Opinion
Argued March 28, 1901
Decided April 4, 1901
Henry Bacon and Joseph Merritt for appellants. John W. Lyon for respondent.
The record presented upon this appeal renders it unnecessary to review the history of the protracted litigation which has resulted in five trials and as many appeals. It is evident that the action was commenced and first tried upon the theory that the plaintiff was wrongfully ejected from one of the trains of the railroad company represented by the defendants as receivers, and claimed to be entitled to recover not merely the damages for the breach of the contract of carriage, but compensatory damages predicated upon the alleged indignity and inconvenience to which the plaintiff claimed to have been subjected. Without following in detail the evolution from this theory to the one adopted upon the last trial, it is sufficient to say that as the case now stands it presents simply the question of damages for breach of the contract of carriage which existed between the plaintiff and the New York, Lake Erie and Western Railroad Company. The case was submitted to the jury upon a charge entirely consistent with this theory. The plaintiff recovered a verdict for two hundred dollars. Upon a motion by the defendants to set aside this verdict as excessive, that relief was granted, unless the plaintiff should stipulate to reduce the recovery to fifty dollars, in which event the motion was denied. Such a stipulation was made by the plaintiff and the judgment entered thereon was unanimously affirmed by the Appellate Division.
Under these circumstances, and in the absence of good exceptions to the reception or exclusion of evidence, nothing survives the unanimous affirmance, except the questions which arise upon the charge to the jury. The defendants excepted to the suggestion of the trial judge in his charge to the jury that "if there had been any circumstance of unnecessary humiliation or indignity, it would be an item of damage." We do not think that that this furnished good ground for exception. The statement referred to must be read in connection with the context of the charge. The learned trial justice seems to have used this expression for the purpose of differentiating cases of the character alluded to from the case at bar. The concluding portion of the sentence, a part of which has been quoted, contains these words: "But I do not see where there was anything in the act of the conductor other than that required of him by the rules of the company and his performance of his duty." And just before this the justice had said: "The conductor stopped his train in the Port Jervis yard and allowed the plaintiff to get off. He did not take hold of him; he did not use any force, and I do not understand that he was subjected to any humiliation or indignity."
The only remaining question arises upon defendants' exception to the court's refusal to charge "that the plaintiff in this case is limited, if they find that there was such a contract, to the cost of procuring transportation from Port Jervis to Sparrowbush." This request was too general in its terms. It may have referred to transportation by railroad or by other means; we are not advised which. As this suggestion disposes of the exception, it is not necessary to discuss other grounds of alleged insufficiency.
None of the exceptions to rulings on the admission or exclusion of evidence are discussed by the learned counsel for the appellants; nor are any of them sufficient to require or justify a reversal of the judgment herein.
The judgment should be affirmed, with costs.
PARKER, Ch. J., GRAY, O'BRIEN, HAIGHT and LANDON, JJ., concur; CULLEN, J., not sitting.
Judgment affirmed.