requesting none; upon the arrival of the train at Poughkeepsie, where it stopped, the plaintiff got out and waited for another train going north and stopping at Rhinebeck; the plaintiff then entered the car, and when called upon for his ticket, told the conductor that his ticket had been taken up by the other conductor, which was confirmed by some of his fellow passengers: the conductor then told the plaintiff that it was his duty to obtain a ticket or collect the fare, and that the other conductor would make it right with him; plaintiff refused to pay, and was ejected from the car, at a regular station. Hereupon the court ruled that the regulation calling for a ticket, check, or fare from each passenger under the penalty of being expelled from the conveyance, was in itself reasonable; that the negligence of the first conductor in taking up the ticket, without giving the plaintiff a check, was wrongful and inexcusable, so that the road was liable for the act of ejecting the plaintiff from the car; and further, that the conductor acting as he believed in the performance of his duty, in expelling the plaintiff from the car, could not be held liable in punitive damages; and that the ;1 company, the principal, could not be held liable under a rule any more severe. The court further holds that the wrongful taking of a ticket from a passenger, as in this case, does not justify the passenger in asserting his right to a passage on another train by force. For the same reason the carrier cannot use force to detain a passenger as he is about to leave a boat, more than a reasonable time to inquire into the truth of his allegation regarding the loss of his ticket."

§ 695. It is the duty of common carriers of passengers to keep their engagements with the public in receiving passengers and in starting their coaches, boats or trains on time. It is also their duty to supply them with the usual accommodations and board, where the fare covers both the passage and board. Receiving passengers on board of a railroad train, it is the carrier's duty to furnish them with room in a car, and seats, so as to enable them to ride in the usual manner; it is the conductor's business to enforce the rules of the road and clear the seats that are improperly occupied, for the use of passengers who are standing within the car or upon the platform.

1 Hamilton v. Third Avenue R. Co., 53 N. Y., 25.

2 Townsend v. N. Y. Cen. & H. River R. Co., 56 N. Y., 295.

3 Standish v. Narragansett Steamship Co., 111 Mass., 512.

Heirn v. M'Caughan, 32 Missis., 17; Whitsell v. Crane, 8 Watts & Serg., 369; Denton v. Great Northern R., 5 Ellis & B., 860; Sears v. Eastern R., 14 Allen (Mass.), 433.

Adderly v. Cookson, 2 Cambp., 15; Siordet v. Brodie, 3 Campb., 253. 6 Willis v. Long Island R. Co., 32 Barb., 398; S. C., 34 N. Y., 670.

Those who secure a passage in a stage coach, on a steamboat, in a palace or sleeping car, stipulate for a seat, berth or stateroom, as one does for a reserved seat at a concert. There is nothing to interfere with the freedom of the parties, in making the contract.1 Passengers entering an ordinary car, are allowed to choose their seats for themselves; and this choice is tacitly respected by the carrier and by the travelling public. Has the carrier a right to make a regulation requiring negroes to sit by themselves at one end of the car? Or excluding them from the cabin of a steamboat? Regulations of this kind have been held valid in States where the colored population is relatively small; on the ground that it is the duty of the carrier to guard and secure the comfort and convenience of the community at large, rather than that of individuals.2 The decisions quietly assume that the comfort and convenience of the community are in some way dependent upon the regulation. The fact thus assumed is not recognized in this State, where the law accords to every citizen the full and equal enjoyment of any accommodation, advantage, facility or privilege, furnished by common carriers on land or water; and declares expressly that a citizen shall not by reason of race, color or previous condition of servitude be excluded from public houses, theatres, common schools, public institutions of learning, or cemeteries.3 And now under the act of Congress, all persons within the jurisdiction of the United States, are entitled to the full and equal enjoyment of the accommodations, advantages, facilities and privileges of inns, public conveyances on land or water, theatres, and other places of public amusement; subject only to the conditions and limitations established by law, and applicable alike to citizens of every race and color, regardless of any previous condition of servitude.

§ 696. A railroad carrier is answerable for the safe and proper construction of its depots, stations, platforms and the approaches, used in

1 Long v. Horne, 1 Carr. & P., 610; Deevort v. Loomer, 21 Conn., 245; Ga lena R. v. Yarwood, 15 Ill., 468.

2 Day v. Owen, 5 Mich., 520; West Chester R. v. Miles, 55 Penn. St., 209; see Turner v. North Beach R., 34 Cal., 594; Pleasants v. North Beach R., 34 Cal., 586; Tarbell v. Central Pacific R., 34 Cal., 616; see Chicago & N. R. Co. v. Williams, 55 Ill., 185.

