On the first .trial of this action the court treated the cause of action as .one to recover damages for a breach of contract of carriage. The plaintiff recovered a verdict of $100. On appeal the judgment was affirmed. (Miller v. King, 84 Hun, 308.) In the opinion then delivered by Mr. Justice Pratt, in which Justices Brown and Dykman concurred, it was held that the conductor had no right to eject the plaintiff, and that his action in doing so was . unlawful, and that the plaintiff was entitled to recover damages for the indignity and humiliation suffered by him. This was a radically different view from that taken by the trial court. Subsequently, on a reargument, the judgment was reversed and a new trial granted, on the ground that the damages were excessive on the theory upon which the trial court submitted the cause to the jury—that of a breach of contract; and it was said that the plaintiff would not be *193permitted to sustain his judgment on a different theory from that upon which it was recovered at the trial. (Miller v. King, 88 Hun, 181.) It will be seen that though the court reversed the judgment, it in no wise retracted its previous ruling that the plaintiff’s ejection was unlawful, and that he was entitled to damages for the indignity and humiliation suffered thereby. On a second trial, the trial court held that the plaintiff had not made out a case of unlawful ejection from the train, and dismissed the complaint* From the judgment entered on that direction this appeal is taken.
The decision of the General Term on the first hearing of the prior appeal, if now followed, requires a reversal of this judgment; but we are not willing to place ■ our disposition of this case on that ground. We do not believe the decision of the General Term that the plaintiff was unlawfully ejected from the train correct. The statement of the plaintiff is substantially that he purchased at the station of Middletown a ticket over the defendants’ railroad to Sparrowbush; that the ticket agent, told him that the .milk train, which was then at Middletown, would stop at Sparrowbush; that on the faith of that assurance he and a friend entered the train and were conveyed to Port Jervis, an intermediate station; that at Port Jervis a new conductor took charge of the train, and just after it had started from the station at that place the conductor, on seeing the tickets of the plaintiff and his friend, told them that the train did not stop at Sparrowbush and that they must get off. The conductor then stopped the train, and the plaintiff and Ms friend alighted. The place at which the train was stopped was in the village of Port Jervis, but a short distance from the station, and no complaint is made that it was not a proper stopping place. The plaintiff and Ms friend thereupon walked from Port Jervis to Sparrowbush, a distance' of some three miles. The day was wet, and the road muddy. It is not disputed that as matter of fact the train was not scheduled to stop at Sparrowbush, nor in its ordinary and proper conduct, according to the rules of the company, would it so stop. The case then presented is simply this: Through the fault of the defendants’ station agent the plaintiff boarded a train which did not stop at the place of his destination. How, what were the defendants to do ? Were they bound to stop the train at all hazards at that place, *194because the station, agent had given the wrong information ? Or , were they not permitted to correct.the blunder of their own servant, remaining of course liable for the' damages occasioned by that blunder, but for such damages only ? We think they had the power ■ to correct their fnistake. If the train which the plaintiff had boarded was to proceed on a different branch or route from that bn, which the place of his destination was situated, it is difficult to perceive how it would be possible for the defendants to carry out their contract with the plaintiff without, violating their contract with .all the other passengers, on the train. In this case the train did pass Sparrowbúsh, but the rules and schedule o.f time of the defendants prescribed that it should pass that place without stopping. A railroad .could not be safely operated in disregard of the schedule time and rnove.ments of its trains. If the defendants, then, were not obliged to ’.stop the-train at Sparrowbush,. what were they to'do with the plaintiff \ Were they to carry him indefinitely ? We think not. The direction .to a passenger to leave a" train because he has gotten "upon the wrong ■ train, ¿ven though the error is caused by the company’s fault, inflicts upon him no indignity or. humiliation. In Lake Shore & Mich. Southern Railway Co. v. Pierce (47 Mich. 277) it was held that where a passenger' had gotten upon the wrong, train through the fault of the defendant’s agent, this did not justify him in remaining .on that train after he was notified- of the error, and that upon his failure to leave the, train, his expulsion therefrom was lawful. Fink v. The Albany & Susquehanna Railroad Co. (4 Lans. 147) would seem to hold substantially the same rule. Of .course, in eor■.recting an error,' .the conypany must use a proper place for it, and do it in a proper manner. . They could' not expel a person mistakenly -on the train, away from a station, or subject him to unnecessary hardships or indignities; but, as already said, there, is nothing of that character in this case. We are of the opinion, therefore,, that ■the.plaintiff failed to establish a tortious ejection, ■
. The complaint and proof, however,, were sufficient to. authorize ■the jury in finding a breach of the defendants’ «contract to carry; 'and the plaintiff was entitled, to recover damages 'for. that breach. ■ We do not think he was necessarily limitbd to' nominal- damages. . Therefore, the trial court was- not justified in dismissing the complaint, unless, the plaintiff expressly disclaimed any desire to go to *195the jury. It is doubtful if a sufficient disclaimer -appears in the record before us ; it is true that on this appeal the plaintiff’s counsel has rather repudiated the idea that this is an action for breach of contract, and insists that it is an action for a tortious ejection. But we think he should not be held to too strict a rule in this respect, for, as a justification of the position he assumed, he relied on a decision of the General Term of this court, a decision- which had not been retracted or overruled. We are of the opinion, therefore, that justice requires that there should be a new trial of this action, and that the cause be submitted to a jury on the question of the breach of the defendants’ contract of carriage, unless the plaintiff declines to take that course.
Judgment and order reversed and a new trial granted, costs to abide the event.
All concurred, except Goodeioh, P. J., who concurred in the result.