Gillespie v. Brooklyn Heights R.

• Decision Date: 26 April 1904
• Citation: 178 N.Y. 347,70 N.E. 857
• Parties: GILLESPIE v. BROOKLYN HEIGHTS R.
• Court: New York Court of Appeals Court of Appeals

178 N.Y. 347

70 N.E. 857

GILLESPIE

v.BROOKLYN HEIGHTS R.

Court of Appeals of New York.

April 26, 1904.

Appeal from Supreme Court, Appellate Division, Second Department.

Action by Elizabeth S. Gillespie against the Brooklyn Heights Railroad Company. From a judgment of the Appellate Division (81 N. Y. Supp. 1127) affirming a judgment for defendant, plaintiff appeals. Reversed.

On the 26th of December, 1900, the plaintiff, who was a practicing physician, boarded one of the defendant's cars at the corner of Nostrand avenue and Fulton street at about 10:20 in the morning. As to what thereafter occurred the plaintiff testified: ‘I know who the conductor was on that car; Conductor Wright. He came to collect my fare just a few minutes after I got on the car. I gave him a twenty-five cent piece, and said to him, ‘A transfer, please, to Reid avenue.’ Just at that moment a lady on the opposite side called to him. He crossed, and he went to punch a transfer, and I though it was mine, and I said to him, ‘Please don't do that until I speak with you.’ He paid no attention. After he gave the lady her transfer, I said to him: ‘Won't you please come here? I wish to speak to you about the transfer?’ So he came across very growly and roughly, and wanted to know, ‘What is the matter with vez?’ I said, ‘Won't you please tell me-I don't know much about those streets away up here-which would be the nearest, Reid avenue or Sumner avenue, to Stuyvesant avenue.’ He said, ‘We don't have any Reid avenue transfers; we transfer at Sumner avenue.’ ‘Well,’ I said then, ‘I thank you; please give me a transfer for Sumner avenue and my change;’ and he actually hollowed at me, ‘What change?’ I said, ‘The money I gave you, twenty-five cents; and I want my change;’ and he put his hands in his pocket, and he pulled out a whole handful of pennies or nickels. He said, ‘Do you see any twenty-five cents there?’ He said: ‘It is the likes of ye. You are a deadbeat. You are a swindler. I know the likes of ye.’ He said, ‘You didn't give me twenty-five cents.’ The lady that sat next to me set the conductor right. She said to him, ‘I am sure, sir, she gave you a quarter of a dollar; I saw her give it to you;’ and he turned. ‘Well, perhaps you are a friend of hers.’ Then he said that deadbeats like me, he knew that every day they were traveling on the cars; he knew the swindlers and the deadbeats. ‘But you can't deadbeat me. I know you. You belong to them;’ and he said then, ‘Why, only here the other day I had just such a woman as you trying to deadbeat beat me out of money;’ and I said, ‘I want my change, and I don't want such insolence.’ Then he walked back, and two gentlemen got on the car, and he called the attention of those gentlemen to me, and said, pointing to me-I went to the door, and he was telling them how I was trying to swindle him. ‘But,’ he said, ‘I know them. They are all deadbeats. She can't beat me.’ I said to him, ‘Look here, sir; I know President Rossiter, siter, and I shall make a complaint of you;’ and he came over close to me. He said, ‘Ah, the likes of you,’ he said. ‘You couldn't make a complaint to President Rossiter,’ he said. ‘I have been on this road too long for you to have any authority with him; no, no.’ ‘Well,’ I said, ‘I shall tell him,’ and I went back and sat down.' The plaintiff further and in substance testified that she noticed that there was a smell of whisky in the conductor's ductor's breath; that he did not give her her change at all; that he gave her no transfer; that he said nothing except merely that he had nothing to do with her, and that ‘I was a deadbeat and a swindler.’ She then testified as to her efforts to see President Rossiter; that when she reached his office she was about four miles from home; that she walked that distance because she had no money with which to pay her fare; that she became sick, was confined to the bed for two days, and as to its effect upon her business. All this evidence was undisputed. At the close of the plaintiff's case the defendant made a motion for a dismissal of the complaint, and the court said: ‘The allegation of the complaint is that it was done maliciously by the servant of the corporation, so that takes it out of the action against the corporation anyway, so far as the slander part of it is concerned. The only question now is whether she is entitled to recover the amount that she paid for the fare.’ The plaintiff claimed she was entitled to recover more. The court thereupon said: ‘On the testimony as it stands they [the company] did receive it. It is uncontradicted now that they did receive it. I think I will direct a verdict for the twenty cents if you [referring to the defendant's counsel] want to.’ The plaintiff excepted to the direction of a verdict, and asked to go to the jury ‘upon the facts in the case, upon the wrong and the wrongful detention of this woman's money, and the suffering occasioned by it,’ and the court directed a verdict for the plaintiff for 20 cents, and held that that was the extent to which the railroad company was liable, and that ‘the other damages, if any have grown out of it, are not the proximate result of the act of the conductor.’ The verdict was directed with the consent of the defendant's counsel.

