(79 Hun, 32.)

#### MUCKLE v. ROCHESTER RY. CO.

(Supreme Court, General Term, Eifth Department.

June 20, 1894.)

1. Street Railroads—Mistake in Transfer Ticket—Liability of Company.

Where a conductor, by mistake, gives a passenger a transfer which appears on its face to have expired by limitation, and the conductor on the connecting line attempts to eject him, the company is liable.

2. Same—Measure of Damages.

In such a case the passenger is entitled only to compensatory damages, as a master is not liable for exemplary damages for the act of his servant unless he authorized the act, or ratified it

Appeal from Monroe county court.

Action by William H. Muckle against the Rochester Railway Company for personal injuries. From a judgment entered on a verdict in favor of plaintiff, and from an order denying a motion for a new trial, defendant appeals.

Reversed.

Argued before DWIGHT, P. J., and LEWIS, HAIGHT, and BRADLEY, JJ.

Charles J. Bissell, for appellant.

Charles Van Voorhis, for respondent.

BRADLEY, J.

The action is to recover damages for an alleged assault upon the plaintiff while a passenger in one of the defendant’s *733cars. In the afternoon of March 17, 1892, the plaintiff took passage upon an Exchange street car, going to what is known as the “Four Corners,” where he desired to take a West avenue car; paid his fare; asked for and received a transfer for that car. The plaintiff, at the Corners, hoarded a West avenue car, and when he presented the transfer ticket to the conductor the latter refused to receive it, for the reason that it was past the time within which it was available, and asked the plaintiff to pay his fare; and on his refusal to do so or leave the car the conductor took hold of . the plaintiff, to remove him from it, but before it. was accomplished he paid his fare, and was permitted to continue in his seat.

The payment by the plaintiff of a single fare of five cents entitled him to one continuous passage from any one to any other point of the railroad operated by the defendant. Laws 1890, c. 565, § 101. The right of the plaintiff, on the payment made by him of his fare, was to take the West avenue car to the place of his destination. To accomplish the purpose of indicating such right of passage, to be observed by the several conductors of the cars upon which continuous passage should be desired by the passengers, the company adopted regulations to the effect that a transfer ticket should be given to them by the conductor of the car upon which the passage was taken, and that the transfer ticket should be so punched as to indicate that the passenger has 10 minutes’ time at the place of connection within which to take the other car for which the transfer is given, and to be further punched to indicate the connecting line on which the passenger desires to proceed. Such a ticket had been provided, and was in use at the time in question. The conductor gave the plaintiff a transfer ticket which purported to be good until 5:40 p. m. It was more than an hour after that time when he boarded the West avenue car; and because the time for its use appeared, by the ticket, to have expired, the conductor of the latter car refused to permit him to ride without payment of his-fare. There is some conflict in the evidence as to the time the plaintiff got onto the Exchange street car, but the jury were permitted to find that it was then 6:40 p. m.; and, as the passage of the car to the Four Comers occupied only two" minutes, it must be assumed that the difficulty arose from the mistake of the conductor in attempting to indicate by his punch mark the time within which the plaintiff could continue his passage on the West avenue car. The conductor thus made it appear that the plaintiff was not entitled to do it upon such transfer slip; and, in the observance of his instructions, it was the duty of the conductor to whom it was offered to refuse to accept it, and to require the plaintiff to pay his fare. The question is whether or not the plaintiff is entitled to the relief which he seeks by this action. While it is conceded he may have his remedy for breach of the contract, it is urged on the part of the defendant that he has no right of action for the cause alleged, because the defendant had provided suitable regulations for the management of the business of conveying passengers, and the transfer of them from one to another line of its road, so as to give to them *734the continuous passage on payment of a single fare as provided by the statute. In view of the fact, as the evidence tends to prove, that cars on all the lines of the road operated by the defendant in the city of Rochester pass each way any given point within every five to eight minutes, the system provided for transfer slips and their use will work effectually to accomplish the purpose, provided no mistakes or accidents occur to defeat its operation; and the fact that unforeseen causes may sometimes intervene, to produce inconvenience, does not necessarily render the regulations unreasonable or unsuitable for the purposes in view. However perfect they may be in any case, there is a possibility of interruption of their due execution by inadvertence, or other incidental cause. For such causes, provisions should, so far as practicable, be made, if they do not exist. There is a reason for limiting the time within which a transfer ticket may be effectually used for the purpose of a continuous passage, in the fact that otherwise the opportunity might be taken to use or permit it to be used for other than the contemplated continuous passage, to the prejudice of the company. Regulations are essential to the proper conduct and management of the business of any railroad corporation; and, upon a given state of facts, the question whether or not they are reasonable is one of law, to be determined by the court. Hibbard v. Railroad Co., 15 N. Y. 455; Vedder v. Fellows, 20 N. Y. 126; Railroad Co. v. Page, 22 Barb. 130; Railroad Co. v. Whittemore, 43 111. 420; Railroad Co. v. Rhodes, 25 Fla. 40, 5 South. 633; Railway Co. v. Lyon, 123 Pa. St. 140, 16 Atl. 607. In some of the states, it is held to be a question of fact, or a mixed question of law and fact, to be submitted to the jury, with proper instructions. It is so held in State v. Overton, 24 N. J. Law, 435; Day v. Owen, 5 Mich. 520; Bass v. Railway Co., 36 Wis. 450. There may be cases where the disposition of the controversy about the reasonableness of certain regulations is dependent upon the determination of controverted questions of fact. It may be seen that then such facts are for the jury. But then the view of the facts which will render the regulations reasonable is a question of law, for the court.

