tion and promise of the conductor that he could stop over at The Dalles and ride upon the next train, and the conductor delivered to him a drawback check with a receipt for the money indorsed on the back thereof, and that, in pursuance of such agreement and promise, he, having stopped over, and then gone upon the second train without notice of any contrary regulation until after he commenced his journey, was not compelled to pay fare or leave the train, but that he was lawfully there, and might stand upon his rights, and, if wrongfully ejected by the conductor, he could recover damages for any injuries which he suffered in consequence of such ejection. Upon the facts there is no doubt but that the plaintiff had no knowledge of the rules or regulations of the company, and, as the agreement for a ticket with the right to stop over was made before the ticket was delivered, the plaintiff cannot be deemed to have assented to any part of the contract expressed by the ticket different from that made with the conductor. As he wished to make his journey over the road on different trains to accommodate his business engagements, the conductor must be supposed to have known what the rules and regulations required in respect to the matter upon which he desired informa tion. He was the person appointed by the company to impart the information asked, and to sell and deliver to him a ticket as evidence of his right to ride. This agent assures him that he can pay his fare to Grant's Station, and that he can stop over at the place designated, and the plaintiff relying upon his representations, pays his fare. His ticket is not delivered to him immediately for want of change, and not until some twenty minutes after his contract or understanding of permission to stop over was made, showing that he parted with his money in reliance upon the contract made or permission given, and not upon a ticket which he had not seen, expressing different terms, or terms inconsistent with his right to pursue his journey upon the next train. When the ticket was delivered to him, supposing that it is sufficient or that the conductor whose duty it was to furnish it would deliver one conforming to their engagement, and relying upon his contract as made, he puts the ticket into his pocket without observing its terms, or that it expressly limits his right to ride on that day and train only, and stops over at The Dalles; and when

he commences his journey on the next train, and his ticket is demanded of him, he is informed by the conductor that it is insufficient, when he explains to him the contract he made with the other conductor, and that he is on that train in pursuance of his assurances and contract, but the second conductor refuses to receive his explanations, and demands of him the payment of his fare, or the alternative of leaving the train, both of which he refuses to do, claiming that he is lawfully upon the train, and resisting with force his expulsion from it. Under such circumstances, the plaintiff contends that the contract established the relation of passenger and carrier, and, if the ticket furnished by its agent was insufficient to notify the second conductor of his right to travel on that train, that it was the negligence of the other conductor, and that he, being without fault, had a lawful right to travel on that train, and might resist his ejection, and, if ejected, he could recover damages for any injury which he suffered by reason of such ejection. There are numerous authorities which to a greater or less extent seem to favor that view. It is said that a passenger upon a railroad is not required to examine his ticket after its receipt from the ticket agent, except under special circumstances; but the responsibility is upon the company to give the ticket applied for.'

2

Perhaps as strong a case as any is one from Georgia, which was an action in tort for the expulsion of the plaintiff from the cars of the defendant. By some negligence of the company's agent the plaintiff's ticket was not stamped or signed as required by the conditions of the ticket and the regulations of the company. He presented the ticket for his fare, but it was refused by the conductor, and for his expulsion the court held that he could recover "his proper damages of all sort," and among other things saying: "The company could no more be heard to say that an error was committed by its agent, resulting in a breach of duty on its part to the plaintiff, than it can be heard to say that an error was committed by its own action. . . . He [the plaintiff] had a right to assume that all these agents understood their duties and would perform them; and, if he performed his, he

Georgia R. & Bkg. Co. v. Dougherty, 86 Ga. 744.

Head v. Georgia Pac. R. Co. 79 Ga. 358.

could stand upon his contract, and upon his relation as a passenger which the contract generated."

In a recent Maryland case,' the plaintiff had gone upon one of the trains of the company with a proper ticket, and the conductor canceled it by mistake, but afterwards attempted to correct it, and assured the plaintiff that it would be all right, and that he could ride upon it on the next train in that condition. It was not properly corrected, and when the plaintiff went upon the returning train and presented the ticket the conductor refused to take it, and the plaintiff, refusing to pay his fare or leave the train, was expelled therefrom. The court says: "The return coupon was canceled through the mistake of the conductor. This error he attempted to correct, and informed plaintiff that it was all right. The latter had a right to rely on this assurance, and that the ticket for which he paid his money entitled him to return to Wilmington. If the servants of the appellant, under such circumstances, laid their hands forcibly upon the plaintiff, and compelled him to leave the car, there was not merely a breach of contract on the part of the company, but an unlawful interference with the person of the plaintiff and an indignity to his feelings for which an action will lie, and for which he is entitled to be compensated in damages. Such is the well settled law of this state and of this country. The mistake by which plaintiff's ticket was canceled was the mistake of the appellant's servants, and it must abide the consequences." The ticket being regular on its face, and the infirmity being only in its not conforming to the carrier's special regulation, and this inconsistency being caused by the carrier's agent, it cannot affect the passenger, it is said."

