The American and English Encyclopedia of Law

either that the train upon which the plaintiff took passage should, under the rules and regulations of the company, have stopped at his station, or that by a special contract the company bound itself to stop there; if either of these allegations be true, the company has no excuse for its failure to stop.1

IX. EXHIBITION AND SURRENDER OF TICKET.2—A railroad company has the right to make regulations requiring passengers to exhibit and surrender their tickets to the proper train officials, at suitable and reasonable times,3 and such regulations should not

1. Ohio, etc., R. Co., v. Hatton, 60 Ind. 12; Ohio, etc., R. Co. v. Swarthout, 67 Ind. 567; 33 Am. Rep. 104; Porter v. The New England, 17 Mo. 290.

2. For an exhaustive treatment of the right of the carrier generally to expel passengers from his vehicles for non-compliance with the regulations here mentioned; what time should be allowed the passenger to produce his ticket; the manner of expulsion, and related subjects, the reader is referred to the article RAILROADS, vol. 19, p. 903 et seq.

3. Louisville, etc., R. Co. v. Fleming, 14 Lea (Tenn.) 128; 18 Am. & Eng. R. Cas. 347; Baltimore, etc., R. Co. v. Blocher, 27 Md. 277; Loring v. Aborn, 4 Cush. (Mass.) 608; State v. Campbell, 32 N. J. L. 309; People v. Caryl, 3 Park. Cr. Cas. (N. Y.) 326; Cresson v. Philadelphia, etc., R. Čo., 11 Phila. (Pa.) 597; Woodard v. Eastern Counties R. Co., 30 L. J. M. C. 126; Havens v. Hartford, etc., R. Co., 28 Conn. 69; Frederick v. Marquette, etc., R. Co., 37 Mich. 342; 26 Am. Rep. 531.

In Hibbard v. New York Cent. R. Co., 15 N. Y. 455, it was held that by refusing to exhibit his ticket, the passenger forfeits his right to proceed further on the train, and does not regain such right by offering to show his ticket after the train has been stopped for the purpose of putting him off.

And the fact that the conductor knows that the passenger is in the habit of using a commutation ticket regularly, which has not expired, will not prevent the enforcement of such a regulation. Bennett v. Railroad Co., 7 Phila. (Pa.) 11; Ripley v. New Jersey R., etc., Co., 31 N. J. L. 388; Downs v. New York, etc., R. Co., 36 Conn. 287; 4 Am. Rep. 77. But see Maples v. New York, etc., R. Co., 38 Conn. 57; 9 Am. Rep. 434. See supra, this title, Kinds of Tickets-Commutation.

In Butler v. Manchester, etc., R. Co.,

L. R., 21 Q. B. Div. 207; 33 Am. & Eng. R. Cas. 551, the English court of appeals declined to pass upon the validity of such a regulation, but upon the whole were inclined to doubt it. (See especially judgment of Lopes, J.) But this case is in conflict with a long line of American decisions.

Reason of the Rule.-The reasons for upholding the validity of such a rule as this are clearly stated by Denio, C. J., in Hibbard v. New York Cent. R. Co., 15 N. Y. 455. He said: "It was proved that the defendant's company had established a regulation by which passengers were required to exhibit their tickets, when requested to do so, by the conductor, and that in case of refusal they might be removed from the cars. If this was a reasonable regulation, the plaintiff was bound to submit to it, or he forfeited his right to be carried any further on the road. In my opinion, the rule was reasonable and proper, and in no way oppressive or vexatious. In the first place, it was easy to be complied with. The railroad ticket is a small slip of paper or pasteboard, which may be conveniently carried about the person; and it involves no conceivable trouble to the passenger, when called upon at his seat by the conductor, to exhibit it to him. Then, no one can question but that this or some similar arrangement is absolutely necessary for the company, unless they are willing to transport passengers free. A train of railroad cars frequently contains several hundred passengers, a portion of them constantly changing as the train passes a station where persons are received and discharged. The tickets, which are given as evidence of the payment of fare, are of as many different kinds as there are stopping places on the road; each being for the distance or to the place for which the passenger has paid. his fare. The conductor must necessarily be a stranger to all a large portion of his passengers.

be condemned unless they are palpably unjust and oppressive.1 A passenger may be lawfully required to produce his ticket

Unless he is allowed a sight of these evidences of the payment of fare, whenever he may require it, he is exposed to the chance of carrying the holder of them beyond the place to which he is paid, or of carrying persons who have not paid at all. If the conductor is not allowed to ascertain whether a passenger who has obtained a ticket still keeps it, there is nothing to prevent its being given to another passenger who has not procured one, and thus serving as a passport for several passengers. But it is argued that

if the ticket has been once shown to a conductor, the passenger cannot reasonably be required to exhibit it a second time. If the duty of showing it were at all difficult and arduous, it might be a question whether the company would not be bound to devise some easier arrangement; or, if it were possible that the memory and other faculties of persons employed as conductors could be so cultivated that they could know and remember the persons of several hundred people, upon seeing them for the first time, and could, moreover, retain the recollection of the terms of the several tickets held by them upon their being once shown, it might be considered unreasonable to require a second exhibition of a ticket in any case. As this degree of perfection is unattainable in the present condition of mankind, I am of opinion that it was lawful, for this railroad company to require that persons engaging passage in its cars should show their tickets whenever required by the company's, servants intrusted with that duty, upon pain of being left to travel the remaining distance in some other way in case of refusal."

