board of a steamboat is not an unlimited right. But it is subject to such regulations as the proprietors may prescribe, for the due accommodation. of passengers, and for the due arrangement of their business. The proprietors have not only this right, but the further right to consult and provide for their own interests in the management of such boats, as a common incident to their right of property. They are not bound to admit passengers on board, who refuse to obey the reasonable regulations of the boat, or who are guilty of gross and vulgar habits of conduct; or who make disturbances on board; or whose characters are doubtful or dissolute or suspicious; and à fortiori, whose characters are unequivocally bad. Nor are they bound to admit passengers on board, whose object is to interfere with the interest or patronage of the proprietors, so as to make the business less lucrative to them." 1

§ 689. It is the legal duty of the common carrier of passengers to receive and convey all orderly persons applying for a passage; 2 and he cannot bind himself by a valid agreement in contravention of his legal duty in this respect. He stands in a relation to the traveling public quite like an innkeeper.3 He cannot set up as a legal excuse for refusing to receive a passenger, that his line of stages run in connection with another coach which extends the line to another place, and that he has agreed with the proprietors of such other coach, not to receive passengers who come from that place, on certain days, unless they come in his conveyance. If the passenger is a fit person to be admitted, and there is no evidence of a design on his part to injure the carrier's business, he is bound to receive him, notwithstanding his agreement.*

The duty of the carrier of passengers, to receive such as apply for a passage, is qualified and limited by the right which he has to prescribe reasonable regulations for the order and convenience of passengers; in respect to the manner of giving and collecting tickets; for the protection of passengers from the annoyance of a clamorous solicitation by runners and agents of other carriers, hotel or inns; for the prevention of disorderly conduct in and about the places of arrival and departure; and for the protection and peace of his passengers on the journey.5

1 A carrier of passengers may establish on his car or vessel an agency for the delivery of baggage, excluding others desiring to act in the same capacity. Barney v. O., B. & H. S. Co., 67 N. Y., 301.

2 Higgins v. Watervliet T. & R. Co., 46 N. Y., 23.

3 Ante § 520. Ante § § 471, 472.

4 Bennett v. Dutton, 10 N. H., 481; N. Y. Session Laws of 1850, pp. 231, 232; Barney v. Oyster Bay & H. Steamboat Co., 2 N. Y. Sup. (T. & C.), 598; Barney v. Steamboat D. R. Martin, 8 Albany Law Jour., 54.

Jencks v. Coleman, 2 Sumn. R., 221; Markham v. Brown, 8 N. Hamp. R., 523.

1

§ 690. The carrier is not bound to receive and carry drunken or disorderly persons. He may refuse to receive a drunken man as a passenger; and he may refuse to receive a noisy and disorderly person, or having received he may exclude him from the conveyance on that account.2 After having received a drunken or insane person and taken his fare as a passenger, the carrier cannot rightfully exclude him unless he misbehaves on the journey.3 The same rule has been applied, where a steamer received on board as a passenger, a person of a bad or doubtful character, and afterward excluded him from the conveyance.1

An innkeeper, whose right and duty in this particular are nearly the same, is bound to receive as a guest every person who behaves himself properly and is ready to pay for his accommodations; and has no right to demand the name, or to inquire into the business of a traveller who stops at his house. So a passenger has a right to the presumption that he is engaged in his lawful calling, and cannot be subjected to an inquisition into his private affairs, by a general and public agent. Before he can be rejected and excluded from a public conveyance, there must appear against him some valid and good reason for his exclusion; a reason which the law recognizes as sufficient to deprive him of the right which he holds in common with all other men. It must be shown that he has lost or forfeited his right."

§ 691. It is the right and it is the duty of a carrier of passengers to prescribe and enforce reasonable rules for the preservation of social order. In a car, in the cabin of a vessel, or in the saloon of a steamboat, he has a right, and it is his duty, to enforce proper deportment and decency of speech. Among those eating at the same table, he has a right to insist upon the usages of society, or that decorum which is observed among civilized people, or as Chief Justice Tindal puts it, conduct becoming a gentleman. Coming together casually, in a steamer or in a railway car, a segment of the body politic, the principles governing a resident population, accompany the travellers, and bind them as

1 Vinton v. Middlesex R., 11 Allen, 304; Murphy v. Union R., 118 Mass., 228; but see Milliman v. N. Y. C. & H. R. R. Co., 66 N. Y., 642.

2 People v. Caryl, 3 Parker C. R., 326; 46 N. Y., 23.

3 Coppin v. Brathwaite, Exch., 8 Jurist, 875; 55 N. Y.,

108.

