
    THOMAS HAMILTON, Plaintiff and Respondent, v. THE THIRD AVENUE RAILROAD COMPANY, Defendant and Appellant.
    I. Carriers of Passengers.—Horse-car Railroads. —Exemplary
    Damages. \
    1. Bight of passenger to be carried to his destination on payment of one fare.
    
    
      a. One who, having paid to the conductor of one car the proper fare to his destination, upon that car stopping short of his destination, gets off and enters another car, he is entitled to ride in that other car without payment of further fare, unless he has neglected to comply with a rule of the company requiring him to provide himself with a transfer ticket, and deliver it to the conductor of the second car.
    2. Ejection of passenger by conductor.
    
    1. Liability of company therefor.
    
      a. When the company instructs its conductors to put off their cars, with as little force as may be necessary, those passengers who neither pay their fare nor produce a transfer ticket, it becomes liable for the act of one of its conductors in putting off a passenger who, not being bound either to pay fare or produce to him a transfer ticket, refuses to do either.
    1. In such case the act is done in the line of the conductor’s duty; and the company is liable for it as well when it is done through errm' of judgment or mistake of facts, as when it is done in a negligent or reckless manner.
    2. Damages recoverable against the company.
    1. Compensatory, which includes damages for pain and suffering of both body and mind down to the time of the trial, and also for such future suffering as the evidence renders reasonably certain must necessarily result from the injury.
    2. Exemplary, in addition to the compensatory, damages.
    II. Verdict, setting aside, as being against the weight of the evidence.—New Trial.
    1. Triad. Steps necessary to be taken on, in order to enable the unsuccessful party to urge, as ground for a new trial, that the verdict was against the weight of evidence. a. He must move the court to direct a verdict in his favor, on the ground that the evidence was not such as to justify the jury in finding against him, or if he be defendant, he may, at the close of the evidence, move for a dismissal of the complaint, on the ground that the evidence is not sufficient to carry the case to the jury, or to warrant a verdict against him.
    III. Relief, amendment of pbayeb fob.—On Tbial.
    1. Increasing on the trial the amount of damages prayed for, is matter of discretion with the trial judges.
    2. Review of the discretion. Its exercise will not be reviewed when no harm has resulted therefrom.
    IV. Chabge, ebbob in, what is not.—Tbial.
    1. Referring to and commenting on decided cases in support and elucidation of'a proposition of law afterwards charged (the amount of the recoveries therein not being stated), does not constitute error.*
    2. Remark of judge to counsel in presence of jury, that his charge was favorable to him, is not error.
    1. Mode in which atone such comment and remarle can, if it has produced injury, he taken advantage of. Only when assigned on motion for a new trial as a specific ground for the granting of a new trial, for the reason that the jury may possibly have been influenced thereby. .
    V. Reinstettcting Juey. Refusal to.—Tbial.
    1. Where the jury has already received instructions covering a certain point, the judge is not bound on their request, made after their retirement, to reinstruct them upon it.
    2. Nor is he bound, after the jury has retired, to give any further instructions at the request of either party.
    Before Freedman and Curtis, JJ.
    
      Decided November 30, 1872.
    Appeal from judgment and order denying a motion for a new trial.
    The action was brought to recover damages claimed to have been sustained by plaintiff, in consequence of being put off one of the defendant’s cars for an alleged non-payment of fare.
    
      * Note by Repobtebs.—It might perhaps have been error for the judge to have stated the amount of the recoveries had in these cases.
    
