Parol evidence of what is said between a passenger on a railroad
and the ticket seller of the company at the time of the purchase by
the passenger of his ticket is admissible as going to make up the
contract of carriage and forming part of it.
Passengers on railroad trains are not presumed or required to
know the rules and regulations of the company made for the guidance
of its conductors and employees as to its own internal affairs.
Plaintiff bought a ticket in Boston entitling him to a passage
over defendant's road. At the time, he informed the ticket agent of
his wish to stop off at the Olean station, and was then told by the
agent that he would have to speak to the conductor about that.
Between Binghamton and Olean, the plaintiff informed the conductor
that he wished to stop over at Olean and the conductor, instead of
giving him a stop-over ticket, punched his ticket and told him that
was sufficient to give him the right to stop over at Olean, and
afterwards to use the punched ticket between Olean and Salamanca.
He made the stop, and taking another train to Salamanca, presented
the punched ticket, informing the conductor of what had taken
Page 143 U. S. 61
place. The conductor refused to take it and demanded full fare.
The payment of this being refused, the conductor stopped the train
at the next station and ejected him from it, using such force as
was necessary.
Held:
(1) That he was rightfully on the train at the time of his
expulsion.
(2) That the conductor had no right to put him off for not
paying his fare.
(3) That the company was liable for the act of the
conductor.
(4) That the passenger had a right to refuse to be ejected from
the train, and to make a sufficient resistance to being put off to
denote that he was being removed against his will by
compulsion.
(5) That the fact that under such circumstances he was put off
the train was of itself a good cause of action against the company,
irrespective of any physical injury he might have then received, or
which was caused thereby.
When the trial court has, in its general charge, given the
substance of instructions requested, there is no error in refusing
to give them in the language requested.
It is not the province of this Court to determine whether a
verdict was excessive.
The Court stated the case as follows:
This was an action by David T. Winter, a citizen of
Massachusetts, against the New York, Lake Erie & Western
Railroad Company, a New York corporation, to recover damages for
having been put off the defendant's train while a passenger thereon
between Binghamton and Salamanca, New York. It was commenced in a
state court of Massachusetts, and was afterwards, upon the
application of the defendant, removed into the proper federal court
on the grounds of diverse citizenship and of local prejudice and
influence. Several other railroad companies that were supposed to
have property or funds in their hands belonging to the principal
defendant were made parties defendant as trustees or
garnishees.
The declaration contained two counts. In the first, it was
alleged that on February 13, 1882, the plaintiff, being the owner
of an unlimited first class ticket entitling him to carriage on the
defendant's road from Binghamton to Salamanca, took passage on the
defendant's train at the former place, to be carried to the latter;
that between Binghamton and Olean (a station on the road between
Binghamton and Salamanca),
Page 143 U. S. 62
the defendant's agent in charge of the train punched his ticket
at his request, so that he was entitled to "stop over" at Olean,
and returned it to him; that he did stop over at Olean, and the
next day took a train on defendant's road to go to Salamanca on the
aforesaid ticket; that the defendant's agent in charge of the
last-named train refused to accept his ticket, but demanded payment
of a cash fare from Olean to Salamanca, and, upon his refusal to
pay the same, forcibly ejected him from the car in which he was
riding, and removed him from the train, whereby his finger was
broken and other severe and painful injuries were sustained, that
his luggage and apparel were taken away on the train, and he was
thereby deprived of certain valuable papers, and the place where he
was ejected from the train was a great distance from any public
house, and that it was at a very late hour of the night, and the
weather was very cold and inclement, all of which occasioned him
great bodily and mental suffering.
The second count alleged that the defendant, by its agents and
servants, made an assault upon the plaintiff, and ejected him from
the cars in which he was lawfully traveling, and did him serious
personal injury, and subjected him to great personal indignity.
The defendant answered with a general denial, and further
alleged that when its conductor applied to the plaintiff for his
ticket, after leaving Olean, the plaintiff presented a ticket which
had been cancelled to Salamanca, whereupon the conductor told him
that such ticket was not good to Salamanca, and that the rule of
the road would not allow him to, and he could not, accept it,
although it would be good beyond Salamanca, and that he must pay
full fare to that point, which the plaintiff refused to do, saying
to the conductor to put him off, if he dared to do so; that the
conductor told him he should be obliged to stop the train at the
next station, and put him off, and that, the plaintiff still
refusing to pay his fare when the next station was reached, the
conductor stopped the train, and put him off, using no more force
than was necessary and proper.
