FOOTNOTES:
[313] Great Northern Rw. v. Shepherd, 8 Ex. 30.
[314] Jordan v. Fall River Rw., 5 Cush. 69.
[315] Orange County Bank v. Brown, 9 Wend. 85; Weed v. Saratoga & Sch. Rw., 19 Wend. 534; Duffy v. Thompson, 4 E. D. Smith, 178.
[316] Osborn v. Gillett, L. R., 8 Ex. 92.
[317] Deedes v. Graham, 20 Grant, 258, 270.
[318] Grant v. Newton, 1 E. D. Smith, 95; Chicago and Aurora Rw. v. Thompson, 19 Ill. 578.
[319] Red on Railways, vol. ii., pp. 56-58.
[320] Camden & Amboy Rw. v. Baldauf, 16 Penn. St. (4 Harris), 67; see also Walker v. Jackson, 10 M. & W. 161, as to not inquiring contents, and Crouch v. L. & N. W. Rw., 14 C. B. 255, as to right to inquire.
[321] Butterworth v. Brownlow, 34 L. J. C. P. 267.
[322] Gibbon v. Paynton, 4 Burr. 2298.
[323] Clay v. Willan, 1 H. B. 298.
[324] Bradley v. Waterhouse, 3 C. & P. 318.
[325] Batson v. Donavan, 4 B. &. Ald. 37.
[326] By it no carrier is liable for loss or injury to any articles of great value in small compass, or for money, bills, notes, jewelry, etc., above £10, unless the value and nature of the property has been declared, and an increased charge paid for it.
[327] Woodard v. Eastern Counties Rw., 7 Jur. (N. S.), 971, 4 L. T. (N. S.), 336; Downs v. N. Y. & N. H. Rw., 36 Conn. 287.
[328] Railway Act (Can.) 1868, § 20, s. 12.
[329] The Railway Act 1868, § 20.
[330] Jennings v. Gt. N. Rw., L. R., 1 Q. B. 7.
[331] Farewell v. G. T. R., 15 U. C. C. P. 427.
[332] Duke v. Great Western Rw., 14 U. C. Q. B. 377.
[333] State v. Thompson, 20 N. H. 250.
[334] N. R. Rw. v. Paige, 22 Barb. 130.
[335] Briggs v. G. T. Rw., 24 U. C. Q. B., 510; Dietrich v. Penn. A. Rw., 8 C. L. J. (N. S.), 202; McClure v. Phil., Wil., & Balt. Rw., 34 Md. 532; Boice v. Hudson R. Rw., 61 Barb. 611; Cunningham v. G. T. R., 11 L. C. Jur. 107; Cheney v. Boston & M. Rw., 11 Met. 121; Elmore v. Sands, 54 N. Y. 512.
[336] Cheney v. Boston & Maine Rw., 11 Met. 121.
[337] State v. Campbell, 3 Vroom, 309.
[338] Pier v. Finch, 24 Barb. 514.
[339] McClure v. Phil., Wil., & Balt. Rw., 34 Md. 532.
[340] State v. Overton, 4 Zabriskie, 438: Cincinnati, Columbus, & C. Rw. v. Bartram, 11 Ohio St. (U. S.), 457.
[341] Brooke v. Grand Trunk Rw., 15 Mich. 332.
[342] Hamilton v. N. Y. C., 51 N. Y. 101.
[343] Craig v. Great Western Rw. Co., 24 U. C. Q. B. 504; Boston & Lowell Rw. v. Proctor, 1 Allen, 267; Shedd v. Troy & Boston Rw., 40 Vt. 88.
[344] Dietrich v. Penn. A. Rw. Co., 8 C. L. J. (N. S.), 202.
[345] Smith v. G. T. R., 35 Q. B. (Ont.), 547, 557.
[346] Duke v. Great Western Rw. Co., 14 U. C. Q. B. 377.
[347] Standish v. Narragansett St. Co., 111 Mass. 512.
[348] 12 U. C. C. P. 89.
CHAPTER IX.
PRODUCING TICKETS, OR EVICTION.