Parker, C. J., and Gray and O'Brien, JJ., dissenting.Melville J. France and James D. Bell, for appellant.

I. R. Oeland and George D. Yeomans, for respondent.

MARTIN, J. (after stating the facts).

The principal, and practically the only, question involved upon this appeal is whether the plaintiff was entitled to recover for the tort or breach of contract proved an amount in excess of the sum she actually overpaid the defendant's conductor. Confessedly, the plaintiff was a passenger on the defendant's car, and entitled to be carried over its road. That at the time of this occurrence the relation of carrier and passenger existed between the defendant and the plaintiff is not denied. The latter gave the conductor a quarter of a dollar from which to take her fare. He received it, but did not return her the 20 cents change to which she was entitled. She subsequently asked him for it, when he, in an abusive and impudent manner, not only refused to pay it, but also grossly insulted hre by calling her a deadbeat and a swindler, and by the use of other insulting and improper language, even after a fellow passenger had informed him that she had given him the amount she claimed. In this case there was obviously a breach of the defendant's contract and of its duty to its passenger. It was its duty to receive any coin or bill not in excess of the amount permitted to be tendered for fare on its car under its rules and regulations, and to make the change, and return it to the plaintiff, or person tendering the money for the fare. That certainly must have been a part of the contract entered into by the defendant, and the refusal of the conductor to return her change was a tortious act upon his part, performed by him while acting in the line of his duty as the defendant's servant. To that extent, at least, the contract between the parties was broken, and as an incident to and accompanying that breach the language and tortious acts complained of were employed and performed by the defendant's conductor.

This brings us to the precise question whether, in an action to recover damages for the breach of that contract and for the tortious acts of the conductor in relation thereto, the conduct of such employé and his treatment of the plaintiff at the time may be considered upon the question of damages, and in aggravation thereof. That the plaintiff suffered insult and indignity at the hands of the conductor, and was treated disrespectfully and indecorously by him under such circumstances as to occasion mental suffering, humiliation, wounded pride, and disgrace, there can be little doubt. At least the jury might have so found upon the evidence before them. This question was treated on the argument as a novel one, and as requiring the establishment of a new principle of law to enable the plaintiff to recover damages in excess of the amount retained by the defendant's conductor which rightfully belonged to her. In that we think counsel were at fault, and that the right to such a recovery is established beyond question, as will be seen by the authorities which we shall presently consider. The consideration of this general question involves two propositions. The first relates to the duties of carriers to their passengers, and the second to the rule of damages when there has been a breach of such duty. The relation between a carrier and its passenger is more than a mere contract relation, as it may exist in the absence of any contract whatsoever. Any person rightfully on the cars of a railroad company is entitled to protection by the carrier, and any breach of its duty in that respect is in the nature of a tort, and recovery may be had in an action of tort as well as for a breach of the contract. 2 Sedgwick on Damages, 637. In considering the duties of carriers to their passengers, we find that the elementary writers have often discussed this question, and that it has frequently been the subject of judicial consideration. Thus, in Booth on Street Railways, § 372, it is said: ‘The contract on the part of the company is to safely carry its passengers, and to compensate them for all unlawful and tortious injuries inflicted by its servants. It calls for safe carriage, for safe and respectful treatment from the carrier's servants, and for immunity from assaults by them, or by other persons, if it can be prevented by them. No matter what the motive is which incites the servant of the carrier to commit an improper act towards the passenger during the existence of the relation, the master is liable for the act and its natural and legitimate consequences. Hence it is responsible for the insulting conduct of its servants, which stops short of actual violence.’...