Harrison v. Pennsylvania R.

118 N.Y.S. 1022

• Court: New York County Court, Cattaraugus County
• Decided: October 21, 1909
• Status: Published

Opinion

THRASHER, J.

On these facts the plaintiff was entitled to recover as for breach of a contract to carry him out and back. He would have no cause of action for assault and battery, and the action was not tried on that theory. It was expressly stipulated at the beginning of the trial, whatever question might arise upon the pleadings, that the cause of action was solely, for breach of the defendant’s contract. Neither the conductor nor the railroad company would be liable as for a tortious act on the part of the conductor. The ticket presented to the conductor was upon its face void for the purpose for which it was tendered, and the conductor under the rules governing him was compelled to refuse it. There can be no question predicated upon the negligence of the passenger because the question of his negligence has been determined, and with evidence to support that determination, in his favor. Monnier v. N. Y. C., etc., R. R., 175 N. Y. 281, 67 N. E. 569, 62 L. R. A. 357, 96 Am. St. Rep. 619, and cases therein cited.

The only other question left is the question of damages, it being insisted on the part of the defendant that the damages are excessive, and that there is no evidence to support the verdict of $25. Upon that point I think the judgment cannot be reversed. The regular fare from Arcade to Delevan was but a few cents, but the plaintiff is not limited in his recovery to such damages. The jury are authorized to award damages, if they see fit, for humiliation and injury to the feelings of the passenger. Such are elements of actual damages which may arise from a sense of outraged rights, although the ejection was effected as a result of the mutual mistake of the conductor and the passenger. It was a breach of contract for which the defendant was responsible, though the conductor was acting within his right in ejecting the passenger. In the case of Miller v. King, which seems to have had a hard struggle and with various results in the Supreme Court and Court of Appeals, the conclusion seems finally to have been reached that these elements of humiliation and indignity are elements of compensatory damages to be considered and passed upon by the jury. See Miller v. King, 21 App. Div. 192, 57 N. Y. Supp. 534; Id., 32 App. Div. 389, 53 N. Y. Supp. 123; Id., 40 App. Div. 618, 58 N. Y. Supp. 1145, affirmed 166 N. Y. 394, 59 N. E. 1114; Gillespie v. Brooklyn Heights R. R., 178 N. Y. 347, 70 N. E. 857, 66 L. R. A. 618, 102 Am. St. Rep. 503.

The distinction is plain between this case brought purely for compensatory damages for breach of contract, and those cases which are brought for assault and battery for the wrongful acts of the conductor in ejecting the passenger. The jury having determined that the plaintiff’s damages are $25, I see no reason to disturb the verdict.

The judgment should be affirmed.