company allow the conductors, by making a memorandum on a ticket, to permit the passenger to stay over and pass upon another train, and one stayed over without procuring such memorandum, it was held that another conductor, to whom he presented his ticket in attempting to pass at a subsequent time, was justified in demanding fare, and putting the passenger off the train upon his refusal to pay.7 5. In one case, where the plaintiff, upon the information of the station-clerk that he might return at a given hour upon an excursion ticket, purchased such ticket and took the train named by such clerk to return, but the train did not pass through; and at the place where it stopped the station-clerk demanded 28. 6d. more, saying he should not have taken that train, payment being refused, the superintendent took the plaintiff into custody: The plaintiff's attorney having written the secretary of the company, asking compensation, he requested to be furnished with the date of the transaction, and promised to make inquiries. He also stated verbally that it was an awkward business, and the blame would fall upon the station-clerk who gave the plaintiff the false information, and offered to return the 28. 6d. It was held that, as there was no evidence of the authority of the defendants to make the arrest, and none of their having expressly or impliedly authorized or ratified it, it must be regarded as the mere tortious act of the servant, for which he alone was responsible. * 6. But in a somewhat similar case, in the Exchequer Chamber, ductors having waived them is no evidence of their repeal unless known to the governing officers of the company. Beebe v. Ayres, 28 Barb. 275. 8 Roe v. Birkenhead, Lancashire, and Cheshire Junction Railw., 7 Exch. 36; 7 Eng. L. & Eq. 546; s. c. 6 Railw. C. 795. And it has been held that a steamboat proprietor might exclude one from his boat, while employed in carrying passengers, if such person was the agent of a rival line of stages to that which, by contract with the proprietor, carried in connection with his boats, the plaintiff's object being, at the time, to solicit passengers to go by the rival line of stages; and the jury having found that the contract was bonâ fide and reasonable, and not entered into for the purpose of an oppressive monopoly, and that the regulation excluding plaintiff was necessary in order to carry the contract into effect. Jencks v. Coleman, 2 Sumner, 221. But a contract not to carry passengers coming by a particular line will not excuse the carrier from carrying such passenger. Bennet v. Dutton, 10 N. H. 481. 9 The Eastern Counties Railway v. Broom, 6 Exch. 314; 2 Eng. L. & Eq. 406; s. c. 6 Railw. C. 743. where the plaintiff below had been taken into custody by a railway inspector of the defendants, charged with having no ticket, refusing to pay fare, intoxication, and assaulting the inspector; at the hearing before the magistrate, the solicitor of the company attended to conduct the proceedings; and it was held that such attendance was no ratification by the company, it not appearing that the facts were known to the company. These cases afford more latitude for corporations to escape from liability for the acts of their agents and servants, while employed in the prosecution of their business, than is commonly allowed in this country.10 7. But there are many cases in this country where it has been held that trespass will not lie against a corporation for the act of their agents; 11 but this is not the prevailing rule here, where the servant acts within the apparent scope of his authority, and where his acts would bind the principal, being a natural person. 8. An English railway company12 having power by statute to make by-laws which were to be painted upon a board and hung up at the stations, and to be binding upon all parties, made, among others, a by-law that "first-class passengers shall be allowed one hundred and twelve pounds, and second-class passengers fifty-six pounds luggage each, and that the company will not be responsible for the care of the same unless booked and paid for accordingly." It did not appear that the plaintiff knew of the bylaw, or that it had been posted up as required. The plaintiff became a passenger, and gave his luggage to the servants of the company, and it had been stolen. It was held that the company were liable, unless they showed the by-law hung up at the stations, as required by the statute, or else brought it home to the knowledge of the plaintiff. * 9. A by-law excluding merchandise from the passenger-trains, and confining its transportation to the freight-trains, was held 10 Post, § 225 and notes. See, also, post, §§ 176, 183. And in Coppin v. Braithwaite, 8 Jurist, 875, it is said to have been ruled by Rolfe, B., at Nisi Prius, that a carrier having received a pickpocket as a passenger on board his vessel, and taken his fare, he cannot put him on shore at any intermediate place, so long as he is guilty of no impropriety. "Philadelphia G. & N. Railw. Co. v. Wilt, 4 Wharton, 143; s. c. 2 Am. Railw. C. 254; Orr v. Bank of U. States, 1 Ohio, 36; Foote v. City of Cincinnati, 9 Ohio, 31. Per Comstock and Brown, JJ., in Hibbard v. N. Y. & Erie Railw. Co., 15 N. Y. 455. "Great Western R. v. Goodman, 11 Eng. L. & Eq. 546. reasonable. The company are not bound to carry a passenger daily upon his paying fare, when his trunk or trunks, contain merchandise, money, and other valuable matter known as "express matter." 13 10. In a very recent case 14 in Connecticut, it was held by a divided court, that where a railway company established and gave notice of a discrimination of five cents between fares paid in the cars and at the stations, the regulation was valid, and that where a passenger refused to pay the additional five cents in the cars, the conductor might lawfully put him out of the cars, using no unnecessary force. Upon the trial of an action for such expulsion, it was held, that the plaintiff was not entitled to recover upon proof, that he went to the ticket-office of the company a reasonable time before the train left, to procure a ticket; that the office was closed, and so remained till the train departed, and that he so informed the conductor, before his expulsion from the cars. *The following propositions are maintained in the opinion of the court: 1. That the defendants, as common carriers, were under no legal obligation to furnish tickets, or to carry passengers for less than the sum demanded, if the fare was paid in the cars. 13 Merrihew v. Milwaukie & Mississippi R. 5 Law Reg. 364. 