On the 11th of January; 1871,.the plaintiff, having purchased *a ticket for defendant’s road, sought to enter a car, and was notified by an employee of the company that the car he was about to enter had been set apart for ladies, and gentlemen accompanying ladies, and directed to a forward car. This employee had been stationed at the train by a person in charge there, directed to prevent gentlemen unaccompanied by ladies from entering said car.
On receiving this notice and direction plaintiff got upon the platform of a car next in rear of the ladies’ car, looked in a moment, then turned and entered said ladies’ car; the employee arrested his progress and removed .him from the car by force.
When the plaintiff rested his case a motion was made for a non-suit, on the ground that the brakeman was not acting within the scope of his employment in removing plaintiff, and, therefore, defendant was not liable for his act. This motion was denied and defendant excepted.
That a master is not liable for the wrongful acts of his servant, unless done in his service and within the scope of his employment, will not be disputed. If the employee who removed the plaintiff is to be regarded as a brakeman, unauthorized to perform any duties *438other than such as pertained to that office, and volunteered the act in question without other authority or direction, then the defendant was not liable" in this case. But as brakeman he was an employee of the company, subject to its authority and the direction of its officers, and as such employee he was directed, by the person in charge, to see that gentlemen without ladies did not enter that car, and it was in the performance of that service he did the act complained of. It is true he was not ordered to remove persons from the car; his orders were to notify gentlemen not in charge of ladies that such car was reserved, and direct them to cars forward; so that in removing plaintiff he clearly exceeded the orders given him. But this fact the 'plaintiff could not know; as between him and the company it was enough that the act was done in the prosecution of his master’s business, and if he deviated from or exceeded his instructions that fact did not excuse the master from responsibility. The order to the brakeman, and his performance, warrants the conclusion, even as a matter of law, that he was acting within the scope of the employment he was then set to perform, if persons disregarded his directions, and persisted in entering that car. The defendant had the right to set apart a car for lady passengers, and exclude other persons from it; if other persons, after notice, persisted in entering it the defendant had the right to enforce their removal, using no more force than necessary for that purpose. The brakeman did no more than the master had the light to do under the circumstances, and the presumption is that in doing it he was acting within the scope of his then employment. See Higgins v. Watervliet Turnpike Co., 46 N. Y. 23; Jackson v. Second Av. R. R. Co., 47 id. 274; Cosgrove v. Ogden, 49 id. 225. Therefore, the motion for a nonsuit was properly denied.
There are several other exceptions in the case, but none which I deem it necessary to discuss.
The more important question presented by the case arises on the motion for a new trial, on the ground of excessive damages. It is certain there was no malice in this case, either on the part of the defendant, or the servant who did the act complained of; it was simply the exercise of more force than necessary in the accomplishment of a legal act. It was not a case, therefore, calling for punitive damages, but simply one for compensation for- the pain, suffering and loss of time occasioned by the act. Upon this question no evidence was given by the plaintiff other than his own; no medical *439attendant to show Ms condition was called, nor any medical expert to establish that the sickness, pains and sufferings, stated by himself, were the result, natural or probable, of the force used; while a medical expert was called on the part of the defense, who testified that the sickness and pains described by plaintiff were not the natural or probable result or effect of the force used upon him, and attributed the sickness and pains to causes pertaining to the plaintiff.
The plaintiff’s statements of his injuries, in their nature and duration, are inconsistent with his condition and acts after the. occurrence. His whole statement, as to the nature, degree and extent of his injuries, is improbable from the force used and the manner of its use upon him, and leaves the impression that his relation of it is highly colored.
In actions other than those upon contracts, sounding in damages, it is strictly within the province of the jury to estimate the loss suffered, and courts are reluctant to interfere, and will not interfere unless there is manifest abuse, or the sum is so large as to evidence that the jury were affected by passion, prejudice, or some undue influence.
In this action the sum is so large as to demonstrate such to be the case; S5,000 is a sum entirely beyond what was justified by the facts. It would seem as if intended as a pumshment of the defendant, an amount that would not have been given against a natural person, and satisfies the mind that the jury were unduly influenced by some extrinsic and unknown cause, or by passion or prejudice against the defendant. In either case the verdict should not be allowed to stand.
For this latter reason the verdict should be set aside, and a new trial granted on payment of costs of the circuit.
New trial ordered.