not insist upon his right to travel on the wrong ticket, or without it, where it has been taken up, and recover damages for the refusal of the carrier to permit him to do so; and that the carrier may lawfully eject him from its train, using no more force than is necessary for that purpose.'

In Frederick v. Marquette, H. & O. R. Co., the plaintiff held an insufficient ticket, caused by the fault of the company's agent in delivering to him a ticket to the wrong station. He asked and paid for a ticket to a given station, and received what he supposed was such ticket, but which on its face was only good to a point short of his destination. In passing upon this question the court observed: "How, then, is the conductor to ascertain the contract entered into between the passenger and the railroad company, where a ticket is purchased and presented to him? Practically there are but two ways,-one, the evidence offered him by the ticket; the other, the statements of the passenger contradicted by his ticket. Which should govern? In judicial investigations we appreciate the necessity of an obligation of some kind, and the benefit of a cross-examination. At common law, parties interested were not competent witnesses, and even under our statutes the witness is not permitted, in certain cases, to testify as to facts which, if true, were equally within the knowledge of the opposite party, and cannot be procured. Yet here would be an investigation as to the terms of the contract where no such safeguards could be thrown around it, and where the conductor, at his peril, would have to accept of the statement of the interested party. I doubt the practical workings of such a method, except for the purpose of encouraging and developing fraud and falsehood, and I doubt if any system could be devised that would so much tend to the disturbance and annoyance of the traveling public generally. As between conductor and passenger, and the right of the latter

'MacKay v. Ohio River R. Co. 9 L. R. A. 132, 34 W. Va. 65; Rose v. Wil mington & W. R. Co. 106 N. C. 168; Frederick v. Marquette, H. & O. R. Co. 37 Mich. 342; Townsend v. New York Cent. & H. R. R. Co. 56 N. Y. 295; Hufford v. Grand Rapids & I. R. Co. 53 Mich. 118; Chicago, B. & Q. R. Co. v. Griffin, 68 Ill. 499. (But see Ohio & M. R. Co. v. Cope, 36 Ill. App. 97.) McClure v. Philadelphia, W. & B. R. Co. 34 Md. 532; Shelton v. Lake Shore & M. S. R. Co. 29 Ohio St. 214; Downs v. New York & N. H. R. Co. 36 Conn. 287; Petrie v. Pennsylvania R. Co. 42 N. J. L. 449; Yorton v. Milwaukee, L. S. & W. R. Co. 54 Wis. 234; Bradshaw v. South Boston R. Co. 135 Mass. 407; Hall v. Memphis &C. R. Co. 9 Fed. Rep. 585.

to travel, the ticket produced must be conclusive evidence, and he must produce it when called upon, as evidence of his right to the seat he claims. Where a passenger has purchased a ticket, and the conductor does not carry him according to its terms, or if the company, through the mistake of its agent, has given him a wrong ticket, so that he has been compelled to relinquish his seat, or pay his fare a second time in order to retain it, he would have a remedy against the company for a breach of the contract, but he would have to adopt a declaration differing essentially from the one resorted to in this case."

In Townsend v. New York Cent. & H. R. R. Co., the court says: "The question in this case is whether a wrongful taking of a ticket of a passenger by the conductor of one train exonerates him from compliance with the regulations on another on which he wishes to proceed upon his journey. I am unable to see how the wrongful act of the previous conductor can at all justify the passenger in violating the lawful regulations upon another train.

The conductor of the train upon which he was was not bound to take his word that he had had a ticket showing his right to a passage to Rhinebeck, which had been taken up by the conductor on the other train. His statement to that effect was wholly immaterial, and it was the duty of the conductor to the company to enforce the regulation, as was repeatedly held by the trial judge, by putting the plaintiff off in case he persistently refused to pay fare. The question is whether, under the facts found by the jury, his resistance in the performance of this duty was lawful on the part of the plaintiff. If so, the singular case is presented where the regulation of the company was lawful, where the conductor owed a duty to the company to execute it, and at the same time the plaintiff had a right to repel force by force, and to use all that was necessary to retain his seat in the car. Thus a desperate struggle might ensue, attended by very serious consequences, when both sides were entirely in the right, so far as either could ascertain. All this is claimed to result from the wrongful act of the conductor of another train in taking a ticket from the plaintiff, for which wrong the plaintiff had a perfect remedy without inviting the commission of an assault and battery by persisting in retaining a seat upon another train, in violation

of the lawful regulations by which those in charge were bound to govern themselves.

The Wisconsin Court of Appeals, in a unanimous opinion delivered by Chief Justice Cole, referring to the case of Townsend v. New York Cent. & H. R. R. Co. says: "The court held that he was lawfully put off the train, notwithstanding the wrongful act of the previous conductor in taking his ticket. The case is well considered, and the opinion by Judge Grover is very instructive. Substantially the same doctrine as to the rights and duties of passengers is laid down in Shelton v. Lake Shore & M. S. R. Co. 29 Ohio St. 214; Downs v. New York & N. H. R. Co. 36 Conn. 287, and McClure v. Philadelphia & W. B. R. Co. 34 Md. 532."1