Carried past.—Jumping off.—Junctions.—Cave Canem.—Conductors refusing Change.—Fighting in the Cars.—Conduct of Passengers.—Ladies’ Car.—Turned out in the Dark.—No Seats.—Colored Persons.—Tickets lost and found too late.—Conductor’s Conduct.—Damages for Wrongful Ejectment.—Go quietly.—Companies heavily Mulcted.—By-law as to producing Tickets.—A Lover, his Mark.—Getting off for a Moment.
Fortunately for my friend the attention of our fellow travellers was drawn away from him by the language, more forcible than elegant, of a man who had been carried past a small way-station at which he desired to alight, and for which he had a ticket. He vowed vengeance against the company because the train was not stopped and a reasonable opportunity given him to alight, and threatened loudly to sue the company for the damage which, he said, he would inevitably sustain through his non-delivery at his destination. And no doubt he would be successful, judging from authorities, in recovering compensation for the inconvenience, loss of time, and the labor of travelling back to the haven where he would be, because these are the direct consequences of the wrong done him.[349] One Hobbs, and Betsy his wife, with two juveniles, once took a midnight train homeward bound; they were landed, however, at another village, some miles off from their house; it was so late that they could neither get a conveyance, nor yet accommodation at an inn, and so all had to walk home through a drizzling rain. Betsy took cold and was laid up for some time, and the jury gave a verdict of £28 in their favor; £8 for the personal inconvenience, the balance for the wife’s illness and its consequences. The court considered that Hobbs was entitled to the £8, but not to the rest, the sickness being too remote a consequence of the breach of contract.[350] This was in England, but in Mississippi where a man, subject to rheumatism, got carried past his station and had to walk back in the rain, whereupon his old enemy attacked him, it was decided that he might get satisfaction out of the company.[351] The ticket must always be taken to be the contract between the passenger and the company for the special purpose, and upon the terms which are contained in it,[352] and when the company has issued a ticket to a particular place they are bound to stop there, and it is not enough merely to slacken off steam;[353] but, without special agreement, one cannot insist upon a train stopping at a place where they do not usually delay.[354]
Somebody—not a Solomon—asked the man why he had not jumped off; he sensibly—considering he was in a passion—replied:—
“If I had been so foolhardy as to jump off while the train was in motion, without doubt, many a court in the land would hold that I did it at my own risk, and, if hurt, could coolly tell me that for my gross imprudence I had nobody but myself to blame,[355] if, however, they had stopped but for a moment, I would have run the risk of being injured by their starting before I was quite off, for then they would have been liable,[356] and I would have done so if the train had been moving slowly.”[357]
“But,” said my legal luminary to me, sotto-voce—for he was afraid to draw attention to himself again—“if a passenger is induced to leap from a car under the influence of a well-grounded fear of a collision that would be fatal to limb or life, it seems to be regarded as well settled that he may recover against the carriers, even though he would not have been hurt in the slightest degree, had he philosophically remained quiet.”[358]
Another man wanted the conductor to stop the train because he had just discovered that he was on the wrong track; but this favor was refused, and the stupid fellow had to pay the full fare to the next stopping-place.[359]
By this time we had reached the Junction, and friend Smith and myself and several other persons got out to take the cars of the one or the other of the two other companies whose lines here cross. The stations of the three companies are all open to each other, and the passengers of each pass directly from the one to the other, “no pent up Utica contracts their powers” of pedestrianism, the whole area being used as common ground by the travellers on all three roads. While here, a porter of the B. and E. Co., who was trundling a track laden high with luggage, let a portmanteau fall off and injure the toes of one of our fellow-travellers who was on the part of the platform owned by the B. and E. Rw. Co. on his way to the terminus of the other line. (I afterwards heard that the court held that the negligence being an act of misfeasance by the servant of the company in the course of his employment, the maxim respondeat superior applied, and that the company were liable; but the judges doubted whether the railway would have been responsible supposing the man had been injured from the state and condition of the platform, as he had no business on it.)[360]
As I was trudging along an ugly dog of the cur tribe, with a noli me tangere expression of countenance, dashed past me and rushed up to an innocent-looking individual, seizing him violently by the posterior part of the most indispensable portion of a man’s attire, and judging from the row the fellow kicked up, by something more sensitive than pantaloons as well: shaking vigorously, the dog detached a piece of cloth and drew a little blood. The victim had a heavy stick in his hand, and the little doggy’s lively career was stopped then and there. I remarked to the man, “My friend, if you find out that that unfortunate puppy belonged to the company or to any of their servants, sue them for damages; if not, don’t trouble yourself to do so unless you can show that they were able to dispose of the fractious animal and did not do it.”[361]
Shortly after we were again under way a little excitement was occasioned by an altercation between the conductor and a man who had not fully made up his mind (whether owing to the magnitude or insignificance thereof, we cannot say) how far he intended to ride, and so did not wish to settle for the present. The strife of tongues waxed warm, and the sound of the conflict rose high above the rattle and the din of the train.