It was further alleged that the plaintiff had no lawful
right
Page 143 U. S. 63
to be transported over the road to Salamanca, and was traveling
on defendant's cars in violation of a uniform rule of the road
which was explained to him before he was put off, and without any
lawful right whatever, and that, if he sustained any injuries of
any kind, it was due solely to his own wrong.
The garnishees answered separately, and, with the exception of
the Fitchburg road, each averred that it had no property or funds
whatever in its hands belonging to the principal defendant. The
latter company, in its answer, admitted having several thousand
dollars in money belonging to the principal defendant.
Upon the issues thus made up, the case went to trial in the
state court, resulting in a verdict in favor of the plaintiff for
over $6.000, which, upon motion of the defendant, was set aside by
the court. Soon afterwards, the cause was removed into the federal
court, as before stated. Upon a trial in that court, the jury
returned a verdict in favor of the plaintiff and against the
defendant for $10,000, and, judgment having been entered upon the
verdict for that amount, this writ of error was sued out. Since the
cause was docketed in this Court, the plaintiff has died, and his
administrator is now representing his estate.
As shown by the bill of exceptions, the plaintiff, on the trial,
to sustain the issues on his part, gave evidence to the following
effect: on the morning of February 13, 1882, the plaintiff, a
resident of Peabody, Massachusetts, purchased an unlimited coupon
ticket at the ticket office of the Fitchburg Railroad Company in
Boston, from that city to Chicago, one of its coupons being for
travel over the defendant's road from Binghamton to Salamanca, New
York, at the same time telling the ticket agent that he wanted to
buy a ticket which would enable him to stop off at Olean, New York
a town between Binghamton and Salamanca. The agent informed him
that such ticket would cost him about three dollars more than an
unlimited ticket good for one continuous passage over the same
route, but it would allow him to stop over at Olean, as he has
expressed a desire to do, by "speaking to the conductor."
Plaintiff took the ticket and started on his journey. When
Page 143 U. S. 64
he reached Binghamton, three of the lower coupons had been given
up, the next one being that for travel between Binghamton and
Salamanca. After leaving Hornellsville, a station on the
defendant's road between the last-named two places, the plaintiff
said to the conductor as he came through the car to take up tickets
that he desired to stop off at Olean at the same time asking him if
they would make connection at that point with a train running south
on another road to a town called "Portville," where he wished to go
for a short time on business. The conductor replied to him that
that train would wait for them if they were late at Olean, and
further said, "I will fix you all right." The conductor punched his
ticket, and returned it to him. Reaching Olean, the plaintiff got
off the train, made his journey to Portville, returned to Olean,
and took passage on the next westbound train over the defendant's
road to complete his journey to Chicago. When the conductor came
for his ticket, the plaintiff handed the ticket, attached to which
was the punched coupon from Binghamton to Salamanca. The conductor
looked at it a minute and threw it back to him, remarking that it
was "no good," and that he would have to pay his fare from Olean to
Salamanca. After some wrangling over the matter, the plaintiff
still refusing to pay the extra fare demanded unless the conductor
would give him a written receipt therefor, and the conductor
refusing to give such receipt, the latter stopped the train at a
small station called "Allegheny Station," about the middle of the
night, and, with the assistance of the brakeman and other employees
of the road on the train, forcibly ejected the plaintiff from the
train, using much more violence and force than was necessary and
proper for such purpose, so that the plaintiff was severely injured
in his left arm and wrist, from which injury he has suffered great
pain and anguish, and has received medical treatment. Upon reaching
the platform, the plaintiff, seeing that the night was very dark,
and the weather very cold, offered to pay the extra fare on to
Salamanca if the conductor would allow him to reenter the train;
but this the conductor refused to let him do, and in doing so used
offensive and unseemly language. Part of the plaintiff's
Page 143 U. S. 65
baggage, containing some clothes, was left on the train and was
never returned to him.
