
    JOHN M. PECK, Respondent, v. THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.
    
      Employmant of brakeman — scope of — Excessive damages — verdict ofjmy — w hen not set aside.
    
    A brakeman, put in charge of railway cars with a view t,o securing the proper and orderly seating of passengers, forcibly ejected the plaintiff, who disobeyed his direction. Held, that in so doing the brakeman must be deemed to have acted within the scope of his employment, and that the company was liable in case he used excessive and unnecesssary force.
    Upon the former trial plaintiff recovered a verdict for $5,000, which was set aside by the General Term, on the ground that the damages awarded were excessive. Upon the second trial a verdict was recovered of $4,000. Meld, that this second verdict, rendered upon substantially the same facts as were presented to the first jury, must be accepted as final and conclusive.
    
    Motion for a new trial upon exceptions ordered to be heard in the first instance at the General Term, after a verdict in favor of the plaintiff, and appeal from an order denying a motion for a new trial, made upon the minutes of the justice before whom the action was tried.
    The action was brought to recover damages alleged to have been sustained by the plaintiff, in consequence of his haying been forcibly removed from one of defendant’s cars. Hpon the first trial the plaintiff had a verdict for $5,000. Hpon appeal to the General Term, the verdict was set aside, on the ground that the' damages awarded were excessive, the case being reported in 11 N. Y. S. O. R. (4 Hun), 236. Hpon the second trial the jury rendered a verdict in his favor for $4,000. A motion to set aside this verdict having been denied, this appeal was taken.
    
      Samuel Hand, Matthew Hale and Frank Loomis, for the appellant.
    
      Amasa J. Parker, for the respondent.
    
      
       See Lunt v. L. & N. W. Railway Co. L. R. (12 B.), 281.
    
   Bookes, J.:

The case is the same now as when it was before the court on the former appeal, as regards the question of defendant’s liability for tbe act of the brakeman, Cochran. (11 N. Y. S. C. [4 Hun], 236.) The brakeman was stationed at the car to direct passengers who might attempt or desire to enter. The plaintiff disobeyed his direction, whereupon the former forcibly ejected him. There was no evidence that the brakeman had been especially instructed to remove any one from the cars by force, but he was placed in charge to direct passengers with a view to their orderly and proper arrangement therein. Under such a state of facts it was held that the brakeman must be deemed to have been acting within the scope of his employment, and that the company was liable in case he used excessive and unnecessary force in removing the plaintiff from the cars. There has been some loose writing on the question as to the liability of the master for the wrongful act of his servant, but the cases seem to hold quite uniformly that the master is liable for the wrongful act of his servant, if done in his service and within the scope of his employment, and this, although in doing the act the servant depart from the instructions of the master. (Higgins v. Watervliet Turnpike and R. R. Co., 46 N. Y., 23.) In this case, ANDREWS, J., says : “ If he (the master) employs incompetent or untrustworthy agents it is his fault, and whether the injury to third persons is caused by the negligence or positive misfeasance of the agent, the maxim respondeat superior applies, provided only, that the agent was acting at the time for the principal, and within the scope of the business intrusted to him.” In Cosgrove v. Ogden (49 N. Y., 255-257) Judge Grover says : “ The test of the master’s responsibility for the act of his servant is not whether such act was done according to the instructions of the master to the servant, but whether it is done in the prosecution of the business that the servant was employed by the master to do.” It has also been said in some cases, that when the principal puts the agent in place of himself, he is liable for the wrongful acts committed by the agent in the course of the employment, or the carrying out of the business with which he is intrusted. So in the recent case of Rounds v. The Del., Lac. and W. R. R. Co., in the Court of Appeals (2 N. Y. W. Digest, 260), it was held that when authority is conferred on a servant by a master to act for him, it carries with it, by implication, authority to do all things necessary to its execution, and the master is liable for his tortious acts, although be depart from the private instructions of the master, provided he was engaged at the time in doing his master’s business, and was acting within the general scope .of his employment. The case of Bayley v. Man., Sheff. and Lincolnshire R. Co. (L. R., 7 Com. Pl., 415; 4 Eng. Rep. [Moak’s notes], 384), seems much like the one in hand. In this case a railway porter, having been intrusted with a general authority for certain purposes, in connection with the management of the carriages of his employers in the station where he was employed, the company was held liable for his wrongful act in removing a passenger from a carriage which he erroneously thought was the wrong carriage. Now, in the case at bar, the brakeman was put in charge of the cars with a view to secure the proper and orderly seating of passengers. In carrying out this purpose he committed the act complained of. He was acting, therefore, within the scope of his employment. The case was tried upon the theory, and doubtless correctly in that regard, that he might suppress disorder and secure order among the passengers who should enter or desire to enter the cars. As a servant of the company he would have been protected in using all necessary force to secure that end; and it must follow, therefore, within the doctrine of the cases cited, that the company would be liable for his wrongful acts in carrying such purpose into effect.

There was no error in the refusal of the learned judge to nonsuit as requested. Nor was there any error in the admission or rejection of evidence; nor in the charge of the judge or in his refusal to charge as requested. But a serious difficulty arises on the point that the amount of damages awarded by the jury is excessive. It was on this ground that a new trial was granted on the former appeal. The former verdict was $5,000. This sum was deemed quite extravagant and palpably unjust, in view of the case made on the evidence. The verdict on the retrial was for $4,000. The case is quite similar on the proof to that before considered by the court, and the reduction in the sum now awarded by the jury seems much less than it should have been, in view of the remarks then made by the court. (4 Hun, 238, 239.) But even supposing the amount now awarded is deemed by the court large, is it within the province and duty of the court to grant another new trial on this ground? A second jury has considered the case under admonition from the court, and has made some deduction from the sum before awarded. The subject of damages is for the jury, and must be at all times in their discretion and judgment. The court can only interfere on this point when it is apparent that the jury were improperly influenced, or must have acted from passion, partiality or corruption. The authority to grant new trials on the ground of excessive damages is undoubted, but its exercise by the courts has been about equally capricious as has been the verdicts of juries. Little aid can be obtained on this subject by referring to cases, as will be seen on turning to the opinion of Mr. Justice Hogeboom, in Murray v. Hud. R. R. R. Co. (47 Barb., 196). The verdict there was for $8,000, and a new trial was granted unless the plaintiff would reduce it to $6,000. This disposition of the case was directly against the decision in Cassin v. Delany (38 N. Y., 178), where it was held that the General Term had no power to order the reduction of the verdict to a sum named, as the alternative of a new trial. However, the decision in Murray's Case was after this, in 1871, alfirmedin the Court of Appeals. (48 N. Y., 655, n.) The afflrmance in Murray’s Case must be deemed to overrule the previous decision in Cassin v. Delany. It must be admitted, I think, that the verdict of $4,000 in this case is large, in view of the injury here proved; but this sum having been awarded by a second jury, the case having been sent back for reconsideration on that point, and nothing appearing except the amount, on which to predicate partiality, corruption or improper influence, I think the court must accept it as final and conclusive.

The order appealed from must be affirmed, and the motion for a new trial on the case and exceptions must be denied, and the plaintiff is entitled to judgment on the verdict, with costs.

LeabNed, P. J., and BoabdMAN, J., concurred.

Order affirmed, with costs.  