Shelton v. Erie R. Co

"Good only for continuous passage Mountclair to Upper Mountclair beginning on day of sale or the next day." The ticket had been sold to the plaintiff on December 15th, and hence by its terms had expired. Upon being informed by the conductor that under the rules of the company the ticket could not be accepted for fare after the date of its expiration, the plaintiff refused to pay any other fare, and, when told that under the rules he must in that case leave the train, replied that he would not do so unless legal force was used. When the train reached the next station, the conductor placed his hand on the plaintiff's shoulder, and the two walked to the rear platform of the car, and when the train had stopped at the station the plaintiff stepped down on the bottom step from which before the train moved off he was given “a last push" by the conductor. For this expulsion the plaintiff brought his action in tort against the railroad company and recovered substantial damages.

Other facts are that the plaintiff had paid 10 cents for his ticket, for which price he should have been given a ticket that was not limited, that the limitation printed on the ticket was one the defendant could not lawfully impose, and that the limitation had not been noticed by the plaintiff. Whether tickets without such limitation were issued by the defendant and on sale at its ticket offices did not appear. The plaintiff also testified that he had with him 20 cents, the amount of the fare and excess fare demanded of him by the conductor, but that "he had paid the full price and refused to pay over again."

The right of the plaintiff to maintain his present action upon the foregoing facts is directly raised by assignments of error based on exceptions to the court's refusal to nonsuit the plaintiff or to direct a verdict for the defendant.

Upon the facts stated, it is entirely clear that whatever injury the plaintiff suffered at the hands of the defendant had its origin in the delivery to him by the ticket agent of a ticket that was limited as to the time when it must be used, whereas for the price that he paid he ought to have been given a ticket that was not so limited. It is equally clear that the present suit is not grounded upon this injurious act of the defendant or its ticket agent, but upon the conductor's denial of the plaintiff's right to travel upon the ticket that was presented to him, viz., a ticket that on its face negatived the right that was claimed under it by the plaintiff. The precise question, therefore, is whether a passenger who has been expelled from a train for refusing to pay his fare may maintain an action for such expulsion, if previously thereto he had tendered to the conductor a ticket that on its face was not receivable for his fare, provided that he had accompanied such tender with the true statement that he had paid for such ticket the full rate for which a proper ticket ought to have been issued to him. In still narrower form the question is whether the rule that premits the expulsion of a passenger who neither pays his fare nor tenders a ticket that shows his right to ride is abrogated or modified by the circumstances that were communicated to the conductor in the present case.

Shelton v. Erie R. Co

While this question is one of first impression in this court, the underlying proposition that a passenger may lawfully be ejected for nonpayment of fare must be taken to be entirely established in this state. That "railroad companies are not bound to carry a passenger unless upon payment or tender of his fare, that they may in such case either refuse to permit him to enter the cars or having entered them they may require him to leave them before the termination of the journey, and that if he refuses to leave they may remove him at a suitable time and place using no unnecessary force"-were, more than half a century ago, treated by Chief Justice Green in State v. Overton, 24 N. J. Law, 437, 61 Am. Dec. 671, as unquestionable regulation. The criticism of this case in Daniel v. New Jersey Street Railway, 64 N. J. Law, 603, 46 Atl. 625, left untouched these basic propositions, which, indeed, are not now questioned anywhere.

In other jurisdictions for whose decisions we entertain the highest respect the question we are now called upon to decide has been passed upon in a large number of cases.

In a recent case in the federal Court of Appeals Judge Taft said: "The law settled by the great weight of authority * * * is that the face of the ticket is conclusive evidence to the conductor of the terms of the contract of carriage between the passenger and the company." Pouilin v. Canadian Pacific Railroad Company, 52 Fed. 197, 3 C. C. A. 23, 17 L. R. A. 800.

The Supreme Judicial Court of Massachusetts in Bradshaw v. South Boston Railroad, 135 Mass. 407, 46 Am. Rep. 481, held that "it is a reasonable practice to require a passenger to pay his fare or show a ticket, * * * and it would be unreasonable to hold that a passenger, without such evidence of his right to be carried, might forcibly retain his seat in a car upon his mere statement that he is entitled to passage. If the company has agreed to furnish him with a proper ticket, and has failed to do so, he is not at liberty to assert and maintain by force his rights under that contract; but is bound to yield for the time being to the reasonable practice and requirements of the company, and enforce his rights in a more appropriate way."

