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the conductor and the passenger, “the ticket must be conclusive evidence of the extent of the passenger's right to travel.” There is a class of cases somewhat analogous to those considered, in which, by a uniform course of decisions, it is held that the conductor must accept the statements of the passenger. Those cases in which different rates are charged for one who has procured a ticket and one who pays upon the train. It is held that as a condition precedent to the exercise of this right to charge higher train rates, and to expel one refusing to pay them, a reasonable opportunity should be given by the carrier to the passenger to procure the ticket required, and that one to whom no such opportunity has been afforded, and who for refusing to pay the higher rate is expelled from the train, may recover damages therefor.'

In another case the plaintiff never had any valid ticket or evidence of his right to.ride or travel on the train from which he was expelled. His ticket was not even apparently valid on its face when offered, and is not within the principle or reason of some of the cases cited in support of his contention. That he had paid his fare to his destination, and that the conductor represented that he might stop over at a station, may be admitted, but the ticket he received furnished no evidence of that permission, was inconsistent with it, and when offered it was after the right, according to its terms, had expired to travel upon it. It is not the case of a passenger with a valid ticket entitling him to a ride on the train from which he was ejected, or with such a ticket . as he was required to have, and by some mistake or fault of the conductor wrongly canceled;" or surrendered to the proper agent of the company on demand, and receiving back what the agent believed to be the proper evidence of a riglit to ride on it, and when presented to the other conductor refused, despite the explanations offered;' or where the ticket appears upon its face to be good, although not a regular ticket, but which the ticket agent assures the passenger is sufficient, after his attention has been

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"Forsee v. Alabama G. 8. R. Co. 63 Miss. 66, see ante ş 57. 'Peabody v. Oregon R. & Nao. Co. (Or.) 12 L. R. A. 823. Philadelphia, W. & B. R. Co. v. Rice, 64 Md. 63. *Lake Erie & W. R. Co. v. Fir, 88 Ind. 384; or as in Toledo, 1. & W.R. Co. v. McDonough, 53 Ind. 293.

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recalled to it, and is afterwards refused by the conductor on the train;' or where the plaintiff has paid his fare, and the same conductor to whom he paid it asks for it again, and insists, anless it is paid, that he would put the plaintiff off, and the latter, refusing to pay, is forcibly ejected from the train;" or where the plaintiff was not guilty of any negligence in accepting his ticket, but carefully examined it, saw everything there was on it, and received explanation of the meaning of the punched holes, and assurances that the ticket in the condition in which it was would be good for the trip, and the conductor refused to receive it,' and in some other cases which might be distinguished. It is true the court says in that case that the principle announced in some of the authorities is in conflict with the contention for the carrier, but it seems that the weight of authority and reason, as applicable to the facts in the case stated, is that it is the duty of the passenger to pay his fare or quietly to leave the train when requested, if he has not the proper ticket, and resort to his appropriate reinedy for the damages he has sustained; but that if he attempts to retain his seat without paying his fare, and is expelled by the conductor, he can recover no damages for the injuries incurred by the expulsion. This result will tend to avoid unseemly struggles occurring on railroad trains, usually filled with passengers, including women and children, and thereby prevent breaches of the peace, and at the same time will fully protect the passenger by making the company responsible for all damages resulting from any breach of its contract. It is not disputed that the business of ejecting the traveler is extremely disagreeable to the conductor, and that he uses considerable effort to induce the passenger to pay his fare or peaceably to leave the train, but that the latter not only often insists on being put off by force, but resists with all the force he can command. In the Oregon case the court say that no inference is intended to apply to agents of the company who act wantonly or willfully or maliciously, or that a trespasser upon a train can be treated in a willful, wanton or malicious manner

See IIu fford v. Grand Rapids & 1. R. Co. 53 Mich. 118, 64 Mich. 631.
"See English v. Delaware & I. Canal Co. 66 N. Y. 454.
New York, L. E. & W. R. Co. v. Winter, 143 U. 8. 60, 36 L. ed. 71. Sce

Murdock v. Boston & A. R. Co. 137 Mass. 298.

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$ 62. Point where Passenger may be Removed

from Train. Ordinarily where a trespasser is ejected from a train, snch ejection may be at a place other than at a depot or station, provided the same is done so as not to expose the person to serious injury or danger; and in such ejection the railroad company is not required to have consideration for the mere convenience of the wrong doer.' In the absence of a statute, a carrier is not liable for ejecting a passenger who refuses to pay his fare at a place other than a regular landing place or station. It is held that “A statute providing that if any railway passenger shall refuse to pay his fare he inay be ejected at any usual stopping place, does not prohibit his ejection at any other safe point.”. And it is said by the Supreme Court of Illinois' that the refusal of a passenger to surrender his ticket to the conductor when demanded does not constitute the same offense as the nonpayment of fare; and the statutory provision in that state against the expulsion of passengers for the latter offense, except at a regular station, does not apply to the former case.

A railroad company may expel a passenger from its train, at a place other than a regular station, for the violation of any reasonable rule other than that of nonpayment of fare. When a passenger wantonly disregards any reasonable rule, the obligation to transport him ceases, and the company may expel him from the train, using no more force than may be necessary for such purpose, and not at a dangerous or inconvenient place. This is a common law right, and has been restricted by statute only in cases of nonpayment of fare.

