Miller v. King , 84 Hun 308 ( 1895 )

PRATT, J.

This is an appeal from a judgment entered upon a verdict, and from an order denying á motion for a new trial. The suit was brought for an unlawful ejection of the plaintiff from the car of the defendants, the plaintiff being a passenger.

The first objection made by the defendants is that plaintiff was permitted to amend his complaint upon the trial. This was not error, as the cause of action was not changed, and the defendants were not surprised or prejudiced thereby.

Prior to purchasing a ticket, the plaintiff had been told by the ticket agent that the train stopped at a place upon the line called “Sparrowbush,” where he desired to get off; and he accordingly bought a ticket for that place, and took his seat in the car, where, soon after the train started, the conductor came, and examined and punched the ticket, and returned it, and gave, him no notice that the train did not stop at the point of destination expressed upon the ticket. Before arriving, however, at this point, the train stopped at a terminal (Port Jervis) of the divisions of defendants’ line, where a change of conductors took place. The train proceeded, and soon after it started the new conductor came in the car, and took up plaintiff’s ticket, and informed him that the train did not stop at said Sparrowbush, and that he must get off the train at once. We think that the declarations of the ticket agent were not only competent evidence, having been made in the line of his duty, but that the defendants are bound by them. Nelson v. Railroad Co., 7 Hun, 140; Curtis v. Railroad, 49 Barb. 148. The declarations of the ticket agent formed a part of the contract. He was there to sell tickets and give information, and he must be presumed to be clothed with all the power necessary to perform the functions of his office.

As to the ejection of the plaintiff from the car, it was not essential he should have been violently assaulted, to warrant a recovery. The conductor had charge of the car, and had the physical means at hand to eject him; and stopping the train and ordering him to get off was an ejection, in the eye of the law.

We see no answer to the claim that there was a plain breach of contract, of which the ticket was evidence. The defendants did not carry him as far as Sparrowbush, but, without any excuse whatever, put him. off of the car while his contract was not completed. It would have taken no longer to stop the train at Sparrowbush than it did where plaintiff was ejected. No rule was offered in evidence to show that, when a person holds a ticket to a place where a train does not stop, he can be put off at discretion at any point before arrival at the point of destination. Under all the circumstances, the conductor had no right to eject the plaintiff, and the same was unlawful (Elliott v. Railroad Co., 53 Hun, 78, 6 N. Y. Supp. 363; Martin v. Railroad Co., 1 N. Y. St. Rep. 738; Hayes v. Railroad Co., 20 Wkly. Dig. 237); and the plaintiff is entitled to damages for the indignity and humiliation suffered thereby (Sedg. Dam., 8th Ed., § 865; Hamilton v. Railroad Co., 53 N. Y. 25).

After a careful examination of the record, we find no exception pointing to error sufficient to warrant us in disturbing the judgment. The damages are not excessive. Judgment affirmed, with costs. All concur.