He spent the night at Allegheny station, and on the following
morning hired a carriage and drove back to Olean, where he again
took a westbound train on the defendant's road, and presented to
the conductor the same ticket and coupon that had been refused the
night before by the other conductor, and it was received without
any question whatever as to its validity, and he continued on his
journey. On cross-examination, the plaintiff testified that he did
not ask the conductor, before reaching Olean, for a stop-over
check, and that nothing was said about such thing by the conductor,
and, on being recalled by his own counsel, he stated that the agent
in Boston said nothing about a stop-over check.
The plaintiff also introduced evidence tending to prove that it
was the duty of the conductor, under a custom in relation to
railroad matters, to give the plaintiff a stop-over check at Olean,
without plaintiff's asking for it, after the latter had stated that
he desired to stop over at that place, and that the only difference
between the form of a limited ticket, which was good only for a
continuous passage, and an unlimited one, such as he had bought,
giving stop-over privileges, was that in the limited ticket the
agent selling it would punch out the year, month, and day it was
sold, in the margin of the ticket, and punch each of the coupons
with an L, whereas the unlimited ticket would not be punched at all
by the agent selling it.
The evidence introduced by the defendant tended to contradict
some statements made by the plaintiff with respect to the
conversation had with the agent who sold him the ticket and also as
to the occurrences and conversations which took place between him
and the conductor immediately prior to his being put off and the
amount of force used in putting him off, but the main facts in the
case as testified to by the plaintiff were practically undisputed.
The conductor who put him off was called, and testified, among
other things, that he thought the plaintiff had a limited ticket,
instead of one unlimited, and so reported to the company, but that
that mistake on his part
Page 143 U. S. 66
really made no difference, as the rules of the road forbade his
taking the punched coupon at Olean, and required him to do as he
had done, although, upon cross-examination, he admitted that he
knew the coupon had not been used to Salamanca, because the
punch-marks in it had been made by the conductor on the train next
ahead of his.
The rules and regulations of the road in force when these
occurrences took place were introduced in evidence by the
defendant, and, with respect to stop-over privileges, were as
testified to by the conductor. It appeared that these regulations
were put up in the cars of the company in 1875, but were not
supposed to be remaining there in the year 1882, and it was not
shown that the plaintiff ever had any knowledge or notice of their
existence. The statutes of the State of New York allowing railroad
companies organized under the law of that state to make needful
rules and regulations relative to the management of their passenger
traffic, and also permitting them to put a passenger who refuses to
pay his fare off their trains, using no more force than is
necessary for such purpose, were also put in evidence.
The conductor of the train which finally carried the plaintiff
to Salamanca was not called as a witness, nor was his absence
accounted for, but there was evidence of a high official of the
road, brought out on cross-examination, that there were other ways
of providing for a passenger entitled to a stop-over privilege than
by giving him a stop-over check.
All the plaintiff's testimony with respect to the damages he had
sustained, and also with respect to his conversation with the agent
who sold him his ticket, was admitted over the objections of the
defendant, and exceptions were duly noted thereto.
At the close of the testimony, the defendant presented eleven
separate prayers for instructions to the jury, but the court
declined to give them except so far as they were embodied in the
general charge, and the defendant excepted. The plaintiff's counsel
then stated that he should not claim to the jury that more force
was used in expelling the plaintiff from the train than was
necessary to overcome his resistance, and that element was
therefore eliminated from the case.
Page 143 U. S. 67
There is no question in the case respecting the measure of
damages, as the instructions of the court upon that question were
not excepted to.
Page 143 U. S. 68
MR. JUSTICE LAMAR delivered the opinion of the Court.
There were eleven assignments of error originally, based upon
certain exceptions to the rulings of the court during the progress
of the trial, but in the brief of counsel for plaintiff in error
they have been reduced to eight. As the only one of these
exceptions that was properly saved under our rules was that
relating to the admission of evidence as to what the ticket agent
at Boston said to the plaintiff when he purchased his ticket, we
would perhaps be justified in limiting our consideration to that
point. Aside from this informality or defect in the exceptions
saved, however, and as the assignments of error all refer either
directly or remotely to that point, and thus relate to but one
subject, we shall consider them not separately, but shall for
convenience treat them together. It is urged that the court erred
(1) in allowing the plaintiff to testify as to what was said by the
agent in Boston when he bought his ticket, (2) in its instructions
to the jury upon this point, and
Page 143 U. S. 69
with respect to the rules and regulations of the road relative
to stop-over checks, (3) in not giving certain instructions asked
for by the defendant, upon the question of stop-over checks, and
(4) in not telling the jury in effect that it was their duty under
all the evidence in the case to bring in a verdict for the
defendant.