Notwithstanding the former rulings of the Supreme Court of Illinois, the appellate court of that state has felt at liberty to rule that a railroad company cannot refuse to accept a defective ticket for passage, where the defect is due to the carelessness of its agents.

The appellate court in Indiana has held that a passenger unable

'Philadelphia, W. & B. R. Co. v. Rice, 64 Md. 63.

'See Hofford v. Grand Rapids & I. R. Co. 53 Mich. 118; Murdock v. Boston & A. R. Co. 137 Mass. 293.

Ohio & M. R. Co. v. Cope, 36 Ill. App. 97.

to procure a ticket, through the fault of the company, may take passage on the train, and, upon a tender of the ticket fare, will be entitled to all the rights and privileges that a ticket would afford him. One who has already paid his fare is under no obligation to make further payment in order to avoid being ejected from the train, and then seek redress against the carrier for the excess of the fare.' And the Supreme Court of that state has decided that a passenger having a right to be carried on his ticket, is entitled, if wrongfully ejected, to recover the damages sustained,. although he might have paid his fare rather than be ejected, and recover such damages as he sustained thereby.'

In England a by-law of a railway company providing that every passenger shall show his ticket when required, and on failure to ⚫ do so shall be required to pay fare, does not authorize his expulsion from the train for failure to pay fare or produce his ticket, at least where he had purchased a ticket and lost it accidentally. Whether a by-law expressly authorizing his expulsion in such a case would be reasonable,-quare.

A railroad company is liable for the ejection from its train of a passenger who by mistake of its agent has been given a ticket different from that asked for, but whose trunk has been checked to the proper destination, and who informs the conductor of the circumstances and of her inability to pay her fare to her destina_ tion. A passenger who has been furnished an improper ticket by the negligence of the ticket agent may sue in tort for damages from being put off the train upon his failure to pay the fare demanded, for the reason that his means were exhausted." A conductor of a railroad train, who has invited a passenger to ride to a station beyond that mentioned in his ticket, with full knowledge of the facts upon which the latter claimed the right to be carried to such further station, has no right to eject him for refusal to pay the fare thereto from the station named in the ticket.

6

Refusal of a conductor to accept a ticket which has been hon1Chicago, St. L. & P. R. Co. v. Graham (Ind. App.) 11 Ry. & Corp. L. J. 57. Pennsylvania Co. v. Bray, 125 Ind. 229.

Butler v. Manchester, S. & L. R. Co. L. R. 21 Q. B. Div. 207.

*Georgia R. & Bkg. Co. v. Dougherty, 86 Ga. 744.

'Pouilin v. Canadian Pac. R. Co. 47 Fed. Rep. 858.

'Hardy v. New York Cent. & H. R. R. Co. 34 N. Y. S. R. 902.

ored by the conductors of preceding divisions, and which was accompanied by a telegram from the head office requiring it to be honored until further instructions, merely because of a mistake on the part of the ticket agent in punching it, and his ejection of the passenger, render the company liable for damages. While a regulation of the company requiring conductors to reject tickets appearing to be altered may be reasonable and the conductor be justified, yet if the appearance of the ticket was due to a mistake of the ticket agent, the company will be liable for the refusal of the conductor to allow the passenger to travel.*

In a recent case in Michigan, the plaintiff had applied and paid for a ticket from Manton to Traverse City. The agent gave him a ticket previously issued for a ride from Sturgis to Traverse City. There was evidence tending to show that the ticket had been canceled by conductor's marks for a ride between Sturgis and Walton, and the trial court instructed the jury that "if they believed the ticket was punched, indicating to the conductor by the punch-mark that it had been used before between Grand Rapids and Walton, that would be evidence of an infirmity in the ticket, and the plaintiff would not be entitled to insist upon that ticket being received." This instruction was held to be erroneous, the court saying, "When the plaintiff told the conductor on the train that he had paid his fare, and stated the amount he had paid to the agent who gave him the ticket he presented, and told him it was good, it was the duty of the conductor to accept the statement of the plaintiff until he found out it was not true, no matter what the ticket contained in words, figures or other marks."

993

The most remarkable thing about this decision is that it was made in the same case, upon the same facts, and between the same parties as that reported in 53 Mich. 118, in which in an opinion delivered by Judge Cooley, it was held that, as between 'Johnson v. Northern Pac. R. Co. 46 Fed. Rep. 347.

McGinnis v. Missouri Pac, R. Co. 4 West. Rep. 797, 21 Mo. App. 399. Hufford v. Grand Rapids & 1. R. Co. 64 Mich. 631. See also Toledo, W. & W. R. Co. v. McDonough, 53 Ind. 289; Burnham v. Grand Trunk R. Co. 63 Me. 298; Hamilton v. Third Ave. R. Co. 53 N. Y. 25; Palmer v. Charlotte, C. & A. R. Co. 3 S. C. 580; Lake Erie & W. R. Co. v. Fix, 88 Ind. 381; English v. Delaware & H. Canal Co. 66 N. Y. 454; Tarbell v. Northern Cent. R. Co. 24 Hun, 53.