The conductor said that if he did not at once pay the fare to some place or other he would have the pleasure of walking there. The man still hesitated, so the official pulled the check-rope, and on the stoppage of the train proceeded to eject the traveller, who at the last moment tendered a $20 gold piece, and told the conductor to take the fare to the next station (some $1.35). The latter declined now to receive the money, and put the man off, leaving him alone in his glory, breathing curses loud and deep.[362] Doubtless the official was justified in so doing, as in a somewhat similar case the court said that even an officer at a ticket office might reasonably object to an offer of a $20 gold piece to pay a fare of $1.35, on account of the trouble and risk involved: and that a person rushing into the cars without a ticket has no reason to expect that he will find the conductor prepared to change a $20 gold piece, for he relies upon receiving tickets from the passengers, or, if money be paid to him instead, he expects that it will be paid with reasonable regard to what is convenient under the circumstances.[363]
I may as well inform the general public here, that it is considered a reasonable condition for railway companies to require passengers to procure tickets before entering the train.[364]
My friend was just beginning to dilate upon the subject of ejecting passengers, when his voice was drowned by a crash, a scream, and a general uprising of our fellow-travellers. I verily thought within myself that there was a collision—that we were off the track—that—that—that, I don’t know what I did not think in the few moments that elapsed before I saw that it was only a fight between some men who had been indulging deeply in that cup which inebriates and brutalizes as well as cheers. The conductor soon arrived and quelled the disturbance. In this case, fortunately, it was not necessary—as it may sometimes be—for him to stop the train, call to his aid the engineer, the firemen, brakesmen and bellicose passengers, and leading the way himself—like some valiant knight of the Middle Ages—expel the disturbers of the peace, or else show by an earnest experiment that to do so was impossible.[365] If this latter contingency were to happen, the conductor must either discontinue the trip, or give the other passengers an opportunity of leaving the cars; otherwise the company will be responsible for the acts of the rioters.[366] A conductor is not bound to wait until some act of violence, profaneness, or other misconduct has been committed before exercising the power reposed in him of excluding or expelling offenders.[367] Of course he is never bound to receive passengers who will not conform to reasonable regulations, or who from their behavior, state of health or person, are offensive to the other travellers.[368]
Carriers of passengers are just as responsible for the misconduct of their living freight as they are for the mismanagement of the train. They must exercise the utmost vigilance in maintaining order—that first of Heaven’s laws—and in guarding passengers against violence; or if not, they must pay for the consequences. In one case, they had to pay for the eye which a passenger lost, through the quarrel of some drunken men.[369] In another, for an arm broken in a shindy between votaries of Bacchus.[370] All disorderly and indecent conduct is to be repressed, and those sons of Belial who are guilty thereof must be excommunicated, or expelled, with Puritanic severity.[371] No one should be permitted to travel in a car, who so demeans himself as to endanger the safety, or interfere with the reasonable comfort and convenience of other passengers. But a wolf in sheep’s clothing, a whited sepulchre, a serpent disguised as an angel of light, cannot be refused transport; nor need a conductor remove a too-far-gone dissenter from the principles of J. B. Gough, if he is neither disorderly nor offensive, nor if he remains quiet after admonition. If there is nothing in the condition, conduct, appearance, or manner of a passenger, from which it can reasonably be inferred that he means mischief, the company will not be liable for any sudden attack he may make upon another passenger.[372]
Where the company issue excursion tickets, stipulating to run trains in a particular manner, they cannot excuse themselves, by showing that the carriages are all filled.[373] In England, in ordinary cases, the ticket is issued subject to the condition that there is room in the train; otherwise those who are booked for the greatest distance have the preference.[374] And a carriage must not be suffered to become, or at least to continue overcrowded.[375] A considerable discussion has taken place in some of the States of the Republic as to how far railway companies can require colored persons to sit in a particular place or car. The right to do so was maintained by the Supreme Court of Pennsylvania,[376] but other tribunals have denied it. In Illinois it was decided that a company could not from caprice, wantonness, or prejudice, exclude a black woman from the ladies’ car on account of her negro blood; although it might not be an unreasonable rule to require colored persons to occupy seats in a separate car, furnished as comfortably as the others.[377]
