the same ticket riding or travelling on the defendant's cars between the cities of Baltimore and Washington, or to or from any intermediate places between said cities; provided the jury further find that the said conductors or collectors did not know but that the person or persons who had so as above mentioned previously used the ticket, was or were rightfully entitled to use it, and being the same person or persons to whom the ticket had been actually

issued.

7. If the jury find from the evidence that the plaintiff, at the time and place where he was ejected from the defendant's cars, was riding or travelling thereon with the commutation ticket in evidence in this case, nevertheless the possession of such ticket did not entitle him to use it in riding or travelling on the defendant's cars, if the jury shall further believe from all the evidence that the said ticket had previously to that time been used by a person or persons other than the plaintiff in riding on the said trains, and between the cities of Baltimore and Washington, with the knowledge and consent of the plaintiff, and if the jury believe that the ticket was so used previously to the time of the plaintiff's ejection, it is incumbent on the plaintiff to satisfy the jury that such user was without his knowledge or against his consent.

The court (LYNCH and BOUIC, J.,) granted the prayers of the plaintiff, the first with an addition, and rejected the second, third, fifth, and sixth prayers of the defendant, and granted its first, fourth, and seventh prayers. The plaintiff excepted, and the verdict and judgment being for the defendant, the plaintiff appealed. The cause was submitted to BARTOL, C.J., BOWIE, BRENT, MILLER, and IRVING, J.

Frederick J. Nelson and William H. Hinks for the appellant: The plaintiff's first prayer (as amended by the court) and the defendant's first prayer, which were granted, are utterly inconsistent. Where prayers granted on the same hypothesis of fact are so inconsistent that conformity with the one necessarily implies disregard of the other, they are calculated to mislead, and therefore erroneous. Young v. Mertens, 27 Md., 125; Haney v. Marshall, 9 Md., 215; Blocher's Case, 27 Md., 277.

The plaintiff's second and third prayers announce the correct measure of damages. Balt. & Yorktown Turnpike Co. v. Boone, 45 Md., 347, 355; Gaither v. Blowers, 11 Md., 552.

Charles W. Ross and John K. Cowen, for the appellee: It is now well settled that a carrier of passengers has the right to adopt such reasonable rules and regulations for the government of its passengers and itself, so as to enable it to avoid imposition; and its passengers are legally bound to conform to its rules. B. & O. R. R. Co. v. Blocher, 27 Md., 277; McClure v. P. W. &. B. R. R. Co., 34 Md., 532.

It has also the right, in consideration of a reduced fare, to issue special tickets, and to prescribe the terms and conditions upon which such tickets are issued; and, so far as expressed, the terms and conditions upon which such tickets are issued and accepted are binding. Johnson v. Concord R. R. Co., 46 N. H., 213; State v. Overton, 4 Zabrisky, 435; Cleveland, etc., R. R. Co. v. Bertram, 11 Ohio St., 457; Dietrich v. Pa. R. R. Co., 71 Pa. St., 432; Ripley v. N. J. R. R. & Trans. Co., 2 Vroom, 388; Sherman v. Chicago & N. W. R. R. Co., 40 Iowa, 45; Cooper v. London and B., etc., Co., Exchequer Div. of Eng. Court, Railway Age, of May 15, 1879.

The ticket, when thus issued and accepted by the passenger, constitutes a special contract between the railroad company and the passenger; and the court, in the construction of the contract, is bound to give full force and effect to each and every condition and provision therein contained.

The law of the contract in this case was fairly given by the court to the jury in all its rulings, and the appellant has nothing to complain of in the amendment to his prayer.

BRENT, J.-This action was brought by the appellant to recover damages from the Baltimore & Ohio Railroad Company for an alleged unlawful expulsion from its cars.

He had purchased from the company a ticket of the class known as commutation tickets, good for travel over the company's road between Baltimore and Washington, for three months, from the 1st of February, 1877, to the 30th of April following. Being a special ticket, differing from the ordinary passenger ticket, it is issued only on special terms and stipulations, which are designated upon its face. Among those upon the present ticket are the stipulations, "to be used only by M. A. Freidenrich, between Baltimore and Washington, from February 1, 1877, to April 30, 1877," and on the margin, "if found in the hands of any one but the party in whose name it is issued, this ticket will be forfeited and taken up."

Before the expiration of the time mentioned, the appellant, Freidenrich, entered the cars of the appellee in Baltimore on his way to Washington. After leaving Baltimore and before reaching the Relay Station, a few miles out, the conductor took up the ticket of the appellant, and demanded from him the usual passenger fare. This the appellant refused to pay, and was thereupon on reaching the Relay Station put off the cars of the appellee.

The principal facts relied upon by the appellee to justify the act of its agent are, that the ticket in question had been used by persons other than the appellant, in travelling over its road, and that in the removal of the appellant from its cars, after the taking up of the ticket and his refusal to pay the usual fare, no force, violence, or harsh language was used on the part of its agent.

The appellant on the other hand testified, that he had never parted with the possession of the ticket, and that it had never been used by any other person than himself.

After the evidence was closed the appellant presented three prayers, and the appellee seven. The first prayer of the appellant was modified by the court, and the second and third prayers granted, as were also the first, fourth, and seventh of the appellee. The verdict being against the appellant, he now claims there was error in the modification of his first prayer, and in granting the three prayers of the appellee.

The first prayer asks the court to instruct the jury that the plaintiff is entitled to recover, if they find the ticket in question was taken from his possession and he ejected from the cars, and "shall further find that the said plaintiff did not loan, sell, or in any manner transfer said ticket to any other person, or knowingly permit any other person to use said ticket before that time." The court here added," and shall find that said ticket was not used by any other person than the plaintiff, through the negligence or want of due care on the part of the plaintiff," and this is the modification complained of.