The grounds upon which it is insisted that the evidence referred
to was inadmissible are that the ticket itself, and the rules and
regulations of the road with respect to stop-over checks,
constitute the contract between the passenger and the road, and the
only evidence of such contract, and that no representations made by
a ticket seller could be received to vary or change the terms of
such contract. This contention cannot be sustained, and is opposed
to the authorities upon the subject. While it may be admitted as a
general rule that the contract between the passenger and the
railroad company is made up of the ticket which he purchases and
the rules and regulations of the road, yet it does not follow that
parol evidence of what was said between the passenger and the
ticket seller from whom he purchased his ticket at the time of such
purchase is inadmissible as going to make up the contract of
carriage and forming a part of it. In the first place, passengers
on railroad trains are not presumed to know the rules and
regulations which are made for the guidance of the conductors and
other employees of railroad companies as to the internal affairs of
the company, nor are they required to know them.
Hufford v.
Grand Rapids Railroad, 61 Mich. 631. In this case, there is no
evidence, as already stated, that notice or knowledge of the
existence of the rules of the defendant company, or what they were,
with respect to stop-over privileges, was brought home to the
plaintiff at the time he purchased his ticket or at any time
thereafter. There was nothing on the face of the ticket to show
that a stop-over check was required of the passenger as a condition
precedent to his resuming his journey from Olean to Salamanca after
stopping off at the former place. It is shown by the evidence that
Olean was a station at which stop-over privileges were allowed.
Under such circumstances, it was entirely proper for the passenger
to make
Page 143 U. S. 70
inquiries of the ticket agent, and to rely upon what the latter
told him with respect to his stopping over at Olean.
Hufford v.
Grand Rapids Railroad, supra; Palmer v. Railroad, 3 S.C. 580;
Burnham v. Grand Trunk Railway Co., 63 Me. 299;
Murdock v. Boston & Albany Railroad, 137 Mass. 293;
Arnold v. Pennsylvania Railroad, 115 Penn.St. 135.
Upon this question, and also with respect to the action of the
first conductor and the regulations of the road relative to
stop-over privileges, the court gave to the jury the following
instructions:
"That if the plaintiff's testimony was true in regard to what
took place between himself and the ticket agent in Boston, and
afterwards with the first conductor on the defendant's train, and
if the plaintiff, when he bought his ticket in Boston, informed the
ticket agent of his wish to stop off at the Olean station, and was
then told by the ticket agent that he would have to speak to the
conductor about that, and between Binghamton and Olean the
plaintiff informed the conductor that he wished to stop over at
Olean, and the conductor, instead of giving the plaintiff a
stop-over ticket, punched the plaintiff's ticket and told him that
was sufficient to give him the right to stop over at Olean and
afterwards to use the punched ticket between Olean and Salamanca,
then whatever the rules and regulations of the road were, the
plaintiff was rightfully a passenger on the train at the time of
his expulsion, and the conductor had no right to put him off for
not paying his fare, and the company was liable for the act of the
conductor; that if, on the other hand, the plaintiff did not notify
the conductor of his wish to stop over at Olean, and received no
such assurance from the conductor or from the ticket agent as he
has testified, then the punched ticket gave him no right to ride as
a passenger on the train between Olean and Salamanca without paying
his fare, and if he refused to pay his fare when demanded, the
conductor was justified in putting him off, and his offer to pay
his fare after the train was stopped was too late, and did not give
him the right to ride on the train, and the conductor was justified
in expelling him, notwithstanding the offer."