4 Pearson v. Duane, 4 Wall., 605; Bretherton v. Wood, 3 Brod. & B., 54. Rex v. Ivers, 7 Carr. & Payne, 213; 6 id., 742.

6 Bennett v. Dutton, 10 N. H., 481; Bennett v. Peninsular Steamboat Co,

9 C. B., 775.

7 Chamberlain v. Chandler, 3 Mason, 242.

Pendergast v. Campton, 8 Carr. & Payne, 454; Noden v. Johnson, 12 y.

B., 218; 2 Eng. L. and Eq., 201.

members of a larger society, in their conduct towards each other. Profane, obscene or coarse language, threats of violence, that which the law punishes as disorderly conduct in a like company casually assembled in a city, is equally disorderly and reprehensible in a car or on a steamboat filled with passengers; and so justifies the carrier, as it does an innkeeper, in excluding the offender from the company, the inn or the car.1

The duty of the carrier binds him to protect a passenger against misconduct or violence from his agents and servants, and from other passengers. That is to say, it binds him to exercise the utmost vigilance in maintaining order and in guarding passengers against any violence that may be reasonably anticipated, or naturally expected to arise under the circumstances; first, in refusing to receive drunken, disorderly or riotous persons as passengers; and second, in controlling and ejecting them from the conveyance. For a failure to exercise this police power, when the occasion requires it, the carrier is liable. He is not liable specifically for the wrongful acts of one passenger to another.3

§ 692. To secure the safety and comfort of travellers, the proprietors of steamboats, railroads and hotels are invested with the right of preserving peace and order in the depots, stations, landing places and grounds used by them in the transaction of their business; and this right may be enforced in a manner established by rules, or without them, by the exercise of a reasonable and proper authority reposed in them by law.1 Railroad companies have also the right, by suitable regulations, to require passengers to purchase their tickets before they enter the car, and to exhibit them when requested, at any time on the journey, and finally

' Profane cursing and swearing is treated in the statutes of New York as an offence against public decency. 2 R. S., 933, 5th ed. People v. Porter, 2 Park. Cr., 14. Drunkenness incapacitates a man in many ways; McMahon v. Harrison, 2 Seld., 6 N. Y., 443; it renders a man found in that condition on the streets, or in any public place, liable to arrest. Commonwealth v. Boon, 2 Gray (Mass.), 74; State v. Waller, 3 Murph. (N. C.), 229. Ante § § 471, 472.

2 Flint v. N. & N. Y. Transp. Co., 34 Conn., 558; Norwich Tr. Co. v. Flint, 13 Wall., 3; Byrant v. Rich, 106 Mass., 180; Pittsburgh R. v. Hinds, 53 Penn. St., 512. In L. M. R. R. Co. v. Wetmore, 19 Ohio St., 110, the railroad company was not held liable for a blow given in a quarrel by a servant whose business it was to check baggage.

3 Putnam v. Broadway & Seventh Ave. R. R. Co., 55 N. Y., 108; Pittsburgh, F. W. & C. R. R. Co. v. Hinds, 53 Penn. St., 512; Flint v. Norwich & N. Y. Transp. Co., 34 Conn., 554; 6 Blatch. C. C. R., 158; Pittsburgh & C. R. R. Co. v. Pillow, 76 Penn. St., 510; New Orleans, S. L. & Ch. R. R. Co. v. Burke, 16 Albany Law Journal, 23.

4 Markham v. Brown, 8 N. H., 523; 12 Met., 482; 7 Met., 596; 2 Sumn. R.,

to surrender them.

2

The ticket is used as a voucher in making up the accounts of the road. It is therefore considered a reasonable regulation, of the company that passengers shall preserve and show their tickets, or pay the conductor the regular fare; that they shall use or ride on the ticket according to the agreement, fixing the train or the time or the season for its use; and that a rule or custom is reasonable, which requires passengers soon after starting to surrender their tickets to the conductor and receive his checks in place of them; there being a perfect reciprocity in the custom, securing to the passenger a token or evidence of his right to a passage on the train.5

4

§ 693. The regulations of a railroad must be reasonable and consistent. The company cannot require a passenger to procure his ticket beforehand, unless they furnish him the facilities or give him the opportunity of doing so; and they cannot charge him a higher rate for omitting to do what they render impracticable. Admitting a regulation to be valid, requiring a passenger to pay an increased rate where he does not

1 Pullman Palace Car Co. v. Reed, 75 Ill., 125; Havens v. H. & N. II. R. Co., 28 Conn., 88; Maples v. N. Y. & N. H. R. Co., 33 Conn., 557; Hibbard v. N. Y. & Erie R. Co., 15 N. Y., 455; 56 N. Y., 295.