This prayer seems to admit that the ticket was properly taken from the appellant, if before that time it had been used by any other person with his connivance. But even if it does not, there can be no question of its forfeiture if so used, and the agent of the road had afterward the right to take it up even in the hands of the person to whom it was issued. It was the subject of contract between the company and passenger, and the conditions and stipulations annexed became mutually binding so soon as the ticket was issued by the one and accepted by the other. The company thereby became bound to carry the appellant upon its cars according to the terms of its undertaking, and he on his part was bound by all the terms and conditions upon which the ticket was issued. Among these conditions, as before stated, was its forfeiture, if used by another person, and if so used, it was to be taken up.

This we think is the reasonable construction of this part of the contract between the parties, as expressed upon the face of the ticket, and is the one adopted by the Circuit Court in its instructions to the jury.

But it is contended that the court erred in its modification of the appellant's first prayer, by adding, "and shall find that said ticket was not used by any other person than the plaintiff, through the negligence or want of due care on the part of the plaintiff."

There are circumstances under which the use of the ticket by another than the person to whom it was issued would not have the effect of its forfeiture-where, for example, it had been taken from him by force or violence, and some means against which he could not have reasonably guarded-but he cannot be excused if

he has been guilty of negligence or a want of due care. From the character of the ticket, and its liability to be used by another, in fraud of the agreement that it is to be used only by the person to whom issued, the implied obligation rested upon him when he accepted it from the company to keep it with due and proper care. If, from his negligence, it came into the hands of another, and was fraudulently used upon the company's road, he is just as amenable to its forfeiture as if it had been used with his assent. In this respect the law was properly stated by the court in its addition to the prayer. As there was, however, no question of negligence raised by the proof in the case, the addition to the prayer was unnecessary. But manifestly it could not in any respect have prejudiced the case of the appellant before the jury. This being so, this court has repeatedly said, it is not sufficient a cause for reversal. The prayers on the part of the appellee, which were granted, seem fully to cover the evidence offered. The appellee gave proof that the ticket in question had been used by persons other than the appellant, and the appellant that it had never been out of his possession, and had never been used by any one but himself. And this was the only question of fact presented by the whole proof for determination to the jury.

The objection relied upon to these prayers as granted is that they are inconsistent with the first prayer as modified and granted on the part of the appellant, inasmuch as they are silent in regard to "the negligence or want of due care on the part of the plaintiff."

Instructions given to the jury by the court are confined to the evidence in the particular case. They are not intended or required to cover more than the evidence offered, or to state any principle of law which is not applicable to it. Although the law in regard to negligence was truly stated by the court in its first instruction, it was not really a question, as we have before said, arising upon the proof in the case. Its omission, therefor, from the prayers granted in behalf of the appellee was not error. Nor was it in any way calculated to confuse or mislead the jury.

When the appellee offered proof that the ticket had been improperly used upon its road, the burden was upon the appellant to show that it had never been so used, or if used, that it was not through any fault or want of due care on his part. He elected the former issue, and sought to establish to the satisfaction of the jury that, in fact, the ticket had never been used by any one else but himself. The testimony was flatly contradictory and irreconcilable, and it was only upon this direct issue raised by the proof that the jury was called upon to decide.

The instructions of the court fairly submitted to the jury the law and facts in the case. We have failed to discover any error sufficient for a reversal. The judgment will therefore be affirmed. Judgment affirmed.

THE CENTRAL RAILROAD COMPANY OF NEW JERSEY et al.

v.

THE STANDARD OIL COMPANY et al.*

(33 New Jersey Equity Reports, 372. Feb. Term, 1881.)

After the court had refused a preliminary injunction for the removal of an oil pipe and to prevent its use by defendants, and had discharged an ad interim order staying the defendants in the premises, and an appeal therefrom had been taken and was pending, an application to this court to continue such ad interim order, merely on the ground of the appeal, was denied.

Motion to continue interim stay pending determination of appeal.

Mr. B. Gummere for the motion.

Mr. R. Gilchrist and Mr. A. P. Whitehead, of New York, contra.

THE CHANCELLOR.-On the filing of the bill in this cause an order to show cause why an injunction should not be issued pursuant to the prayer of the bill, was granted, with an ad interim stay prohibiting the defendants, the oil company, from using the pipe for the conveyance of oil. The bill complains that the defendants have without authority invaded and usurped the property and franchises of the complainant company by laying pipe for the conveyance of petroleum across the property of the latter, and near and alongside of a bridge across the railroad, which the complainants insist was when the pipe was laid, and still is, the property of the railroad company. The pipe was laid in what is claimed by the defendants to be the space taken by condemnation by the municipal authorities of the city of Bayonne, for a public street, in which space the bridge is. The prayer of the bill is, that the defendants may be enjoined from interfering with the complainants in the removal of the pipe from the bridge and from over the railroad tracks, and from interfering with the complainants by laying, or for any purpose using, any pipe either over, on or under the complainants' railroad tracks in Bayonne or elsewhere, or in any manner, for the purpose of laying the pipe, interfering with or occupying the complainants' railroad; and generally for other relief. The defendants answered the bill, and the order to show cause was argued on the pleadings and depositions and exhibits on each side, and the questions in dispute between the litigants were very fully and ably presented and discussed on both sides, and after full and very deliberate consideration the order was discharged. This, of course, dissolved the temporary stay contained in it. From the order

*See 1 Am. & Eng. R. Cas., 36.