The duties of common carriers include the doing of everything calculated to render the transportation most comfortable and least annoying to passengers.[378] Their contract with their patrons is a stipulation for respectful treatment, that decency of demeanor which constitutes the charm of social life, that attention which mitigates evils without reluctance, and that promptitude which administers aid to distress. And in respect to women it proceeds still further; it includes an implied stipulation against general obscenity, that immodesty of approach which borders on lasciviousness, and against that wanton disregard of the feelings which aggravates every evil.[379]
As men of all sorts and conditions are so constantly travelling on trains, it is not only a reasonable regulation, but almost a humane duty, to have on every train a ladies’ car for women and men accompanying them, from which creatures wearing exposed bifurcated garments, unblessed by the companionship of the fair sex, and women of offensive habits and character may be excluded, so that all the good ladies may be together as they will be in heaven.[380] And even though persons not admissible under the letter of the regulation are occasionally permitted within the charmed precincts the rule is still binding, and a male in trowsers has no right to enter without license or reasonable excuse. If passengers excluded, by regulations, from the ladies’ car cannot find seats in the regular coaches and there is room in the privileged place, they must not be kept standing; but it is the officers of the train who must determine who shall, or who shall not, be allowed to enter the presence of the ladies; one has no right to enter or attempt an entrance by force. If one being unable to find a seat elsewhere go peaceably into the ladies’ car without being forbidden, he cannot then be removed by violence, unless a seat in another carriage is offered to him and he refuses to move. But under no circumstances will a brakesman be authorized in forcibly ejecting such an intruder by throwing him on to the platform while the train is crossing a river. A man is not bound to stay in a smoking-car.[381]
It is said to have been held by some court, in a case of Toland against The Hudson River Railway, that a passenger who is not provided with a seat is not obliged to pay any fare, and if expelled from the cars for refusing such payment may sustain an action against the company. But this doctrine must be taken cum grano salis. If a passenger is not accommodated as he should be, he may decline any compromise, and sue the company for refusing to carry him as their contract by the ticket or their duty required; and he doubtless will succeed unless the company prove some just excuse. But if one chooses to accept a passage without a seat, the general understanding undoubtedly is that he must pay. If, however, he goes upon the cars expecting proper accommodation, and is put off because he declines going without, he may still sue.[382] So much by way of parenthesis and digression.
“Well, what have you got to say about ejectment?” I asked my chum.
“Oh, that it is deuced hard that every dunderhead of a conductor may put a poor wayfaring-man off, even at the noon of night, near any dwelling-house he may choose. In one case the night was dark and cloudy; from where the ejected man was placed, the lights of the last station were visible, although no house was nigh, yet the court held that the servants of the company had not exceeded their authority.[383] The law in some States is that one can only be put out at a station.”[384]
“How would it be, old boy, if the poor wretch was short-sighted?” I inquired.
“That defect in one’s optics would impose no additional obligation on the company; at least so it would appear from the authorities.”[385]
“What would be the consequences if a fellow was to mislay his ticket, and find it again after he had been ignominiously expelled; could he recover against the company?”
“I remember where one Curtis was travelling between St. Mary’s and London, and had put his ticket away so safely—lest he should lose it—that he could not find it. The conductor called upon him to produce it; in vain Curtis ransacked pocket after pocket in coat, waistcoat, and trowsers, pulling out papers, letters, newspapers, wool, and all that precious olio to be found in a man’s pockets. The other travellers were greatly edified and delighted at the exhibition of this omnium gatherum, and their laughs and jests added not a little to the confusion of the poor wretch searching for his little talismanic piece of pasteboard. At length the conductor stopped the train and turned C. off, though while being put off he offered to pay his fare. He sued the company, and got $300 out of them, the court holding the company liable for the acts of their officers duly authorized and styled (under the Act) conductors, when not committed in excess of authority, which in this case had not been overstepped. The company applied for a new trial, but the court declined to disturb the verdict (it being the second one recovered by Curtis), although it considered the damages excessive.”[386]
“I should think,” I remarked, “one ought to be allowed a reasonable time to find his ticket.”