It appears that the system adopted by the defendant for the practical operation of its road is such as to give the requisite frequency to the running of its cars, on all parts of its lines, for the supply to its patrons of continuous passage for single fares, by the observance and execution of the regulations in question; and, in view of the facts as they appear by the record, the conclusion is required that such regulations of the defendant are reasonable. The failure of the plaintiff to obtain the continuous passage to which he was entitled on the payment of his fare did not arise from any defect in those regulations, but solely from the mistake of the conductor in the execution of them. The question is therefore presented whether the defendant is liable in tort for the act of the conductor of the West avenue car, who was justified by such regulations in refusing to permit the plaintiff to ride in the car without payment of his fare. This question has seemingly been one of diverse *735views of judicial writers. In Townsend v. Railroad Co., 56 E. Y. 295, the plaintiff, having a ticket for passage from Sing Sing to Rhineback, took a train which went no further than Poughkeepsie. Before the train reached there, the ticket was taken up by the conductor, and no evidence of his right to proceed further on the defendant’s road was given to him. He took passage on the next train, to complete his trip to Rhineback; and on his refusal to pay fare, for the reasons before mentioned, and which he stated to the conductor, the latter forcibly ejected him from the train. The view's of Judge Grover, expressed in his opinion, were to the effect that the defendant was not liable in tort for the consequences of the wrongful act of the first conductor in taking up the plaintiff’s ticket. The court did not, however, necessarily determine that question, as there was another ground for the reversal of the court below. The plaintiff recovered on the retrial, and the recovery was sustained by the general term. 6 Thomp. & G. 495. And Mr. Justice Learned cites, in support of his conclusion, Hamilton v. Railroad Co., 53 N. Y. 25, in which the opinion was also delivered by Judge Grover, who, in the latter case, refers to the Hamilton Case for the purpose of distinguishing the questions presented in the two cases. Our attention is called to no other case in this state necessarily bearing upon the question. There are, however, elsewhere, cases having some relation to it. Among those in which the actions founded upon principle similar to that of the plaintiff’s proposition in the present action have been sustained are the following cases: Palmer v. Railroad Co., 3 S. C. 580; Burnham v. Railway Co., 63 Me. 298; Railway Co. v. Fix, 88 Ind. 381; Murdock v. Railroad Co., 137 Mass. 295; Head v. Railway Co., 79 Ga. 358, 7 S. E. 217; Railroad Co. v. Riley, 68 Miss. 765, 9 South. 443. And of those tending to hold to the contrary are Yorton v. Railway Co., 54 Wis. 234, 11 N. W. 482; Frederick v. Railroad Co., 37 Mich. 342; Bradshaw v. Railroad Co., 135 Mass. 407. The latter case and that of Murdock v. Railroad Co., supra, may be distinguished by the fact that the familiarity of the plaintiff in the Bradshaw Case with the practice of the company, and the checks used by it, was such that, by inspection, he would have observed that he had not received the one suitable to his purpose, w'hile in the other case the plaintiff was assured by the ticket seller that the ticket entitled him to passage to his place of destination. In the present case the plaintiff was advised by the transfer ticket that it permitted him to take a West avenue car, and that he must do so within 10 minutes, but he did not understand what was the meaning of the punch mark which was intended to advise the conductor of that car of the time the transfer slip was issued. It must be assumed, on the evidence, that the plaintiff took the first West avenue car that left the Corners after he reached there, and that he so informed the conductor. The plaintiff was given by the statute the right to a continuous passage to his place of destination, on payment of the single fare, and it cannot be said that it was by any fault or neglect on his part that •the right was denied to him. It is a general rule that a carrier *736of passengers is answerable for all the consequences to a passenger of the willful conduct or negligence of the persons employed by it, in the execution of the duty it has assumed towards him. The defendant had, by its contract with the plaintiff, undertaken, for a consideration paid, to carry him to his place of destination, and pursuant to it he had the right of passage; and, as between him and the defendant, he was at liberty to refuse to repay his fare, and to insist upon having his continuous passage. In violation of that right, the defendant, by its conductor, proceeded to forcibly eject him from the car, in which he was rightfully seated as a passenger. Although the conductor, personally, may have been justified by his instructions to do so, the defendant was put in the wrong by the act of the other conductor, and was no more justified in the attempted act of ejection than it would have been if he had at the time had, and presented, the evidence of his right to remain as a passenger in the car without further payment. It follows, if these views are correct, that the defendant is liable to the plaintiff for the consequences of such violence upon his person as was used by the conductor for the purpose of ejecting him from the car.