In some states a railroad company in ejecting a passenger for nonpayment of fare must do so at a usual stopping place or near some dwelling house, and where this is the only restriction imposed by statute as to the expulsion of passengers, it applies only to passengers who have not paid their fare. Passengers, for other violations of the reasonable rules of railroad companies, may be ejected at any convenient, safe point that may be selected

'Alchixon, T. & S. F. R. Co. v. Gants, 38 Kan. 608. Magee v. Oregon R. & Nao. Co. 46 Fed. Rep. 734. *Toledo, W. & W. R. Co. v. Wright, 68 Ind. 586, 34 Am. Rep. 277. 'Ilinois Cent. R. Co. v. Whittemore, 43 Ill. 420.


by the officer in charge, no more force being used than is necessary.' But a railroad company has no right to eject a passenger for nonpayment of fare, except at a stopping place, under Utah Comp. Laws, $ 2354, providing that such passenger may be put off the cars at any stopping place the conductor or employé of the company may elect.' Proof that a passenger was put off at a small station where the train stopped is sufficient to show com-. pliance with a statute, requiring an ejection of a passenger to be "at any usual stopping place or near any dwelling house." :

A person riding on a passenger train without a ticket, and who refuses to pay fare, may, under such a statute, be put off the train near a dwelling house which is at the time occupied as a residence, notwithstanding the occupant is temporarily absent and the house closed at the time. A “regular station," within the meaning of a statute prescribing where it shall be unlawful for

passenger to be removed from a train, means the place where passenger trains usually stop for passengers to get on and off, and does not include a place from one quarter to half a mile from a depot platform, even if within the corporate limits of the village or city where such depot is located. Whether a passenger who refuses to pay his fare can be ejected between stations will, in the absence of express statute, depend largely upon the circumstances of each particular case. The right of expulsion for noncompliance with the requirement may be exercised in any suitable place, under all circumstances of the particular case.' And in such case, where a trespasser is ejected from a train, such ejection may be at a place other than a depot or station, provided care is taken not to expose his person to serious injury or danger; but in such an ejection the railroad company is not required to have consideration for the mere convenience of the wrong doer.'

But a railroad company is under a duty to a passenger who was 1 South Florida R. Co. v. Rhoads, 3 L. R. A. 733, 25 Fla. 40. 'Nicho's v. Union Pac. R. Co. (Utah) Sept. 12, 1891. * Wright v. California Cent. R. Co. 78 Cal. 360. * Putry v. Chicago, St. P. M. &0. R. Co. 77 Wis. 218. Illinois Cent. R. Co. v. Latimer, 28 III. App. 552, aff'd in 128 Ill. 163; Ste

phen v. Smith, 29 Vt. 160. Tall v. South Carolina R. Co. 28 S. C. 261. 'Burlington & M. R. R. Co. v. Rose, 11 Neb. 177. & Atchison, T. & 8. F. R. Co. v. Gants, 38 Kan. 608.


thrown on its tracks by the fault of its servant, producing mental incapacity, to take steps to prevent injury to him from the danger it knew he was likely to incur from its trains. The drunken condition of a passenger will not excuse a carrier for negligently leaving him exposed on a railroad track, where he had fallen from a train through the fault of the carrier, and was in consequence dazed and his mental faculties impaired. Where plaintiff was put off the cars in the dark two or three hundred yards from a station where after taking a few steps he fell through the trestle and was injured, a judgment against the company was sustained under a charge that a passenger might be removed from a 'train for want of a ticket “but it must be in a place of safety." But a railroad company is not liable for the killing, by a passing train, of an intoxicated passenger ejected from another train for refusal to pay fare and for misconduct, at a place with which he was familiar and where with ordinary prudence he would have been safe, when he was not so drunk as to be unconscious of the peril attending the passing of trains or unable to take care of himself.' The failure of one ejected from a railroad train to exercise ordinary prudence in leaving the track to reach a position of safety is not excused by his partial intoxication. One ejected from a railroad train is not at liberty to walk upon the track for a greater distance than is absolutely necessary to enable him to reach a position of safety, but is bound to leave the track by any prudent means, although there is no public road in good traveling condition.'

§ 63. Removal while Cars are in Motion. A person cannot lawfully be ejected from a railroad train while in motion, so that his being put off would subject him to great peril. But removing a trespasser from a train of cars while the train is moving very slowly is not negligence or wantonness per

*Cincinnati, I. St. L. & O. R. Co. v. Cooper, 6 L. R. A. 211, 120 Ind. 469. ' Houston & T. C. R. Co. v. Devainy, 63 Tex. 172.

Louisville & N. R. Co. v. Johnson (Ala.) 47 Am. & Eng. R. Cas. 611. Ham v. Delaware & H. Canal Co. 142 Pa. 617. Southern Kansas R. Co. v. Rice, 38 Kan. 398; IIolmes v. Wakefield, 12 Allen,

680; Sanford v. Eighth Ave. R. Co. 23 N. Y. 343.

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