#### JOHN M. PECK, Respondent, *v.*THE NEW YORK CENTRAL AND HUDSON RIVER RAILROAD COMPANY, Appellant.

*Railroad Co.*— *when liable for acts of its agents—act within scope of employment*— *Mccessme damages—verdict of jury—when set aside for.*

Where a brakeman who had been directed to notify passengers attempting to enter a certain car that it was reserved for ladies, and to show them to some other car, removed from said car a person who had entered it, after being forbidden to do so, and in so doing used unnecessary violence: held,, that, even if the brakeman exceeded his orders in ejecting the plaintiff, yet, as between the latter and the company, it was enough that the act was done in the prosecution of the company’s business, and that it was liable therefor.

In actions other than those on contracts, sounding in damages, it is strictly within the province of the jury to estimate the loss suffered, and courts will not interfere unless there is manifest abuse, or the sum is so large as to show that the jury were affected by passion, prejudice or some undue influence

Appeal from an order denying a motion for a new trial, made on the minutes of the justice before whom the case was tried.

This action was brought to recover damages alleged to have been sustained by being forcibly removed from one of defendant’s cars, by an employe of the company. The jury found a verdict in favor of the plaintiff for $5,000.

A motion was made on the minutes for a new trial, and denied, with leave to make a case and exceptions to be heard at the General Term, in the first instance.

*Frank Loomis,*for the appellant.

*A. J. Parker, Jr.,*for the respondent.

James J.:

On the 10th of January, 1871, the plaintiff, having purchased a ticket for defendant’s road, sought to enter a car and was notified by an employe of the company that the car he was about to enter had been set apart for ladies, and gentlemen accompanying ladies, and directed him to a forward car. This employe had been stationed at the train by a person in charge *237there, directed to prevent gentlemen, unaccompanied by ladies, from entering said car. On receiving the notice and direction, plaintiff got upon the platform of a car next in rear of the ladies’ car, looked in a moment, then turned and entered said ladies’ car; the employe arrested his progress, and removed him from the car by force.

When the plaintiff rested his case, a motion was made for a non-suit, on the ground that the brakeman was not acting within the scope of his employment in removing plaintiff, and therefore defendant was not liable for his act. This motion was denied, and defendant excepted.

That a master is not liable for the wrongful acts of his servant, unless done in his service, and within the scope of his employment, will not be disputed. If the employe who removed the plaintiff is to be regarded as a brakeman, unauthorized to perform any duties other than such as pertained to that office, and volunteered the act in question without other authority or direction, then the defendant was not liable in this case. But, as brakeman, he was an employe of the company, subject to its authority and the direction of its officers, and, as such employe, he was directed by the person in charge to see that gentlemen, without ladies, did not enter that car, and it was‘in the performance of that service he did the act complained of. It is true he was not ordered to remove persons from the car; his orders were to notify gentlemen not in charge of ladies that such car was reserved, and direct them to cars forward; so that, in removing plaintiff, he clearly exceeded the orders given him. But this fact the plaintiff could not know. As between him and the company, it was enough that the act was done in the prosecution of his,' the master’s, business, and if the servant deviated from, or exceeded his instructions, that fact did not excuse the master from responsibility. The order to the brakeman, and his performance of it, warrant the conclusion, even as a matter of law, that he was acting within the scope of the employment he ■ was there set to perform, if persons disregarded his directions and persisted in entering the car.

The defendant had the right to set apart a car for lady passengers, and exclude other persons from it; if other persons, after notice, persisted in entering it, the defendant had the right to *238enforce their removal, using no more force than necessary for that purpose. The brakeman did no more than the master had the right to do, under the circumstances, and the presumption is, that in doing it he was acting within the scope of his then employment.* Therefore the motion for a nonsuit was properly denied.

There are several other exceptions in the case, but none which I deem it necessary to discuss; none well taken.

The more important question presented by the case arises on the motion for a new trial, on the ground of excessive damages. It is certain there was no malice in this case, either on the part of the defendant or the servant who did the act complained of; it was simply the exercise of more force than necessary in the accomplishment of a legal act. It was not a case, therefore, calling for punir tive damages, but simply one for compensation for the pain, suffering and loss of time occasioned by the act. Upon this question no evidence was given by the plaintiff other than his own; no medical attendant, to show his condition, was called, nor any medical expert to establish that the sickness, pains and sufferings stated by himself, were the result natural or probable of the force used; while a medical expert was called on the part of the defense, who testified that the sickness and pains described by plaintiff, were not the natural or probable result or effect of the force used upon him, and attributed the sickness and pains to causes pertaining to the plaintiff. The plaintiff’s statements of his injuries, in their nature and duration, are inconsistent with his condition and acts after the occurrence. His whole statementx as to the nature, degree and extent of his injuries, is improbable, from the force used, and the manner of its use upon him, and leaves the impression that his relation of it is highly colored.

In actions other than those on contracts, sounding in damages, it is strictly within the province of the jury to estimate the loss suffered, and courts are reluctant to interfere, and will not interfere, unless there is manifest abuse, or the sum is so large as to evidence that the jury were affected by passion, prejudice or some undue influence. In this action the sum is so large as to demonstrate such to be the case. Five thousand dollars is a sum entirely beyond what was *239justified by the facts. It would seem as if intended as a punishment of the defendant; an amount that would not have been given against a natural person, and it satisfies the mind that the jury were unduly influenced by some extrinsic and unknown cause, or by passion or prejudice against the defendant. In either case the verdict should not be allowed to stand.

For these reasons the verdict should be set aside, and a new trial granted.

Present—Boardman and James, JJ.

Judgment reversed, and new trial ordered on payment by defendant of costs of Circuit.

*

 See Higgins v. The Watervliet Co., 46 N. Y., 23; Jackson v. Seventh Av. Co., 47 id., 274 ; Cosgrove v. Ogden, 49 id., 255.