“Of course,” was the reply, “a passenger has a right to ride so long as there is a reasonable expectation of his finding it during the trip.[387] A conductor on a previous train wrongfully taking the passenger’s ticket does not excuse the traveller from producing it, when called upon by another conductor; although, in such a case, the company would be liable for the wrongful act of the first conductor.”[388]
“I suppose the courts assume that the conductors are the agents of the company and authorized to do all legal acts for properly collecting the tickets, keeping order, running the train and removing persons who misbehave or will not pay, and such?” I queried.
“Yes,” replied my friend, who was suffering from an acute attack of cacoethes loquendi, “and if in assuming to carry out what he is legally empowered to do, he forcibly removes from the cars (without any excuse) a passenger who has paid his fare, he will be liable for the assault; but if while being removed the man should slip, fall, and be injured, the company will not be responsible for his scratches and bruises, or his sprains and strains, such things being the remote, and not the proximate consequences of the ejectment.”[389] Force may be used to prevent one unlawfully getting on a train and no liability be incurred for injuries; but when once a man is fairly on care must be taken in removing him.[390] Companies have a right to adopt such reasonable regulations as are necessary for their security, and if they are not complied with by the passengers, not only may the railroad refuse them admission to the cars, but if they are already within they may remove them;[391] “and in the enforcement of order, and in the execution of reasonable regulations for the safety and comfort of passengers and for the security of the train, the authority of the officer in charge must be obeyed.”[392]
“Suppose a man suffered serious detriment to his business by being wrongfully turned out of the cars, could he recover for such losses?” I asked.
“It has been so considered in the great Republic, if he declares specially in regard to them.[393] But it has been held—and I think rightly—that one cannot get vindictive or punitive damages against a company, unless they expressly or impliedly participate in the wrongful action by authorizing it beforehand or approving of it afterwards;[394] or the case be one of gross negligence or wilful misconduct.”[395]
“What is it, then, exactly, that a man can get for being with indignity and insolence hustled out of a train, amid the laughs and jeers of the vulgar and the sneers of the polite?”
“Damages for actual injury, loss of time, pain of body, money paid to the doctor, or for injuries to the wounded feelings of the evicted one, may be allowed.[396] One man got $1,150 for being put off, when sick, away from a station.”[397]
“Suppose one was killed, and sent off unprepared to the happy hunting grounds of his fathers?” I queried.
“Then the company would be liable under Lord Campbell’s Act,”[398] answered my Nestor.
“I presume,” I continued, still indulging my unquenchable thirst for knowledge, “that when a conductor gets into his cranium the idea that it is the proper thing to put one off, the best plan is quietly to submit to the inscrutable and go?”
“Undoubtedly—spoken like a veritable Solon. In such an evil case it will be wise and prudent to gather together one’s surroundings and belongings, and peaceably succumb to the powers that be, for if you leave any articles behind you, you cannot recover their value, unless you can show that the company got them, or that the violence or suddenness of your ejection rendered it impossible for you to take them with you and so they were lost. This point Mr. Glover had the pleasure of settling. He was trying to do the London and Southwestern by giving half his ticket to a friend to save expenses, and when put out of the cars left a pair of glasses behind him, and the court told him that he had only himself to blame for the loss.[399] The courts never like the idea of mulcting railway companies in heavy damages for the sins of commission of their servants and conductors; and so where a verdict of £50 was given against the G. W. R. because the conductor put the plaintiff off the train, though the inconvenience to him was a mere bagatelle and the conductor had acted bonâ fide under an impression that the fare had not been paid, and had used no harshness or violence, a new trial was granted on the ground of excessive damages, and the Chief Justice stigmatized the verdict as ‘outrageous:’ but there the jurors of our Lady the Queen and my lord differed; and so on the second trial the yeomen of the county gave the man only £5 less, and the company submitted.[400] And in another case the same Canadian court spoke regretfully of the exorbitant amount of damages (£50) where the company were not otherwise concerned than through the act of their conductor, who thought that he had only been doing his duty, as England expects every man to do.[401] And where an American jury gave $1,000, no special damage being shown, a new trial was granted.”[402]
“To return to the question of tickets.” I said, “I saw an English decision the other day, which shows how one may save a little in going to an intermediate place, where opposition lines are running to some place beyond.”