In a later case (Dixon v. New England Railroad, 179 Mass. 242, 60 N. E. 581) the same court said: "The passenger's right to transportation is no greater than the right and duty of the conductor to enforce reasonable rules, and, for the time being, the passenger must bear the burden which results from his failure to have a proper ticket. A passenger may have a right to transportation between certain stations because of his connection with a certain ticket, and yet, if the ticket itself is not in order, a conductor is not bound to take it in payment of fare.”

In Stockdale's Case, 83 Md. 245, 34 Atl. 880, the Court of Appeals of Maryland held that "in all cases when the question as to the right of a passenger to travel arises between him and the conductor of the train the ticket is unnecessarily the conclusive evidence of the nature and extent of the passenger's right."

"No other rule," said Judge Cooley in Hufford v. Grand

Shelton v. Erie R. Co

Rapids Railway Company, 53 Mich. 118, 18 N. W. 580, "can enable the conductor to determine what he may or may not lawfully do in managing the train and collecting fares." And on another occasion the same court held that, "when a passenger receives a defective ticket from an agent of the company by reason of the mistake or negligence of the agent, the conductor may refuse to accept such ticket, and is authorized to compel the passenger to leave the train if payment of fare is refused."

The New York Court of Appeals in Monnier v. New York Central & Hudson River Railroad Company, 175 N. Y. 281, 67 N. E. 569, 62 L. R. A. 357, 96 Am. St. Rep. 619, said: "A person who becomes a passenger in a public conveyance must subordinate his conduct to all rules that are reasonable and valid. The simple duty of the conductor is to execute and enforce all reasonable rules, and that of the passenger is to obey them. If there is some fact or omission behind the rules not apparent upon the face of the transaction, the passenger must resort to some other remedy for his grievance besides the use of force against the conductor, and, if under such circumstances he invites a personal collision with the officer in charge of the train resulting in his forcible expulsion, he puts himself in the wrong, and cannot sue the company or the officer for assault and battery."

In Kiley v. Chicago City Railway Company, 189 Ill. 384, 59 N. E. 794, 52 L. R. A. 626, 82 Am. St. Rep. 460, the Supreme Court of Illinois held that "the conductor was ordered by his superior not to receive a ticket like the one presented. This order he was bound to obey, and, when the passenger was notified by the conductor that his ticket was not good and would not be received, it was his duty to leave the train in a peaceable manner, and hold the company responsible for the consequences. * The passenger should seek redress in the courts, where he will find a complete remedy for every indignity offered and for all damages sustained."

* *

The Supreme Court of Michigan in Brown v. Rapid Railway Company, 134 Mich. 591, 96 N. W. 925, held that "the rule of law in this state has been settled that, as between the conductor of a railway train and the passenger, it is incumbent upon the passenger to produce as a ticket one which is apparently good on its face, or pay the fare in cash, and that, failing to do this, the conductor has the right to eject the passenger from the car."

In McKay v. Ohio River Railroad Company, 34 W. Va. 65, 11 S. E. 737,9 L. R. A. 132, 26 Am. St. Rep. 913, the Supreme Court of Appeals of West Virginia said, "if a passenger pay a railroad agent fare for a certain trip, and by mistake of the agent is given a ticket not answering for that trip but one in an opposite direction, and the conductor refuses to recognize such ticket, and demands fare, which the passenger fails to pay, ejection of the passenger from the train without unnecessary force will not be a ground of action against the company as a tort."

The Supreme Court of Alabama in McGhee v. Reynolds, 117 Ala. 413, 23 South. 797, held that, "as to the right of a conductor

Shelton v. Erie R. Co

to eject a passenger who is found riding on a train on a ticket void on its face, it is proper to say, and we may announce without elaboration as the proper conclusion sustained by the great weight of authority, that the ticket is the sole and conclusive evidence to the conductor of the passenger's rights as such to be on the train, * * * and when it is void on its face, in default of payment of fare he may deny the right of the passenger to ride on such ticket and expel him in a proper manner from the train."

These cases and a host of others that might be cited concur in holding the general doctrine that the expulsion by a conductor of a passenger wno neither pays his fare nor tenders a ticket that evinces his right to carriage is in the absence of unnecessary force not actionable. 6 Cvc. 551; 5 Am. & Eng. Ency. 594; 28 Am. & Eng. Ency. 156; 4 Elliott on R. R. § 1594.

