
    William W. Penfield, Appellant, v. The Cleveland, Cincinnati, Chicago and St. Louis Railway Company, Respondent.
    
      Railroad — expulsion of a passenger who has entered a station by a prohibited way — tiie company may do a protective but not a punitive act— the fact that the station is managed by another corporation is immaterial.
    
    A. passenger on a railroad train, who had properly alighted therefrom at a way-station, in attempting to get upon the train again, without fault on his part or that of the railroad company, got upon the wrong car and was carried out of the station yard. He returned to the station yard along the line of the tracks, and, after having entered it, and when within 100 feet of his train, was compelled by the- station officer to retrace his steps and to go around and enter the station through the ordinary entrance, in consequence of which he lost his train. A rule prohibited entrance to the station along the line of the tracks because of the danger attending the crossing of them.
    
      Reid, that, as the passenger was in the station and had already encountered the-danger of crossing the tracks when ejected, his ejection simply exposed him again to this danger, and was, therefore, not a protective but a punitive act on the part of the station officer, who, in doing it, exceeded his powers and those of the railroad company;
    That it was no defense to the railroad company, which was hound to furnish a station to its passengers, that the station in question was a union station, under the management of another corporation.
    Appeal by the plaintiff, William W. Penfield, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of the county of Westchester on the 18th day of November, 1897, upon the report of a referee^
    
      
      Henry W. Smith, for the appellant.
    
      Henry L. Sprague, for the respondent.
   Cullen, J.:

The plaintiff was a passenger on one of the defendant’s trains, his intended journey being from Greencastle, Indiana, where Iiq first boarded the cars, to New York city. When the train arrived at Indianapolis the plaintiff, with the consent of the conductor, left the train and went into the reception room of the station to obtain •some baggage which he had previously left there, and to secure his ■sleeping car ticket. On his' return he found the train had been moved, and was directed by the conductor to a standing car as being the car which he should take. Finding the vestibule door of this •car locked, he went on the platform of the next car to it, a dining •Car, from which to seek entrance into his own car. While on the platform of the dining car that car was moved several hundred feet ■away to a point outside of the station, The plaintiff thereupon vent back along the tracks and entered the station, and. when within the station was expelled from it by a station policeman, who informed him'that.the rules forbade any one entering the station from that •direction. The plaintiff then entered the station through the ordinary entrance, but found when he reached there that his train had left. This action is brought for his expulsion by the officer.

We shall assume, as held by the learned referee, that there was no negligence on the part of the defendant in directing the plaintiff to his car, or in moving the dining ear away. At the same time we see no negligence on the plaintiff’s part in seeking to enter the car by the means which he adopted. In that view the fact that the plaintiff was carried out of the station was simply an accident, for whichneither party was responsible. We also agree that the rule prohibiting passengers from entering the station along the tracks was reasonable, and that the defendant was justified in enforcing it. But in our opinion the interference of the defendant’s employee came too late. The plaintiff testified that he had proceeded within the station a distance of about 100 feet, and was within 100 feet of his train when he was ejected by the station officer., I find no evidence in the case contradicting this statement. The policeman says that he saw the defendant going into the west end of the union station, and that he was standing right at the end. He further says that he ejected the plaintiff,, but where the plaintiff then was he does not state. From this evidence it is clear that the plaintiff was within the station when the officer sought to remove him. The station superintendent testified that the rule prohibiting entrance into the station through the west end was established to prevent the danger which would occur to passengers in crossing the tracks which it was necessary to traverse in order to reach that end of the station. There seems to have been no danger after the party had entered the station, nor any rule against a person who had entered the station through the ordinary means of ingress from being at the precise point where the plaintiff was when he was ejected. Therefore, the plaintiff was in no way in the wrong in being where he was at the time of his ejection, but simply in the manner in which he had reached that position. We think that under these circumstances the case falls within the printiple of Huerstel v. N. Y. & Harlem R. R. Co. (1 City Court Rep. 134); Smith v. Manhattan Railway Co. (45 N. Y. St. Repr. 865 ; affd. in Court of Appeals on the opinion of Pryor, J., below, 138 N. Y. 623.) In the latter case it is said by Judge Pbyob : “ Undoubtedly the defendant has authority to enforce observance of its regulations, but by preventing, not by punishing, the breach of them. The defendant has no power of retribution, and is incapable of compelling conformity to its rules by the imposition of a penalty. But the ejecting plaintiff for an act already accomplished would have involved a forfeiture of his right to be carried on that train. Only by present, or prospective, and not by past misconduct, does a passenger lose his privileges.”

Here the action of the station officer was clearly' punitive and not protective. The very reason of the rule was to guard against the danger which passengers must undergo in' crossing the tracks to approach the station from this direction. The result of turning the plaintiff out of the station was to compel him -to recross the very tracks the danger of crossing which the rule was established to prevent. ■ '

The station at Indianapolis was a union station for the accommodation of several railroad companies. It was managed through the medium of a distinct corporation, the' control and ownership of which was in the several railroad companies. The provisions for stations is as much a part of the business and .duty of the railroad company as furnishing the trains or roadbed. It is the duty- 'which proceeds both from its calling as a common carrier and from the contract which it enters into with its passengers. Such duty is analogous to a duty imposed by statute, from' liability for the nonperformance of which the company cannot be relieved by delegating the duty to an independent contractor. However it may be as to third persons, as between the defendant and its passengers the station officer at Indianapolis was the defendant’s servant, for whose acts, within the scope of his duty and employment, the defendant was liable. (Pennsylvania Co. v. Roy, 102 U. S. 451; Thorpe v. N. Y. C. & H. R. R. R. Co., 76 N. Y. 402.)

■ The judgment appealed from should be reversed and new trial granted before a new referee, to be appointed at Special Term, costs to abide the event.

All concurred.

Judgment reversed and new trial granted, costs to abide the event, before a new referee, to be agreed on by stipulation or appointed at Special Term. ■  