The court erred in the refusal to charge, as requested, that the jury could give the plaintiff compensatory damages only, and that, in no view of the evidence, could they award to him punitive damages. This is also a question about which the judicial writers of several of the states disagree with those of others of them. The rule adopted by the courts of this state is such as not to permit the-recovery of exemplary damages against the master for the act or negligence of his servant, unless he has authorized his misconduct, or ratified it, or unless the conduct complained of is that of the servant while he is in the service after his unfitness for it is known to the master. Cleghorn v. Railroad Co., 56 N. Y. 44; Hendricks v. Railroad Co., 44 N. Y. Super. Ct. 8; Murphy v. Railroad Co., 48 N. Y. Super. Ct. 96; Fisher v. Railway Co., 34 Hun, 433; Donivan v. Railway Co. (Com. Pl. N. Y.) 21 N. Y. Supp. 457. And the like' rule is applicable in an action against the master for the act of the servant, where the latter would not be chargeable with punitory damages if he were the party defendant. Hamilton v. Railroad Co., 53 N. Y. 25; Townsend v. Railroad Co., 56 N. Y. 295. It cannot well be claimed that the conductor who sought to eject the plaintiff from the car would be chargeable with punitive damages. He did; what appeared to him to. be his duty, and therefore it may be assumed that he acted in good faith in the matter, and not wantonly. The two cases last above cited are quite applicable to this question in the present case. The judgment and order should be reversed, and a new trial granted; costs to abide the event. All concur.