Right to Demand Seat Before Surrendering Ticket.-It is held that a passenger who exhibits his ticket and demands a seat, need not surrender his ticket until a seat is furnished. Davis v. Kansas, etc., R. Co., 53 Mo. 317; 14 Am. Rep. 457. But he may not dictate where he will sit or in what car he will ride. Memphis, etc., R. Co. v. Benson, 85 Tenn. 627; 31 Am. & Eng. R. Cas. 112; 4 Am. St. Rep. 776; Chesapeake, etc., R. Co. v. Wells, 85 Tenn. 613; 31 Am. & Eng. R. Cas. 111; Pittsburgh, etc., R. Co. v. Van Houten, 48 Ind. 90. In this last case it was held 25 C. of L.-71

that where all the seats in one of two passenger cars are already filled with passengers, another passenger has no right to demand a seat in that particular car and to refuse to deliver his ticket unless furnished a seat therein; and if he refuses under such circumstances, the persons in charge of the car may eject him.

Nor can the passenger avail himself of the benefit of the transportation, and at the same time withhold from the carrier his ticket. The right and duty of the passenger in the premises are well stated by Cockrill, C. J., in St. Louis, etc., R. Co. v. Leigh, 45 Ark. 368. He said: "When the carrier proffers transportation without a seat, and the passenger refuses to surrender his ticket, what is then the attitude of the parties under the contract? It is simply this: The carrier has offered the passenger less than his contract calls for, and the passenger has refused it in satisfaction. This he has the unquestioned right to do. If he is not accommodated in a manner which may be deemed a fair compliance with the duty of the carrier, he may decline any compromise and resort to his action against the company for refusing to carry him as their contract or their duty requires. But he cannot accept the part that is offered him in lieu of the whole-that is, the transportation without the seat-and at the same time refuse to comply with his own undertakings, in this any more than in another contract. Upon the carrier's neglect or refusal to comply with the terms of the contract of carriage, without a just excuse, the passenger is at liberty to treat the contract as violated by the company, and he may leave the train and sue for a breach of the contract."

1121

1. Vedder v. Fellows, 20 N. Y. 126. Where it is the custom of the company to open the gate through which passengers must pass in order to reach the cars, only a few minutes before the departure of the train, a regulation that renders it necessary for a passenger, who in good faith presents his ticket to the gateman in the same condition as when it was purchased from the ticket agent, to go to the receiver's office and get his indorsement of the ticket when its genuineness is questioned by the gateman, is unreasonable.

before entering the train, and to render it up at any time in the course of his journey, provided a conductor's check is given him in exchange. And he is in like manner bound to deliver it up without receiving such a check, provided the next station at which the train stops is his point of destination.3 But he ought not to be required to part with his ticket without receiving a check or other adequate token of payment of fare at a considerable distance from his point of destination, when there are intervening stations at which the train stops. A carrier may not detain or imprison a passenger who, after the trip is completed, is unable to produce his ticket, as the charge for carriage is a debt which must be enforced by the same remedies that any creditor has against his debtor.5

In some states, statutes have been enacted making a fraudulent evasion of, or attempt to evade, the payment of fare by a passenger, either by giving a false answer to the collector, or by traveling beyond the point to which he has in fact paid, or by leaving the train without having paid, or otherwise, punishable by the forfeiture of a specified sum of money; and, also, in case of a refusal to pay fare authorizing the carrier's police officer, without a warrant to arrest the passenger and remove him to the baggage, or other suitable, car of the train, and confine him there until the arrival of the train at some station where he can be placed in charge of an officer who shall take him to a place of lawful detention.6

Northern Cent. R. Co. v. O'Connor (Md. 1892), 24 Atl. Rep. 449.

1. Chicago, etc., R. Co. v. Boger, I Ill. App. 472; Pittsburgh, etc., R. Co. v. Vandyne, 57 Ind. 576.

2. Northern R. Co. v. Page, 22 Barb. (N. Y.) 130.

3. Illinois Cent. R. Co. v. Whittemore, 43 Ill. 420; 12 Am. Dec. 138.

4. State v. Thompson, 20 N. H. 251. 5. Lynch v. Metropolitan El. R. Co., 90 N. Y. 77; 12 Am. & Eng. R. Cas. 119; 42 Am. Rep. 141.

But it has been held that if it is the custom of carriers by steamboat, to

1122

collect the tickets as passengers are leaving the boat, and a passenger attempts to land without producing a ticket, alleging that it has been lost, the carriers have a right to detain him a reasonable time to inquire on the spot into the circumstances of the case. Standish v. Narragansett Steamship Co., 111 Mass. 512.

6. See Massachusetts Pub. Sts.(1882), ch. 103, §§ 18, 19; ch. 112, § 197. For a construction of these statutes, see Krulevitz v. Eastern R. Co., 143 Mass. 228; Beckwith v. Cheshire R. Co., 143 Mass. 68.