2 Downs v. N. Y. & N. H. R. Co., 36 Conn., 287; Standish v. Narragansett Steamship Co., 111 Mass., 512. A party riding on a commutation ticket is also bound to show it on request, or pay his fare; 36 Coun., 287; but where he has it on his person, and the general fact that he has such a ticket is known to the conductor, his failure to find it on the instant will not justify his expulsion from the car. He is entitled to a reasonable time to search his pockets or clothes for it. Maples v. N. Y. & N. H. R. R. Co., 38 Conn., 558. The loss of a ticket for a berth in a sleeping car, after buying and paying for it, does not justify the conductor who has evidence of the facts, in expelling the passenger from the car; and it has been held that the Palace Car Company is liable in damages for the act of expelling him, but not liable in exemplary damages. Pullman Palace Car. Co. v. Reed, 75 Ill., 125.

3 "Good this date only," stamped on the ticket, at the time it is purchased, becomes a part of the contract. Elmore v. Sands, 54 N. Y., 512; Boston & Lowell R. R. Co. v. Proctor, 1 Allen, 267; Barker v. Coflin, 31 Barb., 556; Boice v. Hudson R. R. Co., 61 Barb., 611; Shedd v. Troy & Boston R. Co., 40 Vt., 88; Deitrich v. Penn. R. Co., 71 Penn. St., 432; Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100; Hill v. S., B. & N. Y. R. Co., 63 N. Y., 101.

4 Northern Railroad Co. v. Page, 22 Barb., 130; Loring v. Alborn, 4 Cush.

R., 608; Cheney v. B. & M. R. R. Co., 11 Met., 123.

5 The conductor may take up the tickets in this manner, on giving a check; State v. Thompson, 20 N. H., 250; Havens v. Hartford R., 28 Conn., 69; Cleveland R. v. Bartram, 11 Ohio St., 457; Jennings v. Great Northern R. L. R., 1 Q. B., 7. The question as to the validity of the regulation is one of law. Vedder v. Fellows, 20 N. Y., 126; People v. Caryl, 3 Parker C. R., 325,

6 Nellis v. N. Y. Central R. Co., 30 N. Y., 505.

1

procure his ticket before entering the car; the rule is not reasonable or valid where it is the fault of the company that a passenger does not procure his ticket. They must keep their office for the sale of tickets open, with an agent in it ready to supply the demand, or they cannot make an extra charge for the omission.2

§ 694. The regulations of a railway carrier must be fairly and reasonably enforced. Having a right to exclude a man from a car, for refusing to show his ticket or pay his fare, or for disorderly conduct, the company must answer for the manner in which this right is exercised. The law does not permit the use of any more force than is necessary, and it holds the company liable as principal for the use of any excess of force by its agent, the conductor, beyond what is necessary and proper to accomplish the removal. Without holding the company liable for the agent's willful and malicious violence, it does hold them answerable for the force used by their agent acting under their instructions, in the line of his duty; both when he exceeds his duty through an error of fact, and when he overdoes it through zeal and impetuosity of temper.3

When the conductor acts in good faith, enforcing a reasonable and lawful regulation, under circumstances which do not justify his act in expelling a passenger from a car, the company is not liable in punitive damages. The rule of damages is the same, when the action is brought against the company, as it is when brought against a natural person or the agent himself. The rule was so applied on the Hudson River Railroad, on this statement of facts: The plaintiff purchased a ticket at Sing Sing for Rhinebeck, and went on board of a train going no farther north than Poughkeepsie; after the train passed Peekskill, the plaintiff on the conductor's call for tickets surrendered his, receiving back no check or voucher showing his right to a passage upon any train of the road, and

1 Hillard v. Goold, 34 N. H., 230; State v. Goold, 53 Me., 279; St. Louis R. v. South, 43 Ill., 176; 24 Conn., 249.

2 Porter v. N. Y. Central R. R. Co., 34 Barb., 353; Chicago R. v. Parks, 18 Ill., 460; Jeffersonville R. v. Rogers, 28 Ind., 1; 30 N. Y., 505; Iowa v. Chovin, 7 Iowa, 204.

3 Higgins v. Watervliet T. & R. Co., 46 N. Y., 23. Here the conductor ejected the plaintiff from a car as a disorderly person, and it was found on the trial that the plaintiff was not in fact disorderly, and the company was held liable. In Jackson v. Second Avenue R. R. Co., 47 N. Y., 474, the company was held liable for excessive force used with some temper. See also Sandford v. Eighth Ave. R. Co., 23 N. Y., 343; Seymour v. Greenwood, 7 H. & N., 356; Coleman v. N. Y. & N. H. R., 103 Mass., 160.

Hamilton v. Third Ave. R. Co., 53 N. Y., 25; Townsend v. N. Y. C. & Hud. son River R. Co., 56 N. Y., 295.