We think these instructions perfectly correct, and that,
upon
Page 143 U. S. 71
these points, they embodied substantially the whole law of the
case. The gravamen of this action is the wrongful conduct of the
conductor who ejected the plaintiff from the train. Whether the
plaintiff told nothing but the truth with reference to what
occurred on the train between him and the conductor before he was
put off and at the time he was put off, or whether the jury
believed all he testified to with reference to those matters, is
not the question to be determined. But taking the case in this
particular most strongly in favor of the defendant, under the
evidence submitted it must be admitted that the action of the
conductor was inexcusable. He testified, among other things, (1)
that he thought the plaintiff's ticket was a limited one, and so
reported it to his company, when in truth and in fact it was
unlimited, thus showing carelessness and negligence in a most
pronounced degree; (2) that he knew, or had good reason for
knowing, that the Binghamton-Salamanca coupon had not been used to
the latter place because it had been punched by Conductor Hurty,
who had charge of the next preceding train to the one of which he
had charge, so that it was impossible for him to believe that the
plaintiff was trying to ride on a ticket that had once been used
over that part of the road. But he tries to justify his conduct in
this particular by saying that he would not have been authorized to
carry the plaintiff on his train, any way, without his having a
stop-over check procured from the conductor of the train on which
he had ridden to Olean. It may be true that the regulations of the
road were substantially to that effect, and it may also be admitted
that the road had the right to make such regulations, subject, of
course, to the reasonable interests, convenience, and comfort of
the traveling public. But the testimony of a very high official of
the road was that stop-over checks were not absolutely necessary,
and that other arrangements might be, and sometimes were, made. And
the very fact that the plaintiff afterwards, on the next morning,
did travel from Olean to Salamanca on one of the defendant's trains
without producing any stop-over check or any other ticket save and
except the one which had been refused the night before demonstrates
clearly that the regulations of the
Page 143 U. S. 72
road with respect to stop-over checks were not unbending and
inviolable.
Another circumstance in this connection is worth noting: the
conductor of the train on which the plaintiff rode from Olean to
Salamanca was not called as a witness, nor was his absence
accounted for. It was not shown that he was not still in the employ
of the defendant. If accessible, his testimony would have gone far
toward showing the practice of the defendant with respect to
stop-over checks, and his not being called by the defendant makes
against its theory that the plaintiff had no right to be carried on
the train from which he was ejected without having a stop-over
check.
Furthermore, if the evidence of the plaintiff was to be believed
-- and in this respect the charge of the court below was
sufficiently guarded -- he did all that he was required to do
before reaching Olean to entitle him to the privilege of stopping
over at that place and resuming his journey the next day. In fact,
his course in this respect was in literal conformity with the
regulation of the company, which reads thus: "Timely notice of
desire to stop over must be given by the passenger to the company."
The plaintiff testifies that he told the conductor that he desired
to stop off at Olean and take a train south to Portville, and then,
upon returning to Olean, resume his journey to the west on another
train, and that the conductor told him he would fix him all right.
Even under the regulations of the road with reference to stop-over
checks (although not brought to his knowledge), he had the right to
rely upon the statement of the conductor that he would "fix him all
right," and had a right to suppose that nothing further was
required to be done by him than was done to entitle him to a
stop-over privilege. The conductor, after receiving "timely notice
from the passenger of his desire to stop over" at Olean and
afterwards take another train for the remainder of his journey, as
he had the right to do on an unlimited ticket, was thereupon bound
to furnish the passenger with a stop-over check without the
passenger's asking him in so many words for one. Under the
circumstances of the case as testified to by the plaintiff, the
conductor of the first train was derelict in his duty in not
Page 143 U. S. 73
providing the passenger with a stop-over check when the latter
stated to him that he desired to stop off at Olean, as he had the
right to do, if such check was necessary to enable the passenger to
complete his journey to Salamanca. If the jury believed the
evidence of the plaintiff in this matter, they were justified in
finding negligence on the part of the first conductor. And upon the
case as made by the defendant itself with reference to what took
place between the plaintiff and the conductor who ejected him from
the train, leaving out of sight the disputed facts in that matter,
it is very clear to our minds that the action of that conductor was
unwarranted under the law, and that the charge of the court thereon
was as favorable to the defendant as it had the right to demand.
The authorities above cited abundantly sustain this view. The
reason of such rule is to be found in the principle that where a
party does all that he is required to do under the terms of a
contract into which he has entered, and is only prevented from
reaping the benefit of such contract by the fault or wrongful act
of the other party to it, the law gives him a remedy against the
other party for such breach of contract.