3 New York Laws of 1873, chap. 186, p. 303.

The statute is broader and also less broad than that of New York; it applies to "all persons," and it does not apply to common schools and institutions of learning. See Civil Rights Bill, chapter 114, passed at Second Session Forty-third Congress, and approved March 1, 1875. Senator Sumner died in March, 1874, bequeathing his Civil Rights Bill to the care of his friends, and his will took effect according to his intent.

1

receiving or landing passengers. It is bound to keep them in a suitable and safe condition for the accommodation of passengers; and properly lighted in the night time, so as to render the entrance and the egress convenient and safe. The same legal duty rests upon carriers by water, in respect to the appliances used in receiving or landing passengers.3 Parties waiting in a station to take the cars, or at a landing to take the boat, already stand in the relation of passengers, and are entitled to protection in that capacity.4

5

§ 697. Regulations by the carrier determining his mode of doing business and his manner of receiving and carrying passengers, are valid; as that passengers shall ride on passenger trains, and in the cars provided for them; and not on the engine, or in a caboose car attached to a freight train. It is the right of the railroad company to separate the business of carrying freight from the business of carrying passengers; and they may enforce the rule by refusing to receive passengers on board of a freight train, or within a freight car attached to a passenger train. We find no dissent from this proposition. Hence a trespasser, one who intrudes upon a car not used for the conveyance of passengers, and re'mains there in violation of the rules of the road, and is in no way recog nized by the company as a passenger, cannot claim protection on the theory of an implied contract. The railroad company owe him the same duty which they owe to a stranger, and no other or different. He cannot demand protection as a passenger, not having been received in that capacity; and he may reasonably insist upon that degree of care which is due from one man to another, independent of any relation of contract

1 Jeffersonville &c. R. R. v. Riley, 39 Ind., 569; McDonald v. Chicago & N. W. R. R., 26 Iowa, 124; S. C., 29 Iowa, 170; Tobin v. P., S. & P. R. R. Co., 19 Maine, 183; Knight v. P., S. & P. R. R., 56 Maine, 234; McElroy v. Nashua & Lowell R. Co., 4 Cush., 400; Penn. R. Co. v. Henderson, 51 Penn. St., 315.

2 March v. Concord R. Cor., 29 N. H., 9; Martin v. Great N. Railway Co., 30 Eng. Law and Eq., 473; Beard v. Ct. & P. Rivers R. R. Co., 48 Vt., 101 ; Nicholson v. L. & Y. Railway Co., 3 Hurl. & N., 534; Hurlbert v. N. Y. Central R. R. Co., 40 N. Y., 145.

3 John v. Bacon, L. R. 5 C. P., 437; Cocheren v. Ferry Co., 1 N. Y. Sup. Ct., 446; ante 505, § 507.

4 Gordon v. Grand St. & N. R. R. Co., 40 Barb., 546; 4 Lans., 198; Packet Co. v. Clough, 20 Wall., 528.

5 Robertson v. N. Y. & Erie R. R. Co., 22 Barb., 91; Eaton v. Delaware, L. & W. R. R. Co., 57 N. Y., 382; Spooner v. Brooklyn City R. R. Co., 36 Barb., 217. 6 Nicholson v. Erie R. Co., 41 N. Y., 5.5.

7 Lugo v. Newbold, 9 Exch., 302; Bissell v. Mich. Southern & N. I. Co., 22 N. Y., 259, 280, 306.

subsisting between them; care not to injure him by any affirmative act, or by any gross negligence.1

The relation of contract arises where a person openly takes a seat in a car used for conveying passengers. Being a passenger, he does not forfeit his right to protection by going into, and taking a seat in the baggage car, with the conductor's assent. The rule is different, where a person is received to ride in the baggage car, the passenger car being full, and he goes upon another car and is injured.3

Admitting the right of the company to refuse to carry passengers in the caboose car attached to a freight train, the law also permits them to receive and carry passengers in that conveyance. And if they so receive a person, and take fare from him, or recognize his ticket as evidence of his right to a passage, they assume the same liability to carry him safely as upon an ordinary passenger train. On the other hand, when the printed regulations of the company prohibit the carrying of passengers in that car, and no fare is claimed or paid or expected, the conductor cannot render the railroad liable as a passenger carrier of persons received by him into that car.5

