LAUGHLIN, J.:

The plaintiff was a passenger on one of the defendant's cars on its Salina street line, going southerly, on the afternoon of March 4, 1899. After paying his fare, the plaintiff requested of the conductor a transfer to the West Genesee street line. It was then about half-past three o'clock in the afternoon. Under the defendant's rules and regulations, it was the duty of the conductor to indicate upon the transfer check, by punch marks, that it had been punched at three-forty P.M., but by mistake he punched two-forty P.M. instead, and delivered it to the plaintiff, who, without discovering the mistake, alighted at the junction, and within five minutes thereafter boarded the first car passing for which the transfer was intended. After riding a short distance in this car, the plaintiff presented the transfer to the conductor, who declined to accept it on the ground that it appeared to have been issued an hour before. The plaintiff informed the conductor that he had received the transfer within five minutes. The following condition was printed upon the face of the transfer: "Good only at transfer junction — on first connecting car, after time canceled on the Line punched, subject to Rules of this Company."

The conductor stated that he was not at liberty, under the rules of the company, to accept the transfer, and the plaintiff testified that he understood that such was the fact. The rules of the company introduced in evidence required the conductors to honor transfers when in doubt as to whether the time for using the transfer has expired, but when positive that the transfer has expired, to decline it. No rule applicable to a case where the conductor giving the transfer punches it erroneously seems to have been made for the guidance of the conductors to whom the transfers are presented.

The plaintiff had sufficient money to pay his fare again, but declined to do so on the ground that he had already paid it. The conductor then said that the plaintiff must either pay fare or get off the car. On the plaintiff declining to do either the conductor remarked: "I presume you picked up the transfer on the street," to which the plaintiff replied, "I want you to understand, sir, I am not picking up transfers on the street; I have got five cents to pay my fare if I wish to do so." After the conductor again said to the plaintiff twice, "You must pay your fare or get off of the car," the plaintiff inquired: "Do you say for me to get off of this car?" to which the conductor responded, "That is my orders." The plaintiff a second time asked, "Do you say for me to get off of this car?" and the conductor replied, "Yes, get off of this car or pay your fare," and the plaintiff said, "I shall not pay my fare again." The conductor then said to the plaintiff, "Get off of the car," and stopped the car in the middle of a block where the mud was from three to five inches deep, whereupon the plaintiff alighted from the car.

These facts were testified to by the plaintiff and not contradicted, although the conductor who gave the transfer and the conductor to whom it was presented were sworn as witnesses.

The plaintiff did not examine the transfer, but he testified that he could not understand the punch marks or figures, even when explained by the conductor who refused to receive it.

The court instructed the jury, in effect, that the plaintiff was entitled to continue his journey on this car without paying additional fare, and that for his wrongful ejectment the defendant was liable. The defendant excepted, and, contending that the company is liable only on contract, challenges the correctness of this charge.

The plaintiff had received the transfer from the conductor of the other car only a few minutes before, and he took the first car on which the transfer, if properly punched, would have entitled him to ride. It is not seriously contended that the plaintiff was negligent in not discovering the error of the conductor in punching the transfer, and it could not be said as matter of law, on these facts, that he should have discovered such error. ( Isaacson v. N.Y.C. H.R.R.R. Co., 94 N.Y. 278.)

It may be assumed, the case having been tried on that theory by both parties, although it was not specifically shown, that the defendant owned or operated the line to which the conductor gave the transfer. The passenger had a legal right, upon paying his fare, to a transfer that would entitle him to ride on the car from which he was ejected.

Street railroad companies should be permitted to make and enforce all reasonable rules, with respect to the use of transfers, that may be necessary to protect them against imposition and are consistent with the rights of the public. The rule limiting the use of the transfer to the next car is proper if there be room on such car for the passenger to ride with reasonable comfort and safety. The rule with respect to the punching of transfers is reasonable if due precautions be taken to insure its observance and application in such a manner as to protect a passenger under circumstances such as are disclosed by this record. To hold that the plaintiff's only remedy is an action for breach of the contract for transportation might encourage the employment of negligent or incompetent conductors, to the serious annoyance and inconvenience of the traveling public, and would not afford passengers reasonable protection or security in their rights.

If the plaintiff entered the car believing that his transfer was valid, and was not negligent in failing to discover that it had been punched erroneously, he was there lawfully and is entitled to recover compensatory damages, including the indignity, the humiliation, and injury to his feelings caused by the remarks of the conductor and his wrongful ejection from the car. ( Muckle v. Rochester Ry. Co., 79 Hun, 32; Ray v. Cortland Homer Traction Co., 19 App. Div. 530; Jenkins v. Brooklyn Heights R.R. Co., 29 id. 8; Wright v. Glens Falls R.R. Co., 24 id. 617; Erie Railroad Co. v. Winter, 143 U.S. 60, 70; Elliott v. N.Y.C. H.R.R.R. Co., 53 Hun, 78; Tarbell v. Northern Cent. Ry. Co., 24 id. 51; Wiggins v. King, 91 id. 340; note, 43 L.R.A. 706.)

Although he left the car by the command of the conductor, who had stopped it for that purpose, without waiting for the application of force, it, nevertheless, constituted an ejectment. ( Miller v. King, 84 Hun, 308; overruled, but not on this question, 21 App. Div. 192; Ray v. Cortland Homer Traction Co., supra; Townsend v. N.Y.C. H.R.R.R. Co., 56 N.Y. 296; 6 T. C. 495.)

The court, after charging that the plaintiff was entitled to recover compensatory damages, including injury to feelings, added that the jury were at liberty, if they saw fit, to award exemplary damages on account of the accusation made by the conductor, evidently referring to the remark hereinbefore quoted, indicating that the plaintiff came into possession of the transfer dishonestly. This was excepted to and the defendant's counsel requested the court to charge that exemplary damages could not be awarded. The court declined to so charge, and the defendant's counsel excepted. There was no evidence that the defendant had been guilty of negligence in employing or retaining the conductor, or showing incompetency or previous misconduct, or that it had in any manner ratified his act.

Exemplary damages are awarded by way of punishment, and to make an example of the defendant for a willful or malicious wrongful act, to prevent a repetition of the wrong by him, or for a wrongful act, though not willful or malicious, yet of such a character as to indicate a reckless disregard of the rights of others. It would not be just to mulct a railroad company in exemplary damages for the first act of misconduct toward passengers by one of its conductors, of previous good character and conduct, and whom it had no reason to believe would be guilty of misconduct. Well-considered precedents preclude the recovery of exemplary damages in such cases, and while public policy requires that the common carrier shall be held liable in compensatory damages for the willful or malicious wrongful acts of its conductors, no public policy demands the extension of the rule to authorize a recovery for exemplary damages when the employer has not been guilty of negligence in employing or retaining the conductor, and has not ratified his wrongful act. ( Cleghorn v. N.Y.C. H.R.R.R. Co., 56 N.Y. 44; Wright v. Glens Falls R.R. Co., supra; Muckle v. Rochester Ry. Co., supra; Fisher v. Met. El. R. Co., 34 Hun, 433; Donivan v. Manhattan Ry. Co., 1 Misc. Rep. 368; Hamilton v. Third Avenue R.R. Co., 53 N.Y. 25; Murphy v. Central Park, etc., R.R. Co., 48 N.Y. Super. Ct. 96; Lake Shore, etc., Railway Co. v. Prentice, 147 U.S. 101.)

The exceptions to the charge and refusal to charge on the question of exemplary damages were well taken and demand a reversal.

The judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred.

Judgment and order reversed and a new trial ordered, with costs to the appellant to abide the event.