14 Crocker v. New London, Willimantic & Palmer Railw., 24 Conn. 249. The court were so nearly equally divided in the decision of this case, that it cannot be regarded as much authority, in itself. The leading propositions in the text were maintained, by the Chief Justice and one other judge, and dissented from by two other judges. The only point of doubt seems to be the duty of the company, in making such discrimination, to give reasonable opportunity to passengers to obtain tickets, at the lowest rate of fare, which seems just and reasonable, and in accordance, we believe, with the generally received opinion upon the subject, and the one we should have been inclined to adopt. In Hilliard v. Goold, 34 N. H. 230, it was held, that a uniform discrimination between fares paid in the cars, and at the stations, not exceeding five cents, was reasonable and legal, and a passenger who had not procured a ticket, and refused to pay the additional five cents demanded of him, for fare paid in the cars, was liable to be expelled. Chicago, Burlington, & Quincy Railw. v. Parks, 18 Illinois, 460. And it is here held that where the passenger only pays from station to station, the additional five cents may be required at each payment. The general proposition of the reasonableness of a discrimination between fares paid in the cars, and at the stations, is maintained in State v. Goold, 53 Me. 279. And the passenger is bound by such by-law, whether he knew of it or not, ib. 2. That the plaintiff's claim rested solely upon the assumption, that the defendants had undertaken to carry for the less sum, on certain conditions, which they had themselves defeated. 3. That the regulation did not constitute a contract, but a mere proposal, which they might suspend, or withdraw at any time. 4. That such proposal was withdrawn by closing the defendants' office, and the retirement of their agent therefrom. 5. The proposition being withdrawn, the parties were in the same condition as before it was made; the defendants continuing common carriers were bound to carry the plaintiff for the usual fare paid in the cars and not otherwise. 6. That the plaintiff, refusing to pay such fare, was properly removed from the cars. It was further held by all the judges that if the plaintiff was wrongfully removed from the cars, he might lawfully re-enter them, and if in attempting to do so he received the injury complained of, he was entitled to recover, unless he was himself guilty of some want of care, which produced, or essentially contributed to produce, the injury. But if the expulsion was lawful, or if the plaintiff was guilty of want of care, as stated, he could not recover. The majority of the court also held, that if any of the defendants' employees, which the conductor called to his aid, in putting and keeping the plaintiff off the cars, intentionally kicked the plaintiff in his face, without the knowledge or direction of the conductor, the defendants are not liable for the act, in trespass. But the more reasonable view in regard to the mode of enforcing a discrimination between fares paid in the cars and at the stations is, that such a regulation, however proper in itself, cannot legally be enforced by the company unless they have afforded every proper and reasonable facility to the passenger for procuring his ticket at the station.15 15 St. Louis & C. Railw. v. Dalby, 19 Ill. 353; Chicago, B. & O. Railw. v. Parks, 18 Ill. 460. And in a late case, St. Louis, Alton, & Terrehaute Railroad v. South, 43 Ill., not yet published, it was decided that the foregoing cases are not to be construed, as requiring railway companies to keep open their ticket offices, for the sale of tickets to passengers beyond the time fixed by their established timetables for the departure of a train; but such companies are required to keep open their offices for the sale of such tickets as passengers are required by them to procure, for a reasonable time before the time so fixed for the departure of such train, and not up to the time of its actual departure. They are required to furnish a * 11. There is no question, upon general principles, in an action, or indictment, against the conductor of a railway train, for unlawfully expelling a passenger; where the evidence shows a right to make the expulsion, that the conductor may nevertheless become liable for the manner of doing it. This is a question to be determined by the jury, and cannot ordinarily be decided by the court, as matter of law. If there be an excess of force, or it be applied in an unreasonable and improper manner, the conductor is liable for such excess, to respond in damages to the party, and also to public prosecution, for a breach of the peace.16 12. The authority of the conductor of a railway train, or of any other servant of the company, to enforce their regulations, does not depend upon the formal mode of his appointment, but upon the fact of his being employed at the time in the particular office.16 13. In a late English case, where the railway company had established a by-law requiring all passengers to purchase tickets before entering the cars, and to show the tickets when required so to do, and to deliver them up on request, before leaving the company's premises, and the plaintiff took tickets for himself and three boys and three horses, by a certain train, which was afterwards divided by the company's servants into two parts, one being composed of passenger carriages, and the other of horse boxes; and the plaintiff retained all the tickets and travelled by the first-mentioned portion of the train, so that the boys, who were left to go in the other portion of the train, were unable to produce their tickets when requested, and were accordingly excluded by the company's servants from entering the horse boxes; it was held a breach of contract by the company, for which they were responsible. A convenient and accessible place for the sale of passenger tickets, and afford the public a reasonable opportunity to purchase them, and parties who do not avail themselves of the opportunity must submit to pay the extra fare required by the general regulations of the company, or on refusal, to be expelled from the cars. It was also held in this case, that the right of railway companies to discriminate between fares paid in the cars, and at the stations, was dependent upon the fact that a reasonable opportunity had been afforded for procuring tickets at the lower rate. These doctrines seem to us reasonable and just, and we should be surprised to have them fail of general acceptance by the courts. 16 Hilliard v. Goold, 34 New H. 230. State v. Ross, 2 Dutcher, 224. In this last case the principal evidence of excess was, that the conductor kicked a passenger who, in a state of intoxication, persisted in attempting to get upon the train, and the court held the conviction proper. 17 Jennings v. Great Western Railw., Co. 12 Jur. N. S. 331. |