§ 698. The liability of the carrier does not necessarily rest upon the basis of a contract. The railway company is liable as a carrier to any person who is lawfully upon the train; and it has been questioned whether the company can avail itself of a rule adopted for the government of its agents and servants prohibiting the carrying of passengers in a saloon car, attached to a freight train, where the conductor receives him into that car, and he has no notice of the rule. The public naturally assume that the agent of a road is acting within the line of his authority, and in conformity with the by-laws of the corporation. But passing this question, it appears to be well settled that a carrier of free passengers is bound for the same diligence and skill, as he is when carrying

1 Nicholson v. Erie R. Co., 41 N. Y., 525; Hounsell v. Smyth, 97 Eng. Com. Law, 731; Driscoll v. Newark & R. Cement Co., 37 N. Y., 638; Southcote v. Stanley, 1 Hurl. & N., 246; Balch v. Smith, 7 Hurl. & N., 732; Corrigan v. Union Sugar R., 98 Mass., 577; St. Peter v. Denison, 58 N. Y., 416; Bush v. Brainard, 1 Cowen, 78.

2 Carroll v. N. Y. & N. H. R. R. Co., 1 Duer, 571; Lackawanna R. v. Chenewith, 52 Penn. St., 382.

3 Galena R. v. Yarwood, 15 Ill., 468.

4 Edgerton v. N. Y. & Harlem R. R. Co., 35 Barb., 193; S. C., 39 N. Y., 227 ; Dunn v. Grand Trunk R. Co., supra.

Eaton v. Delaware, L. & W. R. Co., 57 N. Y., 382; 22 Barb., 91; Contra, Dunn v. Grand Trunk R. Co., 58 Maine, 187.

• Dunn v. Grand Trunk R. Co., 58 Maine, 187; Lackawanna & B. R. Co. v. Chenewith, 52 Penn. St., 382.

passengers for hire;' and that a person riding under a contract between other parties, like a mail agent or an express messenger, is entitled to the same protection as a passenger paying his own fare; and further, that an infant child paying no fare under the custom of a road, is entitled to the same equal and just protection.3

II. PAYMENT OF FARE.

§ 699. A carrier of passengers, like a common carrier of goods, has a right to demand payment of his hire in advance, as a condition precedent to his receiving a person as a passenger. Passage money or fare, and freight are governed by the same rules. Where a person takes his place in a stage coach, and pays at the time only a part of the fare as a deposit, the proprietor is at liberty to fill up his place with another passenger, provided the first is not at the inn ready when the coach sets off. But where at the time of taking his place he pays the whole fare, the proprietor cannot dispose of his seat to another; for the passenger may take it at any stage of the journey he thinks proper, at the place most convenient to him. Having permitted a passenger to get into the stage at the usual hour of departure, and have his luggage fastened on, the owner cannot, on being tendered his hire, refuse to go the journey ; because this is such an inception of the contract, that he is bound to go through with it."

Under the general custom, a passenger's fare covers and includes a compensation for the conveyance of his baggage. And hence where there is no special usage or regulation, charging freight or luggage exceeding a certain weight, payment of the usual fare entitles a passenger to carry with him his baggage; including wearing apparel and

'Perkins v. N. Y. Central R. Co., 24 N. Y., 196; Philadelphia & R. R. Co. v. Derby, 14 How. U. S., 468; Steamboat New World v. King, 16 How. U. S., 477; Doran v. East River Ferry Co., 3 Lansing, 105; Gill v. Middleton, 105 Mass., 479; Wilton v. Middlesex R. R., 107 Mass., 108.

2 Pennsylvania Co. v. Woodworth, 26 Ohio St., 585; Nolton v. Western R. Cor., 15 N. Y., 444; see Union Pacific R. Co. v. Nichols, 12 American R., 475, where the agent took in a man to teach him the business, and the conductor permitted him to remain, supposing him to be an agent of the express company, and he was injured.

3 Austin v. Great W. R. R., Law Rep., 2 Q. B., 442. The child in this case, should have paid half fare under the statute; and nothing was paid or demanded.

4 Moffatt v. East India Co., 10 East, 468; Watson v. Duykinck, 3 John. R., 335; Briggs v. Austin, 3 Pick., 20; 1 Peters' Adm. R., 126, 206; ante § 639. Ker v. Mountain, 1 Esp., 27.

6 Jeremy on Car., 23; 4 Esp., 260; Buffit v. Troy & Boston R. R. Co., 36 Barb., 420; S. C., 40 N. Y., 163; Frink v. Schroyer, 18 Ill., 416.