Hamilton v. Third-Avenue Railroad

By the Court.

The defendant, by omitting to move for the direction of a verdict, and by going to the jury without objection, conceded that the case presented a sufficient conflict of evidence to authorize its submission to the jury. Having voluntarily taken the chance of a favorable verdict at their hands, which would have concluded the plaintiff upon the facts, we must hold, upon the authority of Rowe v. Stevens, recently decided by this court, and reported in 12 Abb. Pr. N. S., 339, that the defendant cannot be permitted to complain of an adverse verdict by arguing that the case presented no evidence to be submitted to the jury, or at least presented such a preponderance of evidence on defendant’s side as to admit of no other verdict except- one in defendant’s favor.

Allowing, at the commencement of the trial, the amount claimed in the complaint, to be increased from

The detailed statements made by the court, in charging the jury, of other similar cases and of the action of the courts therein, and the remark to plaintiff’s counsel in reply to said counsel’s announcement, that he had no exceptions to take, involve no error, but present mere questions of propriety. These are not reviewable on a bill of exceptions, and can only be considered on a motion for a new trial, if assigned as a specific ground for the granting of a new trial, for the reason, that the jury may possibly have been influenced thereby. Not having been thus urged, we must disregard them on appeal.

Defendant’s exceptions to the rulings of the court below in admitting certain evidence, and to the refusal of the court to re-instruct the jury, after their retirement, under an elaborate charge covering the point respecting which additional information was sought, are clearly untenable.

On the trial defendants’ superintendent testified that “if a passenger leaves one car, and gets on another, he must either pay his fare or produce a transfer. If he does neither, the instructions of the company are, to put him off, using as little force as may be necessary. The only guide to the conductor is the fare or a transfer.” Upon this testimony the court was justified in charging, that putting a passenger off from a car in case of refusal to pay fare is within the line of the duty and employment of defendant’s conductors. And the jury having by their verdict adopted plaintiff’s version

The remaining question, therefore, is, to what extent the law will hold the defendant liable. This is a grave and most important question. Upon this point the jury were instructed that, in case they found for the plaintiff, they might assess exemplary as well as compensatory damages. The latter were held to be such as would compensate the plaintiff for the injuries actually sustained, including his pain and anguish of mind, and body. The former were defined as damages which are given as an example, by way of punishment, to prevent a repetition of the wrongful act complained of, and they were described as something in the character of a punishment by the people, with the difference, however, that the person injured is the one that, recovers the damages, instead of the people by fine or imprisonment. At the same time the jury were severely cautioned against rendering a verdict for an excessive amount. They were instructed that the case is not one calling for severe punishment; that if they came to the conclusion, that they, must find damages for the plaintiff, and that they must be exemplary as well as compensatory damages, they should consider the char

Now, in Caldwell v. New Jersey Steamboat Co. ( 47 N. Y., 296 ), the present court of appeals fully indorsed the principle that in any case, where exemplary damages may be recoverable against the servant, they should be allowed against the master, if it appears that he had reasonable notice of the negligent habits of the servant, or if he left the servant without control or supervision in the work. In addition, it was distinctly held,

That the case at bar is one of that character, seems to be clearly apparent from the decision of the supreme judicial court of Maine, in Goddard v. Grand Trunk Railway, reported as a leading case upon the points involved, in the tenth volume of the new series of the American Law Register. Justice Walton, in delivering the opinion of the court in that case in favor of sustaining a verdict of four thousand eight hundred and fifty dollars, discusses at length the question of the liability of corporations as common carriers of passengers, for the unlawful acts of their employees committed upon such passengers, to whom the said corporations, as such carriers, owe the legal duty of exercising the highest degree of care that human judgment and foresight are capable of, to make the journey safe. He then gives an interesting review of the origin, growth and application of the doctrine of exemplary damages, and points out that" the said doctrine is even more beneficial in point of public interest in its application to corporations than in its application to natural persons.

His reasoning upon this point commends itself so forcibly to the intellect, and it is so fully sustained by the numerous authorities cited in its support, that further elaboration of the subject here would be a work of supererogation. A simple reference to it is amply sufficient.

There being no error in the proceedings below, the judgment and order appealed from must be severally affirmed, with costs.

Curtis, J. concurred.