“How is that?” was asked.
“Why, often if two lines run to B. or there is an excursion thither, the fare is cheaper than to A., which, perhaps, is not half the distance, and one can buy a ticket to B. and get off at A. if he so wishes.”
“Would that be a safe dodge?”
“It appears to have been decided in England that one may pay his fare to one place, and yet leave the cars at some intermediate place where the train stops, although the fare to the latter place may be greater than it is to the former.”[403]
“I saw another rather funny decision. By a by-law, passengers not delivering up their tickets when required were made liable to a penalty; a man took a return ticket, yet after returning to the place whence he started, did not get off but went on to a further station, without, however, any intention to defraud; it was held that he could not be convicted under the by-law, for it only applied to the case of a person wilfully refusing to show his ticket when he had one, while here the man had none! It was held, also, that the by-law only applied to people travelling minus a ticket with intent to defraud.[404] Where a gentleman took tickets for himself and three servants, keeping the tickets in his own custody and telling the guard that he had them, and the servants were permitted to enter the car without having or showing each his ticket, the court held that the company were estopped from raising the objection that the by-law as to the production and delivery up of tickets had been infringed.”[405]
“I believe,” I remarked, when a pause enabled me to squeeze in a remark, “a company if it chooses may allow a discount off tickets bought before entering the cars; but that those who enter without their magic scraps of card-board cannot claim such indulgence,[406] even though they have been prevented purchasing them from the fact of the office being closed.[407] Although, I believe, it has been held by some courts that the increased rate cannot be collected unless every proper and reasonable facility has been afforded for procuring tickets at the station;[408] and that if a man, without any default on his part, is prevented getting a ticket, he may pay the conductor the excess of fare under protest, and recover it back by suit, or else he may insist upon being taken at ticket rate, and sue for damages if the company refuse.”[409]
“I see that in England some companies have a by-law that if a passenger loses his ticket he shall be liable to pay the full fare from the most distant place on the line.”
“That’s rather hard lines.”
“Don’t pun—fortunately they cannot enforce their by-law by detaining the traveller himself.”[410]
The legal disquisitions on railway companies were suffered to subside for a time, while the train rattled on. I gazed about on my companions. In the seat in front of me sat a young couple, and, judging from the orange blossoms in the bonnet of the one, and the clean shave and kid gloves of the other, not many hours had elapsed since they had stood side by side at Hymen’s altar, and now they were seated inclining towards each other like the slanting sides of the letter A. The male had a little piece of sticking-plaster on his lower lip. As I was staring at the youthful couple, the train dashed into a tunnel and all was darkness. I heard a prolonged sucking sound as of a cow drawing her hind foot out of a mud-hole—to quote a western poet of renown—and when again we emerged into the daylight, ho! presto! the plaster was reposing securely on the ruby lip of the orange-bonneted one; all else was serene and tranquil, and the two looked childlike and bland. How was this? here was a mystery as interesting as any involved in railway law. I meditated deeply on the point until I recollected what in our ante-nuptial days my Elizabeth and myself were wont to do; then all became clear and plain.
“Had a sleep, have you?” I said to my friend, who had been silent an hour and was now yawningly stretching himself.
“A sleep? oh! no! not even a cat-nap, scarcely worthy of the name of a kitten-nap,” was the reply.
“Humph! rather a long kitten! twenty miles or so!”
We stopped at a small wayside station for a few minutes while the engine took a draught of water; a gentleman got out to take a breath of air or something of the sort, and while he was wandering up and down the platform, off started our train without a solitary premonitory screech, leaving the individual wildly waving his arms and frantically shouting after the hindermost car. In thus quietly slipping off, the company were wrong, for a traveller who alights temporarily, but without notice, invitation, or objection, while the train is stopping at an intermediate station, does no unlawful act, and although for a time he surrenders his place and rights as a passenger, he may resume them again before the train starts, and the officers of the railway are bound to give him reasonable notice of starting,[411] and must not steal off silently like a thief in the night. And passengers have a right to perambulate the platforms while the train is stopping for refreshments, and the firemen and stokers should not toss about wood or coal so as to injure the travellers.[412]