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A passenger who by refusal to pay fare has relieved the railroad company of its obligation to carry him cannot reimpose such obligation on the company by making tender of the sum due after having refused it and put the company to the performance of acts necessary to his safe and proper expulsion.'

Whenever a passenger refuses to accede to a just and lawful demand made upon him by the conductor for the payment of his fare, after being allowed reasonable time and opportunity to comply, he renounces his right to the position and the privileges of a passenger, and subjects himself to expulsion from the train. If he changes his mind, and tenders the fare before anything is done towards bringing the train to a stop in order to eject him, his refusal will be retracted in time, and his right to remain and be carried will stand unaffected. If he haggles and hesitates until he becomes a proper subject for ejection, and until steps have been taken to that end, he is too late. Any rule which would allow one passenger to play fast and loose with the conductor would allow all the passengers to do so, and a train might thus be kept halting and alternating between running at ordinary speed and stopping throughout the whole of its journey; and to this embarrassment not only one train, but every train run for the carriage of passengers, would be exposed.”

It is certainly improper conduct for a passenger to delay the payment of his fare beyond the time when he ought to pay it, and a regulation that he shall pay on demand of the conductor is reasonable, and so necessary for the orderly conduct and transaction of business that it may fairly be presumed to be a regulation which all railway companies carrying passengers adopt and expect to enforce. This method of dealing with passengers who travel by railroad is so universal as to be a matter of general public observation and experience, and we apprehend that it would be a very rare instance in which a passenger would be surprised to find it in use. In a recent case, the passenger, when called upon, did not object to paying promptly what he admitted to be due. In fact, he put into the hands of the conductor money more than Atchison, T. & 8. F. R. Co. v. Droelle. 44 Kan. 391; Pickens v. Richmond &

D. R. Co. 104 N. C. 312; Harrison v. Fink, 42 Fed. Rep. 787. *See the observations of Denio, J., in Hibbard v. New York & E. R. Co. 15

N. Y. 455.

sufficient for the payment of his fare at the higher rate, and a discussion arose as to whether payment should be made at the ticket rate or at the train rate, in consequence of which none of the money was retained, but all of it was returned. The passenger contended for the ticket rate, upon the ground that he tried to get a ticket, and that the agent was not at his place. The conductor insisted upon the higher rate, which was the usual and legal one exacted of passengers who had not procured tickets. According to the judgment of the court, the right of the plaintiff to remain upon the train and be carried on payment or tender of the ticket rate should depend alone upon the fact whether the nonattendance of the ticket agent at the office, or any other fault or default of the company, was the true reason why the plaintiff was not supplied with a ticket. If his failure to have it was due to his own neglect, or to any cause not chargeable to the company, its agents or employés, the tender of the ticket rate had no relevancy whatever to the right of the plaintiff to be carried, or to shun ejection from the cars. He might as well have tendered nothing as not enough. On the other hand, if it was the company's omission or fault that prevented the plaintiff from having a ticket, the conductor had no right to demand the payment of fare at a higher than the ticket rate; no right to reject that rate when tendered; and after its tender he could not lawfully expel the passenger for not complying with his unlawful demand of payment at a higher rate. This test of the respective rights of the passenger and carrier the court concludes rests upon the actual state of facts, and not upon mere belief or good faith either of the passenger or of the conductor. It requires them to know their respective rights, and to act accordingly. A passenger always knows why he fails to obtain a ticket. A conductor represents the company, and, if the company has failed in any of its duties to afford passengers opportunity to obtain tickets, he should be so informed. If the company will not allow him to take the word of the passenger, it must adopt, it was said by the court, some other means of informing him; as, for instance, requiring him to ascertain at each station, before leaving it, whether the ticket office has been properly kept open, and attended for the sale of tickets or not. What the company, by any of its proper

agents or employés, knows on that subject, the conductor, as representing the company on the train, may be, it is held, presumed to know, and this presumption, as a general rule, should be treated as conclusive. The respective legal rights of the parties being such, can those rights be changed by either without the consent of the other? It is said to be clear that they cannot. Either may waive his own rights, but neither can compel any waiver by the other. If the passenger has the necessary state of facts tò back him, nothing which the conductor can do will justify his expulsion. So, if the conductor, on the other hand, has at his back, the necessary state of facts, he may enforce the rule of expulsion over any tender whatever which the passenger may make after steps have been rightfully taken to stop the train in consequence of the refusal to pay. This, it is said, applies only to instances occuring between stations, and where the sole reason for stopping the train is to effect expulsion. The sum of the matter is that a passenger cannot force a railroad company to reject him as a patron, and then force it, by making a tender which he ought to have made before, to cancel the rejection, and perform service the same as if there had been no failure to agree originally.' After the ejection of a passenger for factious refusal to pay fare he has not the right to pay and continue his passage on that trip. This is true although the stop is within the limits of the ordinary stopping place of the train. The same rule applies even before the ejection if the train has stopped for the express purpose of ejecting the passenger. But where the train has stopped at a regular stopping place an offer to pay fare before a passenger is ejected must be accepted. Yet even if the place where a train is stopped is a regular station at which tickets are sold, if the particular train on which a passenger is traveling would not have stopped there except for the purpose of expelling him he is not entitled to prevent his expulsion and continue his passage on that

"Georgia S. & F. R. Co. v. Asmore (Ga.) 16 L. R. A. 53. * Pease v. Delaware, L. & W. R. Co. 11 Daly, 350; People v. Jillson, 3 Park.