      Upon the trial plaintiff testified that a few minutes after 12 o’clock, on the 20th day of June, 1868, he took passage at Ninetieth Street and Third Avenue on defendant’s car No. 75, on its downward passage, and paid the usual fare of seven cents; that, upon reaching the depot at Sixty-fifth Street, the car turned and went into the depot, and its conductor told the passengers to “change cars; ” that plaintiff, with the other passengers, left car No. 75; that defendant’s car No. 2 was waiting to receive them; that being told by the conductor of car No. 2 that, if he came off car No. 75, he was all right and would not need a transfer ticket, he went in and seated himself in car No. 2 ; that car No. 2 thereupon proceeded. on its trip towards the City Hall, and at about Fifty-ninth Street its cond actor asked plaintiff for his fare; that plaintiff declined to pay again ; that thereupon the car was stopped and the conductor fetched plaintiff to the front platform to put him off ; that plaintiff there took hold of a handrail by the window to resist the attempt tó push him off; that the conductor pinched plaintiff’s hand and pulled it open, and then succeeded in forcing plaintiff off; that the plaintiff thereupon took the next car, and, upon payment thereon of six cents fare, was carried to his destination.
    The defendant produced three or four witnesses, who testified that car No. 75 did not run so as to connect with car No. 2 ; that car No. 75 was a “through car,” and on the day specified by plaintiff did not run into the depot, but continued its through trips, and that for this reason the occurrence, as stated by the plaintiff, could not have happened.
    The learned judge then charged the jury, among other things, as follows:
    “In the first place, gentlemen of the jury, you are to take into consideration,—and I wish you to leave it as a separate question for consideration,—whether the charge stated in the pleadings is made, out by the testimony in the case.
    “ It is charged here, in the pleadings, that upon a certain occasion the plaintiff paid his fare above Sixty-fifth Street upon this railroad, to go through to his destina- ' tion. It is admitted by the answer that seven cents, which he paid, was all that was required to be paid for the fare from any point above Sixty-fifth Street to any point below Sixty-fifth Street. You will therefore have no trouble about that question. The next question for you to decide is, whether these facts occurred as alleged in the complaint, that the plaintiff actually paid his fare, and was afterward put off the car, as claimed in his complaint, and as claimed by his testimony.
    “ The testimony here is contradictory.
    “ This is one of those cases peculiarly within the province of a jury to weigh, estimate, and decide. It is not my business, as a court, to direct you in the premises, or to even give you an intimation, perhaps, beyond reflection upon the character of the testimony as it appears in the case. The plaintiff has been upon the stand. You have heard him testify. He has given a clear statement in regard to dates, and the time of this occurrence. He distinctly states that it occurred on the 20th day of June ; that he paid his fare in the regular way ; that it was received ; that it was his intention to go to a point below Sixty-fifth Street; and that he paid his fare in accordance therewith, seven cents. From that time, gentlemen, there is no doubt that the character of passenger came upon him, and that these parties, the defendants, were in the position of common carriers, compelled by the law to do all that was necessary to insure his safety to the place where he should leave the car. They were bound to treat him as such.
    “He states, also, that when he came to Sixty-fifth Street, the car he was upon turned into the depot; that the conductor called out, “Change cars;” that he heard that said by the conductor; that the passengers left and went into another car that was very near it; that he spoke to a man who afterwards acted as conductor upon that car, and asked him if he required a check to go on that car, and he was answered that he did not; that he went on board that car, and that somewhere in the neighborhood of Fifty-ninth Street, or below there, it matters not exactly, after he had gone in and taken his seat in this car No. 2, he was requested by the conductor to pay his fare ; he refused; thereupon the conductor put him off the car. There was a scuffle. It does not appear that there was any undue violence, or any serious damage to the plaintiff from the scuffle which ensued; but the plaintiff tells us that he was put off the car, and left there, and took another car, and paid six cents .for going on to the place of his destination, and there he left the matter.
    “These are the facts testified substantially by the plaintiff.
    “Now, on the other side, comes the testimony of the officers of this road, and you have heard them testimony. In the first place, the superintendent and the receiver have come and showed you, by means of a description of the manner in which that road is carried on, how the cars ran, that on that day car No. 75 was a through car from Harlem to the City Hall; that car No. 2 was a car running from Sixty-fifth Street to the City Hall; that these two cars in nowise connected according to the time.
    “Now, although their testimony is not positive, from their own personal knowledge, like the testimony of the plaintiff in this case—for they testify that they do not know that they even saw those cars on that day—yet it is a kind of testimony entitled to consideration on your part as affecting the facts in the case.
    1 ‘ Then there comes upon the stand the conductor of car No. 75, who testifies to you positively that he was on that car on that day ; that he came through from Harlem here on regular trips ; that there was no stopping ; that there was no going into the depot at Sixty fifth Street on that day ; and that it did not connect with car Ho. 2. He testifies as positively on that subject, as far as car Ho. 75 is concerned, as the plaintiff testifies to the facts that he speaks of.
    “ Then comes before you the conductor of car Ho. 2, and positively states that he was on that car on that day ; and that it did not connect with car Ho. 75. He states that he ran trips from the depot in Sixty-fifth Street to the City Hall on that day, and that no such occurrence took place upon that car as is stated by the plaintiff.
    “ The driver testifies substantially to the same facts, that he was on that car; and he testifies from the memory, as positively as the plaintiff in this case, that such an occurrence could not take place as a man being put off behind him with a box of tools without his knowing it.
    1 ‘ This is the testimony before you that you will have to consider and decide upon, in regard to the commission of the offence and the wrong charged in these pleadings. You have got to weigh this testimony. It is contradictory, I admit; but it is the peculiar province of every jury to take into consideration, and to reconcile if possible, or at least to decide, if they can agree upon the testimony. It often happens that juries do not agree when there is such a state of contradiction. I only advert to one or two rules in reference to contradictory evidence, that a jury has a right to consider always in such cases. You have a right to consider the appearance of the persons upon the stand when they testified, whether they appeared to be telling the truth ; whether their statements were full, with regard to the whole matter; whether they covered the whole case ; and you have a right to consider the circumstances and facts about the matter as to the probability of its occurring under the circumstances. It is always proper for the jury to consider these points in weighing contradictory testimony, to arrive at the truth. It is not always, gentlemen, that the greatest number of witnesses establishes a certain fact. It may be a less number of witnesses, and the jury will establish a fact against the testimony of the greater number of witnesses, because of those circumstances and facts round about the testimony which carry conviction to the minds of the jury. You must take this testimony and weigh it, and consider these points, and decide whether these circumstances happened, or did not happen. You may come to the conclusion that the plaintiff is mistaken about these two cars ; that this connection was not as he stated. You may come to the conclusion that he is mistaken about connections on the two cars so closely. You may arrive at the conclusion that he is right, and that the officers of this road running these cars are mistaken, or have forgotten of this occurrence taking place.
    “ This is a matter that is before you; a plain, common circumstance which you are to consider without reference to the character of the parties, without reference to any sympathy; but which you are to weigh just as you would any other fact, and come to a conclusion; and until you arrive at that conclusion, whether those facts occurred as stated by the plaintiff or not, you are not in a position to go any further. You must decide that fact.”
    He then charged the jury, that if they found for the plaintiff they might assess exemplary as well as compensatory damages. In this part of his charge he referred to, and commented on, several decided cases as bearing on and sustaining his view, that exemplary damages could be given, but did not state the amounts of the verdicts in these cases. After the charge the following proceedings took place.
    
