Hun.]

cases.

FIFTH DEPARTMENT, JUNE TERM, 1894.

tained by the General Term. (6 T. & C. 495.) And Mr. Justice LEARNED cites in support of his conclusion Hamilton v. Third Ave. R. R. Co. (53 N. Y. 25) in which the opinion was also delivered by Judge GROVER, who in the later case refers to the Hamilton case for the purpose of distinguishing the questions presented in the two Our attention is called to no other case in this State necessarily bearing upon the question. There are elsewhere, however, cases having some relation to it. Amongst 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. R. R. Co. (3 S. C. 580; 16 Am. Rep. 750); Burnham v. G. T. Ry. Co. (63 Me. 298; 18 Am. Rep. 220); L. E. & W. Ry. Co. v. Fix (88 Ind. 381; 45 Am. Rep. 464); Murdock v. B. & A. R. R. Co. (137 Mass. 293; 50 Am. Rep. 307); Head v. Georgia P. Ry. Co. (79 Ga. 358; 11 Am. St. Rep. 434); Kansas City, M. & B. R. R. Co. v. Riley (68 Miss. 765; 24 Am. St. Rep. 309).

And of those tending to hold to the contrary are Yorton v. Milwaukee, Lake Shore & W. Ry. Co. (54 Wis. 234; 41 Am. Rep. 23); Frederick v. M., H. & O. R. R. Co. (37 Mich. 342; 26 Am. Rep. 531); Bradshaw v. S. B. R. R. Co. (135 Mass. 407; 46 Am. Rep. 481).

The latter case and that of Murdock v. B. & A. R. R. 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, while 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 ten 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,

[Vol. 79.

FIFTH DEPARTMENT, JUNE TERM, 1894.

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 of 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 the plaintiff 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.

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. N. Y. C. & H. R. R. R. Co., 56 N. Y. 44; Hendricks v. Sixth Ave. R. R. Co., 12 J. & S. 8; Murphy v. Central P., etc., R. R. Co., 16 id. 96; Fisher v. M. E. R. Co., 34 Hun, 433; Donivan v. M. Ry. Co., 49 N. Y. St. Repr. 722.)

Hun.]

FIFTH DEPARTMENT, JUNE TERM, 1894.

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. Third Ave. R. R. Co., 53 N. Y. 25; Townsend v. N. Y. C. & H. R. R. R. Co., 56 id. 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.

DWIGHT, P. J., LEWIS and HAIGHT, JJ., concurred.

Judgment and order of the Monroe County Court appealed from reversed, and new trial granted, with costs to abide the event.

FREDERICK F. HOYER, Respondent, v. THE VILLAGE OF NORTH TONAWANDA, Appellant.

Duty of trustees of a village in regard to its streets — notice of the defective condition thereof ― negligence— care required of a person driving in a village street.

It is the duty of the trustees of a village, to the public, to exercise care for the protection of those travelling upon the streets of such village, and the fact that such trustees presumed that a street railway company, which was engaged in tearing up the streets under a franchise, would properly guard its work in so far as it was dangerous to the public, does not necessarily excuse such trustees from the reasonable care and vigilance which their duty to the public imposes upon them.

Where the defective condition of a street in a village was not caused by the act of such village through its officers or employees, notice of such defect, express or implied, is requisite to charge the village with negligence in an action brought to recover damages for personal injuries alleged to have been sustained by reason of such defect. When the defective condition of a street is produced by some sudden cause, or by the act of a trespasser, or by some means not anticipated, a reasonable time must elapse in order to raise the implication of notice

FIFTH DEPARTMENT, JUNE TERM, 1894.

[Vol. 79. to the municipal authorities. After the lapse of such time notice can be implied from the fact that the supervision and care of the streets are within the duties which the authorities are required to observe and exercise, and it may be supposed that those charged with such duty have become cognizant of the situation which requires their attention. What the time requisite to charge a municipal corporation with such notice is, depends upon circumstances. Where an excavation in the streets of a village is made pursuant to permission given to a street railway company by the trustees of such village, the village is chargeable with knowledge of what is being done by the company in its streets, where the franchise so granted to it permitted the construction of the railway, and is advised of the necessity of providing some means for warning people to avoid the danger of entering the portions of the street for the time being thus rendered unsafe for travel. Whether such village is chargeable with a want of reasonable diligence in not having provided safeguards for the protection of the public at a certain time and place is a question for the jury to determine in an action brought to recover damages for personal injuries alleged to have been sustained by reason of such excavation.

While a person driving along the street of a village is permitted to assume, if nothing appears to indicate the contrary, that he can safely proceed, he is nevertheless required to exercise care to avoid any danger the existence of which under the circumstances he has any reason to apprehend.

A person driving along the street of a village knew that a railroad company was proceeding with the work of constructing its railway in the streets thereof, but had not been advised that it was engaged in such work at a particular place. He had gone over that street the day before, and it was then in good condition. Held, in an action brought to recover damages for personal injuries sustained by him by reason of the defective condition of the street, that if the evidence on his part tended to prove that no suitable precautionary means were provided to warn persons not to proceed into the place where the accident happened, the jury was justified in finding that the plaintiff was free from contributory negligence.

APPEAL by the defendant, The Village of North Tonawanda, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Niagara on the 27th day of January, 1894, upon the verdict of a jury rendered after a trial at the Niagara Circuit, and also from an order entered in said clerk's office on the 27th day of January, 1894, denying the defendant's motion for a new trial made upon a case containing exceptions.

Root, Orton & Baldwin, for the appellant.

George W. Cothran, for the respondent.

Hun.]

BRADLEY, J.:

FIFTH DEPARTMENT, JUNE TERM, 1894.

In the evening of December 9, 1892, the plaintiff's buggy, in which he was riding on Vandervoort street in the village of North Tonawanda, was overturned, and he was thrown out and injured. He charges that his injury was caused by the negligence of the defendant.

The occasion of the accident was an excavation made in the street by the Tonawanda Street Railroad Company, which was proceeding to construct its road in that street. For that purpose the company on the day of the injury had excavated a place for its location there. The plaintiff, not being aware or advised of the situation, drove into the excavation, causing the injury. It was dark, and the evidence on the part of the plaintiff tends to prove that there were no barriers or lights, other than the electric lights at some distance from the place in question, to warn him of the danger.

Upon the subject of lights there was a conflict in the evidence. Witnesses on the part of the defendant testified that there was a red light at the intersection of Thompson and Vandervoort streets, where the plaintiff turned from the former into the latter, and another south on Vandervoort street. The question whether or not such lights were there was one of fact for the jury.

The village authorities had in the spring before granted to the company the franchise to construct its railroad in various streets of the village, including the street in question, and thereafter the company had been engaged in the work of constructing its road. But nothing for that purpose had before that day been done in that particular locality. The jury were by the evidence permitted to find that the condition in which it was left at the close of that day was dangerous to the public travel, and that no suitable guards or means were provided to warn persons driving in the street of the danger.

It is, however, urged that notice of the unsafe condition of the street at the place in question was not imputable to the defendant, and for that reason the exception to the denial of the motion for a nonsuit was well taken.

The trustees knew that the company had been during the summer engaged in tearing up streets in places preparatory to the construction of its railroad; and in the grant of the permit to construct it HUN-VOL. LXXIX.

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