In Yorton v. Milwaukee, L. S. & W. R. Co., the plaintiff had purchased a ticket to the place of his destination, and asked the conductor for a stop-over ticket, and, through the fault or mistake of the conductor he received a trip or train check instead of a stop-over ticket for which he asked, and which the conductor undertook to give him. The conductor of the second train refused to recognize it for fare, and demanded passage money or a ticket, which being refused, the plaintiff was ejected from the train. The court says: "Then the question arises, Was the plaintiff entitled to ride on a subsequent train, not having the proper stop-over check, or was the second conductor justified, under the circumstances, in putting him off the train when he refused to pay his fare? . He was perfectly justified in ejecting plaintiff from his train when plaintiff had no proper voucher, produced no sufficient evidence of his right to ride thereon, and refused to pay fare, and he himself was ignorant of the transaction between plaintiff and conductor Sherman [the first conductor]. It seems to us there was no other course for him to pursue under the rules of the company, for he was certainly not bound to take the plaintiff's word that he had paid his fare, and that Sherman had made a mistake in not giving him a stop-over check. It is apparent that the right of plaintiff to ride on the train without a proper voucher, and the right of the second

'See Yorton v. Milwaukee, L. S. & W. R. Co. 54 Wis. 239, 6 Am. & Eng. R. Cas. 322.

conductor to eject him for want of said voucher, were inconsistent rights. Each could not co-exist at the same time. Mistake or fault of the conductor in not giving him, on request, such a check, would not give him a lawful right to ride on the second train, though he might require damages against the company for the wrongful act of the first conductor.”

In Bradshaw v. South Boston R. Co., the court says: "It is no hardship upon the passenger to put upon him the duty of seeing to it in the first instance that he receives and presents to the conductor a proper ticket or check, or, if he fails to do this, to leave him to his remedy against the company for a breach of its contract. Otherwise the conductor must investigate and determine the question as best he can while the car is on its passage. The circumstances would not be favorable for a correct decision in a doubtful case."

A railroad conductor may demand a ticket as evidence of a passenger's right of passage, or on failure to produce it may demand payment of fare; and on failure to pay it may lawfully eject the passenger from the train, using no more force than necessary. If a passenger pay a railroad agent fare for a certain trip, and by mistake of the agent is given a ticket not answering for that trip, but one in an opposite direction, and the conductor refuses to recognize such ticket, and demands fare, which the passenger fails to pay, ejection of the passenger from the train without unnecessary force will not be ground of action against the company as for a tort, but the action may and must be based on the breach of the contract to convey the passenger.'

A passenger from whom an illegal or extortionate fare is demanded cannot recover from the carrier for his ejection for nonpayment in the absence of wanton or malicious conduct on the part of the latter or its employés, when he is able to pay such

MacKay v. Ohio River R. Co. 9 L. R. A. 132. 34 W. Va. 65. See also Mosher v. St. Louis, I. M. & T. R. Co. 23 Fed. Rep. 326; Hall v. Memphis &C. R. Co. 15 Fed. Rep. 57; Petrie v. Pennsylvania R. Co. 42 N. J. L. 449; Atchison, T. & §. F. R. Co. v. Gants, 38 Kan. 618; Chicago, B. & Q. R. Co. v. Griffin, 68 Ill. 499: Shelton v. Lake Shore & M. S. R. Co. 29 Ohio St. 214; Louisville, N. & G. S. R. Co. v. Fleming, 14 Lea, 128; Pennsylvania R. Co. v. Connell, 112 Ill. 295; Prince v. International & G. N. R. Co. 64 Tex. 146; Hufford v. Grand Rapids & I. R. Co. 53 Mich. 118; Downs v. New York & N. H. R. Co. 36 Conn. 287; Jerome v. Smith, 48 Vt. 230.

fare, but elects to be ejected rather than do so.' Where a passenger paid for three tickets, but through mistake the ticket agent only gave him two, which he gave to two persons with him, it was held he must pay his fare or the conductor would be justified in removing him from the train. And the same is true where the ticket agent through mistake gives the passenger a ticket for a shorter distance, although he paid for a ticket to a point beyond. A railroad company is not liable for ejecting a passenger from its train who fails to produce a ticket and refuses to pay fare, under the honest belief that a ticket previously surrendered called for transportation to a further station, when the train employés acted in good faith and used no violence.*

Evidence that plaintiff and another boarded a railroad train without purchasing tickets, offered the conductor an insufficient sum for the passage of the two, and, upon his understanding that they wished to pay three fares and so stating and demanding the additional sum required, refused to pay such amount, and did not explain or offer the proper sum, but voluntarily got off the train at the conductor's request, and walked back half a mile to the station at which they boarded the train-will not sustain a judg ment for damages for illegal ejection from the train. A conductor is justified in ejecting a passenger who was unable to purchase a ticket at the station where he boarded the train because of the temporary absence of the agent in attending to his duties, and who willfully and captiously refuses, until after the train has been stopped for the purpose of ejecting him, to comply with a regulation of the company requiring passengers without tickets to pay extra and accept a rebate check."

§ 61. Denial of Such Conclusiveness, in Case of Error through Carrier's Negligence.

In a recent case,' the contention for the plaintiff was that when he paid his fare from Portland to Grant's, upon the representa1Magee v. Oregon R. & Nav. Co. 46 Fed. Rep. 734.

Weaver v. Rome, W. & O. R. Co. 3 Thomp. & C. 270. 8 Frederick v. Marquette, H. & O. R. Co. 37 Mich. 342. 'Atchison, T. & S. F. R. Co. v. Long, 46 Kan. 260. Eddy v. Elliot (Tex.) Nov. 29, 1890.

Harrison 7. Fink, 42 Fed. Rep. 787.

Peabody v. Oregon R. & Nav. Co. (Or.) 12 L R. A. 823