      The plaintiff’s counsel begged the judge to observe that the plaintiff took no exception to the charge, and the presiding justice said :
    I do not think you ought to, for I think the charge was altogether on your side.
    To this remark the defendant duly excepted.
    The defendant requested the judge to charge—
    1. If the jury believe the plaintiff’s story, the only damage he is entitled to recover is the sum of six cents, being the amount of the additional fare paid by him on another car as testified to by him.
    (This the judge refused to charge, and to his refusal the defendant duly excepted.)
    2. When the conductor of car Mo. 2 demanded of the plaintiff the payment of his fare, and the plaintiff refused payment, and failed to produce a transfer ticket as evidence of such payment on car 75, and he was requested by the conductor to leave the car and refused, the conductor was justified in using such force as was necessary to ensure the removal of the plaintiff from car Mo. 2.
    (This the judge refused to charge, and to his refusal the defendant duly excepted).
    3. Meither malice nor bad faith is shown on the part of the defendant; and this case does not fall within the rule of exemplary damages.
    (This the judge refused to charge, and to his refusal the defendant duly excepted.)
    4. If the jury believe the evidence on the part of the defendant, the defendant is entitled to a verdict.
    (This the judge refused to charge, and to his refusal the defendant duly excepted.)
    5. The plaintiff is bound to prove the damage, if any, sustained by him by reason of the alleged acts of the defendant; and, in this case, no damage beyond the payment of the additional fare of six cents has been proved.
    