To the doctrine thus stated we yield entire assent. Many of the cases cited, however, by reason of the facts involved, or by force of the line of reasoning pursued, go further than we are required to go in the decision of the present case. In order, therefore, that there may be no uncertainty as to the scope of our decision and the ground upon which it rests, it is deemed best that such ground be explicitly stated.

Railroad companies as they exist in this country are corporations in which private capital is embarked in public; i. e., common carriage. These corporations possess, therefore, a dual nature, having in trust on the one hand the financial interests of their stockholders, and, on the other, the convenience and safety of the traveling public. The two agents of these corporations with which alone the public comes in contact, viz., the ticket agent and the train conductor, represent roughly these two corporate capacities. Hence the transaction by which a traveler purchases a ticket from one of these agents for presentation to the other is likewise of this same dual nature, and involves an observance on the part of the passenger of all reasonable regulations established for the conduct of each of these departments. These regulations are simple, uniform, and well understood by the public. The ticket agent sells tickets for cash. He cannot give credit. His authority over the business of his company is limited to the issuance of such tickets as have been placed in his hands for that purpose, as incidental to which he may hand out time tables and give such information to prospective passengers as may aid them in the selection of the tickets they require; i. e., tickets that will pay the fare between the points they designate. The obligation of the company with respect to the acts of this agent is that he shall deliver to passengers the tickets for which they ask and pay. If t'is is not done, whether the fault be that of the agent or the company this obligation is broken, and the company is liable for the damages at result therefrom. The case before us is an illustration of such a breach.

The agency of the train conductor is even more limited for it is all comprised in his duty to collect a fare from every passenger or to eject him from the train.

Shelton v. Erie R. Co

The fare thus to be collected by the conductor may be a cash sum or it may be a ticket; that is for the passenger to determine. If the passenger proposes to pay in cash, he must be provided with and tender to the conductor a sum that under the established rules of the company is sufficient to pay his fare. If he proposes to pay by ticket, he must be provided with and tender a ticket that under the established rules of the company has intrinsic effect of paying such fare. This intrinsic attribute of the ticket is the essential quality to which it owes its efficiency. It is the possession of this attribute that distinguishes a ticket from a contract, on the one hand, and from a mere instrument of evidence, on the other. And I may say here that the failure to emphasize this essential feature of a railroad ticket is the chief reason for our unwillingness to place our decisions solely upon the authority of the cases that have been cited, in most, if not all, of which the efficiency of such ticket is referred in a somewhat vague way to a hypothetical contract, the precise nature of which is necessarily involved in obscurity.

That this essential attribute of a railroad ticket did not escape the acute observation of Chief Justice Beasley is evident from his careful description of such a document in the opinion delivered by him in Petrie v. Pennsylvania Railroad, 42 N. J. Law, 449. "The plaintiff," he said, "had a passenger ticket, issued by the defendant, which on its face and according to its intrinsic effect did not authorize him after having stopped at a place intermediate the designated termini to use it for the purpose of continuing his journey." This language, which might well stand as a definition, not only recognizes that a railroad ticket has the intrinsic effect. expressed on its face, but also that it may have an intrinsic effect that is not so expressed. This is a valid distinction, since it marks the difference between inspection and interpretation as modes for determining the effect, to be given to passports of this nature. The implication is that such effect, when not expressly stated, is to be gathered from the well-known customs of the business of which the ticket forms a part. A postage stamp is a good illustration of such mode of interpretation, or, still better, a special delivery stamp. Nothing on the face of these documents expressly states the effect of either of them, but the well-known custom of which they are a part interprets them to the public and to postal agents alike. Theater tickets afford another familar example, especially the return checks issued during a performance, which, though they may contain only the advertisement of some business house, are interpreted by custom to secure the return of the holder to the theater on the night of their issue. Upon a far more extensive scale promissory notes became early in the history of English law subject to be interpreted solely by the business customs of merchants. Whether I am correct or not in these veiws as to the interpretation of railroad tickets is, however, of no immediate importance, since in the present case the plaintiff's ticket called for no interpretation, for the reason that is expressed on its face the intrinsic effect to be given to it. The subject, which is one of great