
    John Raymond Wright, Respondent, v. The Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, Appellant.
    
      Common carrier — statement of a conductor as to the rate of fare — demand of a greater fare, and ejection of the passenger because it is not paid — punitire damages.
    
    A common carrier, operating a street railroad, is bound by a representation made by one of its conductors to a passenger, that its car will carry him between two points for a fare named.
    Where such representation has been made and the passenger, upon his refusal to pay a higher fare demanded, is forcibly ejected from the car by the conductor, at a f>oint about half way to his destination, he may maintain an action against the corporation and recover damages; but, in the absence of proof that the corporation authorized or ratified the tort of the conductor, or was guilty of misconduct in employing or retaining him, the passenger cannot recover punitive damages.
    Appeal by the defendant, The Glens Falls, Sandy Hill and Fort Edward Street Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Washington on the 18th day of May, 1897, upon the verdict of a jury, and also from an order entered in said clerk’s office on the 2d day of June, 1897, denying the defendant’s motion for a new trial.
    
      J. A. Kellogg, for the appellant.
    
      A. V. Pratt and J. M. Whitman, for the respondent.
   Putnam, J.:

The defendant, a common carrier, operates a street railroad between Glens Falls, Sandy Hill and Fort Edward.

The plaintiff claimed, and as a witness testified on the trial, that on the night of January 1, 1896, shortly before twelve o’clock, he saw one of defendant’s cars on the street in Glens Falls going towards Sandy Hill, and inquired of its conductor if the car was going through to the latter place and at the usual rate of fare for passengers of six cents. The conductor answering in the affirmative, the plaintiff boarded the car. When it had proceeded to a spot in the country about midway between Glens Falls and Sandy Hill, the conductor demanded twenty-five cents fare. This the plaintiff refused to pay, but tendered a fare of six cents, which he testified the conductor had informed him would be charged when he entered the car at Glens Falls. The conductor refused to receive the six cents, and thereupon forcibly ejected the plaintiff from the car. -It was claimed that in doing so he used unnecessary force, and also that, after the plaintiff had been thus ejected and was standing by the side of the car, he was assaulted by the conductor.

It was shown that the usual rate of fare charged by the defendant for conveying passengers between Glens Falls and Sandy Hill was six cents, but that it ran a special car late at night to connect with the train of the Delaware and Hudson Canal Company, and charged passengers on such car twenty-five cents. The testimony was conflicting as to the representations made by defendant’s conductor to the plaintiff when he hoarded the car in question. From such testimony it might be doubted as to whether the plaintiff’s statement of the transaction was correct. If in fact, before taking passage on • the car, he inquired of the conductor if it was going through to Sandy Hill and for the usual fare of six cents, and was told that it was, and was not informed, to the contrary before he started, and was afterwards forcibly ejected therefrom upon his refusal to pay twenty-five cents fare, we think the plaintiff was entitled to recover damages for such ejection. The defendant had intrusted the management and control of the car in question to the conductor. The latter was the servant and agent of the defendant, and it, under the circumstances, was bound by his acts and representations. The usual rate of fare was six cents, but on a special car running late at night to connect with the train of the Delaware and Hudson Canal Company, twenty-live cents was charged. It does not appear that the car in question was such special car. The representations of the conductor to the plaintiff that the car would go through to Sandy Hill and that six cents fare would be charged, was one made by an agent intrusted by its principal with the power and duty to carry out its contract as a common carrier with the plaintiff to convey him from Glens Falls to Sandy Hill, and the defendant was bound thereby. (See Dwinelle v. N. Y. C. & H. R. R. R. Co., 120 N. Y. 117, 127.)

The court below was not compelled on motion of the defendant to strike out the evidence given in regard to the alleged assault by the conductor upon the plaintiff while the latter was standing by the car after being ejected therefrom. Under the circumstances disclosed, it was a question for the jury whether or not the conductor was engaged in the performance of his duties as agent of the defendant at the time of said assault. (See Dwinelle v. N. Y. C. & H. R. R. R. Co., supra.)

Assuming, therefore, that on the testimony the jury was authorized to find that the claim of the plaintiff was established—as to the representations of the conductor when he entered the car — in our opinion the judgment and order should be affirmed, were it not for an inadvertent error of the trial court in instructions given to the jury on the question of damages.

In the first instance he charged that the plaintiff under the facts established-by the evidence was only entitled to recover compensatory damages. Subsequently, at the request of the plaintiff’s counsel “to charge that if the jury find that the action of the conductor at any time was malicious, that they may give not only compensatory damages but exemplary damages,” the court remarked, “ I think that is so.” The defendant excepted. The last instruction, therefore, given to the jury was that exemplary damages might be awarded to the plaintiff, if the defendant’s conductor in ejecting the plaintiff from its car acted with malice.

We think that the charge thus made to the jury was erroneous. In Donivan v. The Manhattan R. Co. (49 N. Y. St. Repr. 722), which was an action for injuries inflicted on the plaintiff by the defendant’s servants in ejecting him from the platform of defendant’s railway car, Pryor, J., delivering the opinion of the court, after a careful review of the authorities, reached the conclusion that for the willful tort of a servant the master is not liable in punitive damages, unless he authorize or ratify the tort, or is guilty of misconduct in the employment or retention of the servant. The same doctrine is stated in Murphy v. Central Park, etc., R. R. Co. (16 J. & S. 96, 100); Muckle v. Rochester Railway Co. (79 Hun, 32); Fisher v. Metropolitan Elevated R. Co. (34 id. 433, 437); Cleghorn v. N. Y. C. & H. R. R. R. Co. (56 N. Y. 44, 48); Lake Shore, etc., Railway Co. v. Prentice (147 U. S. 101). (See Sedg. Dam. § 378 ; 5 Am. & Eng. Ency. of Law [2d ed.], 714, 715, and authorities cited.)

Ho facts were shown in the case under consideration which, under the doctrine established in the authorities above cited, authorized the recovery of exemplary damages, and as, notwithstanding the small verdict rendered, we are unable to determine that the defendant was not injured by the erroneous instructions thus given by the trial court to the jury on the question of damages, the judgment should be reversed and a new trial granted, costs to abide the event.

All concurred.

Judgment and order reversed and new trial granted, costs to abide the event.  