      (This the judge refused to charge, and to his refusal the defendant duly excepted.
    6. When the conductor of car No. 2 demanded of the plaintiff that plaintiff should pay him the fare, or leave the car, the plaintiff should either have paid the fare demanded," or have peaceably left the car.
    (This the judge refused to charge, and to his refusal the defendant duly excepted.)
    After the jury had retired, and been absent over an hour, they sent a request to the presiding justice for instructions as to whether it was necessary for them to believe that defendant’s cars No. 75 and 2 connected on June 20th, 1868, as testified to by plaintiff, in order to render a verdict for the plaintiff.
    The justice communicated the jury’s request to the counsel of the respective parties. Counsel for plaintiff requested him to instruct the jury that it was not necessary so to believe. Counsel for defendant requested him to instruct the jury that the number and times of running of the defendant’s cars specified by plaintiff were material facts, and unless they believe his testimony with respect thereto, they should not find a verdict in his favor.
    But the justice returned answer to the jury that the counsel of the respective parties did not agree as to what his instructions should be, and he therefore would give them no instructions on the point at all.
    To this ruling and announcement the defendant duly excepted.
    The jury subsequently found a verdict for the plaintiff, and assessed his damages at the sum of five hundred dollars.
    The defendant moved upon a case made at Special Term, for a new trial; which motion was denied.
    The appeal is from the order denying motion for new trial, and also from the judgment.
    
      
      Jas. P. Lowrey, attorney, and of counsel for appellant.
    
      George the Count Johannes, attorney and counsel for respondent.
   By the Court.—Freedman, J.

Allowing, at the commencement of the trial, the amount claimed in the complaint to be increased from $3,000 to $5,000, without a previous notice of motion therefor, was a matter resting in the discretion of the court (Richtmeyer v. Remsen, 38 N. Y. 206; Meyer v. Fiegel, 7 Rob. 122). Hot the slightest harm has accrued to the defendant from such amendment, and consequently no reason exists for the interference of the General Term with the exercise of that discretion.

The detailed statements made by the court, in charging the jury, of other similar cases and of the action of the courts therein, and the remark to plaintiff’s counsel in reply to said counsel’s announcement, that he had no exceptions to take, involve no error, but present mere questions of propriety. These are not re viewable on a bill of exceptions, and can only be considered on a motion for a new trial, if assigned as a specific ground for the granting of a new trial, for the reason that the jury may possibly have been influenced thereby. Not having been thus urged, we must disregard them on appeal.

Defendant’s exceptions to the rulings of the court below in admitting certain evidence, and to the refusal of the court to reinstruct the jury, after their retirement under an elaborate charge covering the point respecting which additional information was sought, are clearly untenable.

On the trial, defendant’s superintendent testified that “if a passenger leaves one car, and gets on another, he “ must either pay his fare or produce a transfer. If he “does neither, the instructions of the company are “to put him off, using as little force as may be neces- “ sary. The only guide to the conductor is the fare or “a transfer.” Upon this testimony the court was justified in charging, that putting a passenger off from a car in case of refusal to pay fare, is within the line of the duty and employment of defendant’s conductors. And the jury having by their verdict adopted plaintiff ’ s version of the occurrence, instead of believing the testimony of defendant’s witnesses, defendant’s liability to respond in damages became fully established. For it is well settled that, if an act is done by a servant in the business of the master and within the scope of his employment, the master is liable to third persons for any abuse of the authority conferred, and for injuries resulting from any error of judgment or mistake of facts by the servant, as well as for those resulting from a negligent or reckless performance of his duties. This rule applies equally to corporations and natural persons (Weed v. The Panama R. R. Co., 17 N. Y. 363; Sandford, Adm’r, v.The Eighth Av. R. R. Co., 23 N. Y. 343; Drew v. The Sixth Av. R. R. Co., 26 N. Y. 51; Higgins.v. The Watervliet Turnpike Co., 46 N. Y. 23).