Crim. Cas. 234. * Cincinnati, 8. & O. R. Co. v. Skillman, 39 Ohio St. 445; Hibbard v. Nou

York & E. R. Co. 15 N. Y. 455; O'Brien v. Boston & W. R. Co. 15 Gray, 20, 77 Am. Dec. 347; Hoffbauer v. Delhi & N. W. R. Co. 52 lowa, 342, 35

Am. Rep. 278. "O'Brien v. Ver York Cent. & H. R. R. Co. 80 N. Y. 236.

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train by tender of fare after the train is stopped.' A passenger who has refused to pay fare may change his mind and pay while the train is stopped at a station although the conductor has commenced to put him off, if he has not compelled the conductor to stop the train for that purpose or to resort to extreme measures, as for instance by force to pull him from his seat.' A valid ticket which a passenger had kept back and not shown until after he was ejected at a station for refusal to pay fare and insisting on his right to ride on a worthless ticket, will not entitle him to reenter the train.'

A passenger is not entitled to readmission to a train from which he has been ejected for nonpayment of fare by reason of a ticket which he purchases at the place where he is ejected, at least without paying fare for the distance already ridden.'

The rules above laid down are not without some limitations as clearly shown in the case last stated in the text. Thus it is said that to bring a case within the rule that a person is not entitled to pay when being put off the train after refusal to pay fare, there must be a willful or at least a positive refusal to pay proper fare." So the rule that a passenger who has refused to pay

his fare cannot pay after ejection or after the train is stopped to eject him and thus claim the right to continue on that train, it is said ought to be limited to willful violation of his duty to pay.'

A conductor is bound to receive fare from a third person if offered before the ejection of a passenger who has no ticket or money, whom he is about to eject for nonpayment of fare.' A New York case lays down the same rule, at least where the train is stopped at a station." Where a conductor hastily pulls the bell and takes steps to eject a passenger who honestly disputes the correctness of the amount demanded, without giving the pas-senger reasonable time to consider, he must accept a tender of *Pickens v. Richmond & D. R. Co. 104 N. C. 312; O'Brien v. New York Cent.

& H. R. R Co. 80 N. Y. 236; Nelson v. Long Island R. Co. 7 Hun, 140. ? Gould v. Chicago, M. & St. P. R. Co. 18 Fed. Rep. 155. 3 State v. Campbell, 32 N. J. L. 309. *Stone v. Chicago & N. W. R. Co. 47 Iowa, 82, 29 Am. Rep. 458. 5 Texas & P. R. Co. v. Bond, 62 Tex. 442, 50 Am. Rep. 532. 6 Louisville, N. & G. S. R. Co. v. Harris, 9 Lea, 180, 72 Am. Rep. 668. * Louisville & N. R. Co. v. Garrett, 8 Lea, 438, 41 Am. Rep. 640. Guy v. New York, O. & W. R. Co. 30 Hun, 399.

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fare offered thereafter.' The same rule applies where the passenger is obliged to borrow money to pay the extra fare. He is entitled to a reasonable time for that purpose. In California it is decided that a tender by a passenger of the remainder of his fare is in time although the train has stopped for the purpose of ejecting him, where the money which he had already paid to the conductor had not been returned to him."

It has been held that a condnctor is not bound to receive fare after a train is in motion, from a passenger who has been ejected for nonpayment of fare, but it is said that he ought to do so if tendered while the train is not in motion or before the passenger is actually ejected.' This last statement it will be seen is not in accord with most of the decisions cited.

If received again as a passenger, he must pay from the starting point and not simply from the point of ejectment. But if he has paid to the place of removal, he may then claim the right to pay. And he may do this at any regular station on payment of amount already due the company and the additional fare to the place of destination. If there has been no violence or willful misconduct the passenger may re-enter at a regular station, otherwise he cannot.

Plaintiff purchased an excursion ticket to and from New Orleans from defendant's ticket agent at Birmingham. He obtained it at reduced rates, but on certain conditions as to its use, which were printed on the ticket, and subscribed by him. Plaintiff testified that he had read the conditions. Among them are the following: “In consideration of the reduced rate at which this ticket is sold, I, the undersigned, agree with the Louisville & Nashville Railroad Company as follows: That on the date of my departure, returning, I will identify myself as the original purchaser of this

* Texas & P. R. Co. v. Bond, 62 Tex. 442, 50 Am. Rep. 532. "Curl v. Chicago, R. 1. & P. R. Co. (Iowa) 11 Am. & Eng. R. Cas. 85. *Bland v. Southern Pac. R. Co. 55 Cal. 570, 36 Am. Rep. 50. 4 South Carolina R. Co. v. Nix, 68 Ga. 572. > Stone v. Chicago & N. W. R. Co. 47 Iowa, 82; Southern Kansas R. Co. v.

Hinsdale, 38 Kan. 507. Chicago, B. & Q. R. Co. v. Bryan, 90 Ill. 126. *Slone v. Chicago & N.W. R. Co. 47 Iowa, 82. But see Louisville, N. & G.

S. R. Co. v. Harris, 9 Lea, 180. "Gould v. Chicago, M. & St. P. R. Co. 18 Fed. Rep. 155.

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