis v. C. L. R. R., 10 Abb. Pr. 300 ; Gordon v. G. St., & N. R. R. Co., 40 Barb. 546 ; Cleveland v. New Jersey Steamboat Co., 68 N. Y. 306.
    n. The defendant, therefore, can only be held liable, if at all, under the doctrine applicable in such cases to the liability of a master for the tortious acts of his servant ; and this liability only attaches when it is affirmatively shown, not only that the servant, while in the employ of his master, and doing his master’s work, committed the tort, but also that in so committing the tort he acted within the scope of his employment. Isaacs v. Third Ave. R. R. Co., 47 N. Y. 122.
    This case, although overruled by the court in Stewart v. The Crosstown R. R., 90 N. Y. 394, so far as it refers to the obligation of a carrier to his passengers, is good law as to the liability of a master for the torts of his servant.
    It is clear that the ticket agent was not acting within the scope of his employment when he committed the assault upon the plaintiff; that he had abandoned the employment to which he had been assigned by the defendant and left the place of such employment, and that in the assault upon the plaintiff he was simply committing a criminal assault.
   By the Court.—Sedgwick, Ch. J.

The jury might have found in the testimony given, the following facts. The plaintiff went to the ticket office of one of the defendants’ stations of their elevated road and offering his fare asked the ticket seller for a ticket. The ticket seller refused to sell him one, giving as a reason that the plaintiff was drunk. The plaintiff was not drunk. He turned back to go out of the station. The ticket seller left his office and walked after the plaintiff, saying, ‘"‘You get down stairs.” The plaintiff had gone down several steps, when the ticket seller pushed the plaintiff so forcibly that the plaintiff fell over the rail and upon the pavement below. By this he was badly hurt. The ticket seller as he pushed said to the plaintiff “ Go to hell, &c.” At this time behind the ticket seller was a man. Both of them had a uniform dress, the same as the employees of the railroad wear.

The learned judge below was of the opinion that the testimony incontrovertibly showed that the act of the ticket seller was so malicious and wanton, that it must be inferred that it was not done in the performance of any employment of the defendant, inasmuch as because the plaintiff was leaving the station with no delay, there was no duty of the ticket seller to the defendant to compel the plaintiff so to leave it.

On this appeal the plaintiff claims that it should have been left to the jury whether the ticket seller when he pushed the plaintiff was in the performance of what he had been employed for by the defendant. The respondent claims that the testimony shows that the ticket seller was employed to sell tickets and that there is no proof that he was employed by the defendant to do anything more.

It may be said without discussion to be the law, that the plaintiff, after he had failed to buy a ticket, was still lawfully upon the station, with a duty of leaving it with ordinary promptness and of not loitering there or of using it for any other purpose than that of leaving it. If the plaintiff had not begun to go out of the station, the defendant would have had a right, after he had been requested to leave, and after he refused to go, to use such force, not illegal in its kind, as was necessary to enforce a compliance with the request. The defendant acts through its agents. It had the right to empower agents to enforce the right that has been described.

If an agent employed to enforce this right did an act which was in fact done towards enforcing it, the defendant is responsible for the act and for the particular manner in which it was done, although the agent selected the manner, for a purpose of his own, in passion or wilfulness. Cosgrove v. Ogden, 49 N. Y. 255; Mott v. The Consumers Ice Co., 73 N. Y. 543 ; Stewart v. Brooklyn & C. R. R. Co., 90 N. Y. 588. The responsibility exists if the agent be employed for some additional duty. It is enough if his act is within the limits of a larger— more general—employment.

As I understand the testimony here, the jury could have found that the push, which is the act complained of, was done for the purpose of compelling the plaintiff to leave the station more quickly than he was leaving, or not to loiter there. The defendant was responsible then for the act, if the person who did it was shown by the testimony to be one employed by them to keep the station clear of persons not there on business, or improperly remaining there. The defendant was responsible for the selection, by such a servant, of the occasion on which it would be proper to eject such a person. And the question is, was there any testimony tending to show that the ticket seller was a servant under such an employment.

The jury might under the testimony have determined as follows: It was for the interest of the defendant to have one or more servants at the station whose duty it would be to keep it clear for its proper use. The persons who seemed to be in charge of the station had been appointed by the defendant to perform that duty. Irrespective of the presence and conduct of the ticket seller, the conduct and silence of the other man in uniform, who happened to be in charge alone or with the ticket seller, and his tacit approval of the conduct of the ticket seller, was a proof that the ticket seller was acting in accordance with the regulations of the defendant. This tacit approval was not of the kick or its force but of the previous conduct of the ticket seller, in approaching the plaintiff as if to compel him to leave. The jury might indeed have found that there was co-operation between the two. The ticket seller could not make himself the agent of defendant by his declarations. Apart from them, he was evidently employed to sell tickets and therefore to refuse to sell them. It was evidently within the scope of his employment to require a person to whom he had refused a ticket to move away and to compel him to move if that were necessary, and to provide in a proper way that he should not immediately return, and the jury might have found that he determined that the complete removal from the station of the plaintiff, was a proper provision against the plaintiff returning and making reiterated demands for a ticket.

I am further of opinion that the conduct of the ticket seller in the whole course from the time he left his place in the office, and then following the plaintiff to the stairs, was some evidence as to the character of his employment, prima facie, happening as it did on the premises of the defendant.

On these considerations and others not adduced, I am of opinion that the learned counsel for appellant is right in claiming that it was for the jury to find whether or not the ticket seller was attempting to force the plaintiff to leave the station, and whether or not the ticket seller in such an attempt was acting within an employment by defendant.

Judgment reversed and new trial ordered with costs to abide the event.

Ingraham, J., concurred.  