
    George Miller, Respondent, v. John King and John G. McCullough, as Receivers of The New York, Lake Erie and Western Railroad Company, Appellants.
    
      Railroad—breach of contract by leaving a passenger at the wrong station—evidence as to the cost of transportation therefrom to his destination.
    
    In an action to recover damages for the breach of a contract, by a railroad company, to furnish the plaintiff with railroad transportation between two points, in that he was left at a place some three miles distant from his destination, the company may properly prove what was the regular charge for the transportation of a passenger from the place where the plaintiff was left to tíre place of his destination, as affecting the damages which the plaintiff is entitled to recover.
    Goodrich, P. J., dissented.
    Appeal by the defendants, John King and John G. McCullough, as receivers of The New York, Lake Erie and Western Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of Orange county on the 5th day of February, 1898, upon the verdict of a jury for $500 rendered after a trial at the Orange Trial Term, and also from an order entered in said clerk’s office on the 5th day of March, 1898, setting aside the verdict and granting a new trial, unless the plaintiff stipulates to reduce the verdict to .the sum of fifty dollars, in which event the motion for a new trial was to stand denied.
    
      
      Henry Bacon, for the appellants.
    
      John W. Lyon, for the respondent.
   Per Curiam :

This case has been tried upon the theory approved by the Appellate Division on the second appeal. (Miller v. King, 21 App. Div. 192.) Unfortunately, however, an error has been committed in the exclusion of evidence offered by the defendants upon the question of damages which compels us to reverse the judgment.. It will be remembered that the contract of the defendant was to furnish the plaintiff with railroad transportation from Middletown to Sparrow-bush, whereas they left him at Port Jervis, a place some three miles distant from his destination. The defendants called as a'witness a lively stable man, resident in Port Jervis, whose business included the conveyance of persons from Port Jervis to Sparrowbush, This .witness was asked what was the regular charge for the transportation of a passenger between these two places, and an objection to the question was sustained by the court, to which ruling an exception was duly taken. The defendants^ were thus prevented from giving evidence which was plainly d'esigned to .show that the plaintiff could have procured a vehicle to take him from Port Jervis to Sparrow bush at an expense which -was trifling compared to the amount demanded in his complaint. We think the defendants were entitled to prove this fact. It may be that it would not have reduced the verdict, but, on the other hand, if the jury had been informed that transportation could readily have been obtained at an expense of a few. dollars, it may be that the verdict would have been very much. less than the amount to which it was reduced by the learned trial judge.

For this error the judgment and order appealed from must be reversed, and a new trial granted, costs to abide the event.

All concurred, except Goodrich, P. J., who read for affirmance.

Goodrich, P. J. (dissenting):

This action is not unfamiliar to the court. It has been argued before this tribunal of its predecessor, the General Term, on five different occasions. It is unnecessary to refer to any of the reports except the one which appears in 21 Appellate Division, 192, where the facts fully appear and where the court laid down the doctrine that the action, as its theory was presented and insisted upon by the plaintiff’s counsel, was an action for the breach of a contract made by the defendants, as receivers of the New York, Lake Erie and Western Railroad Company, to transport the plaintiff from Middle-town to Sparrowbush, upon an ordinary railroad ticket. The rule laid down by the court was that the plaintiff, on the facts which appeared by the record, was entitled to recover damages for a breach of the contract, and that he was not necessarily limited to nominal damages. In this particular, the court overruled the previous decision in 88 Hun, 181.

The counsel for the defendants states in his points that precisely the same state of facts ” were presented to the jury on this trial which were presented on the former trial. The trial justice, following the rule of damages laid down by us, instructed the jury that if they found for the plaintiff, they were to find his actual damages, which need not necessarily be limited to nominal damages. The jury found a verdict for $500. The defendants moved to set this aside, on the ground, among .others, that it was for excessive damages, and the court reduced the verdict to $50, upon which the judgment was entered from which this appeal is taken.

The defendants’ counsel also contends that, “ upon precisely the same state of facts as disclosed by this record, this court'held that the verdict for-$100 in favor of this plaintiff was excessive and sent 'the case back for a new trial. The verdict rendered by the jury for $500 was so excessive that it should have been set aside because the amount indicated that the jury were controlled by passion and prejudice.”

I cannot so regard it. The verdict on the first trial was for $100, and from the report of the case it does not appear that the verdict was attacked on the ground that it resulted from passion or prejudice, but that, treating the action as one for breach of contract, it was excessive. ' But this court practically disapproved of that decision on the last appeal, and laid down the rule that the plaintiff was not necessarily limited to nominal damages. The trial justice, in the exercise of a power which we have recently and distinctly approved (Branagan v. Long Island R. R. Co., 28 App. Div. 461), reduced the verdict to a sum which was justified by the evidence, and merely sufficient to carry the costs of the litigation; and if the action of the jury was the result of passion and prejudice, such result has been fairly corrected. I do not regard the- verdict as reduced as excessive under the circumstances disclosed by the evidence.

I think the judgment should he. affirmed.

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