The remaining question, therefore, is to what extent the law will hold the defendant liable. This is a grave and most important question. Upon this point the jury were instructed that, in case they found for the plaintiff, they might assess exemplary as well as compensatory damages. The latter were held to be such as would compensate the plaintiff for the injuries actually sustained, including his pain and anguish of mind and body. The former were defined as damages which are given as an example, by way of punishment, to prevent a repetition of the wrongful act complained of, and they were described as something in the character of a punishment by the people, with the difference, however, that the person injured is the one that recovers the damages-, instead of the people, by fine or imprisonment. At the same time the jury were severely cautioned against rendering a verdict for an excessive amount. They were instructed that the case is not one calling for severe punishment; that if they came to the conclusion that they must find damages for the plaintiff, and that they must be exemplary as well as compensatory damages, they should consider the character of the offence, and affix a sum within the limits of reason, by way of example, but not as an act of impulse or of passion; and that they should decide between the plaintiff and the corporation defendant as they would decide between man and man. These definitions and instructions were not only substantially correct, but eminently proper, if the case itself justified the instruction in any manner that the jury might give exemplary in addi tion to compensatory damages. Damages for pain and anguish of body and mind are not exemplary or punitory in their character, in any strict or proper sense of those terms, but compensatory (Morse v. The Auburn & Syracuse R.R. Co., 10 Barb. 621); and in actions for injuries to the person occasioned by the negligence of the defendant, it has been repeatedly held, that the plaintiff may recover damages for his pain and suffering not only down to the time of the trial, "but future suffering, which, the evidence renders reasonably certain must necessarily result from the injury, may also be compensated (Curtis v. Rochester & Syracuse R.R. Co., 18 N. Y. 534, affirming S. C., 20 Barb. 282; Caldwell v. Murphy, 1 Duer, 233, affirmed in 11 N. Y. 416).

The same rule as to compensatory damages applies with still greater force to actions of assault and battery, and it is no answer to the enforcement of the rule that the assault was committed by an agent, if committed by such agent in the line of his duty and within the scope of his employment. In such case'the master is liable as principal.

How, in Caldwell v. The Hew Jersey Steamboat Co., 47 N. Y. 296, the present Court of Appeals fully endorsed the principle that, in any case where exemplary damages may be recoverable against the servant, they should be allowed against the master, if it appears that he had reasonable notice of the negligent habits of the servant, or if he left the servant without control or supervision in the work. In addition, it was distinctly held, that corporations are not exempt from the infliction of punitive damages in a proper case. That the case at bar is one of that character, seems to be clearly apparent from the decision of the Supreme Judicial Court of Maine in Goddard v. The Grand Trunk Railway, reported as a leading case upon the points involved in the 10th volume of the new series of the American Law Register. Justice Walton, in delivering the opinion of the court in that case in favor of sustaining a verdict of $4,850, discusses at length the question of the liability of corporations as common carriers of passengers for the unlawful acts of their employes committed upon such passengers, to whom the said corporations, as such carriers, owe the legal duty of exercising the highest degree of care that human judgment and foresight are capable of, to make the journey safe. He then gives an interesting review of the origin, growth, and application of the doctrine of exemplary damages, and points out that the said doctrine is even more beneficial in point of public interest in its application to corporations than in its application to natural persons. His reasoning upon this point commends itself so forcibly to the intellect, and is so fully sustained by "the numerous authorities cited in its support, that further elaboration of the subject here would be a work of supererogation. A simple reference to. it is amply sufficient.

There being no error in the proceedings below, the judgment and order appealed from must be severally affirmed with costs.  