These observations dispose of the questions raised touching the
conversation between the plaintiff and the ticket agent the rules
and regulations of the company in the matter of stop-over checks,
the acts of the several conductors in charge of the trains upon
which the plaintiff traveled between Binghamton and Salamanca, and
the conduct of the plaintiff himself in those transactions. If he
was rightfully on the train as a passenger, he had the right to
refuse to be ejected from it and to make a sufficient resistance to
being put off to denote that he was being removed by compulsion and
against his will, and the fact that under such circumstances he was
put off the train was of itself a good cause of action against the
company irrespective of any physical injury he may have received at
that time or which was caused thereby.
English v. Delaware
& Hudson Canal Co., 66 N.Y. 454;
Brown v. Memphis
& Charleston R. Co., 7 F. 51;
Philadelphia, Wilmington
& Balt. Railroad v. Rice, 64 Md. 63.
Page 143 U. S. 74
It follows from what we have said that there was no error in the
action of the court in refusing to direct the jury, in effect, to
return a verdict in favor of the defendant. Neither was there any
error prejudicial to the defendant in any part of the charge, above
quoted, which the court gave to the jury upon the questions we have
been considering.
With respect to the instructions requested by the defendant upon
these points, which the court declined to give except as embodied
in the general charge, very little need be said. They are as
follows:
"(1) The regulation of the defendant corporation that the
several conductors of its trains shall require of each passenger a
valid ticket or to pay the established fare is a necessary and
proper regulation, and if the plaintiff in this case, having, as he
says, taken defendant's train at Olean for Salamanca, did not, when
thereto requested, present to the conductor a valid ticket, but
only a ticket that had been cancelled, and refused to pay his fare,
then the conductor had the lawful right to stop the train at an
intermediate station or near to a dwelling house and put the
plaintiff off the train, using only such force as was necessary for
that purpose."
"(2) The regulation of the defendant that a passenger who
desires to stop over at an intermediate station and resume his
passage by a later train must, before leaving the first train,
require of the conductor a stop-over check is a reasonable
regulation, and since in this case it appears by the plaintiff's
own testimony that his ticket from Binghamton to Salanmanca was
cancelled before he left the train, and he did stop over at Olean,
an intermediate place, and resumed his passage the next day, and
presented no stop-over check, but only the cancelled ticket, and
refused to pay his fare when requested, and persisted in that
refusal, the conductor had the lawful right to stop the train at
the intermediate station, as he did, and put the plaintiff off the
train."
What we have said above virtually disposes of these requests.
Insofar as they are correct, the substance of them had been given
by the court in its general charge, and there was no error,
therefore, in refusing to give them in the language
Page 143 U. S. 75
requested.
Washington & Georgetown Railroad v.
McDade, 135 U. S. 554;
Aetna Life Ins. Co. v. Ward, 140 U. S.
76. In fact, it is much the better practice to refuse to
give instructions to the jury the substance of which has already
been stated in the general charge than to repeat the same charge in
different language, although the charge requested may be
technically correct as an abstract proposition of law, for a
multitude of instructions, all stated in different language and
meaning the same thing, tends rather to confuse than to enlighten
the minds of the jury.
Whether the verdict was excessive is not our province to
determine on this writ of error. The correction of that error, if
there were any, lay with the court below upon a motion for a new
trial, the granting or refusal of which is not assignable for error
here. As stated by us in
Aetna Life Ins. Co. v. Ward:
"It may be that, if we were to usurp the functions of the jury
and determine the weight to be given to the evidence, we might
arrive at a different conclusion. But that is not our province on a
writ of error. In such a case, we are confined to the consideration
of exceptions taken at the trial to the admission or rejection of
evidence and to the charge of the court and its refusals to charge.
We have no concern with questions of fact or the weight to be given
to the evidence which was properly admitted."
140 U.S.
149 U. S. 91,
citing numerous cases.
It would subserve no useful purpose to go more into detail as to
the assignments of error presented. What we have already said
virtually disposes of all of them. We think the evidence objected
to was properly admitted, that the charge of the court as given was
correct and embodied the entire law of the case, that its refusal
to give the instructions requested, under the circumstances, was
not error, and that in no other respect, so far as this record
discloses, was any error committed to the injury of the railroad
company.
Judgment affirmed.
