
    Lionel Charbonneau, Appellant, v. Nassau Electric Railroad Company, Respondent.
    Second Department,
    January 10, 1908.
    Railroad — transfers — Railroad Law, section 104, construed — right to take direct route — assault — passenger unlawfully ejected may recover — damage.
    Under section 104 of the Railroad Law, requiring street surface railroads to issue transfers under certain conditions to passengers desiring to make one continuous trip between two points on connecting lines or portions thereof, a passenger is entitled to a transfer at the point of intersection which will enable him to reach his destination by the shortest and most convenient route.
    A passenger receiving a transfer stating that it is to be tendered “at the intersection of the issuing, lines” is entitled "to transfer at a point where a connecting line leaves the road upon'which he was first traveling, if such route be the nearest and most convenient to his destination; he cannot be compelled to take another and more circuitous route to reach a place where the two roads crossed.
    A transfer so worded should be construed to mean that the holder could present it at the point where the trades of the two roads met, and not as restricting the transfer to the point of intersection of the “lines.” The point of “intersection ” "which the law intends is any point where the passenger can continue his ' direct journey by taking another car.
    The word “continuous,” as used in the statute, must be construed to mean the most direct, quickest and most convenient route.
    Although when the connecting lines intersect at more than one point the statute does not require that transfers shall be issued at every point of intersection, yet the railroad has not an absolute and unqualified right to determine where the transfers shall be used, for the statute requires them to be issued for the public convenience, and implies a right to take the most direct and convenient route.
    A railroad cannot avoid the requirements of the statute under color of its right to make and enforce reasonable rules and regulations for the conduct of its business. , ,
    A railroad cannot require several changes and successive transfers when the public convenience will be better served by one change and one transfer.
    When a transfer does not specify the exact place of transfer, a passenger using the same has a right to change at such point of intersection as furnishes the most direct and convenient route.
    When a passenger holding a transfer, valid on its face, which entitles him to travel on the route taken; is ejected against his will, but without forcible resistance, because of a refusal to pay another fare, it is an unlawful assault by the defendant’s agents, for which it is liable in damages.
    
      Appeal by the plaintiff, Lionel Charbonneau, from a judgment of the Supreme Court in favor of the defendant, entered in the office of the clerk of. the county of Kings on the 1st day of May, 1907, upon the dismissal of the complaint by direction of the court after a trial at the Kings County Trial Term.
    
      Frederick S. Martyn [Stephen C. Baldwin with him on the brief], for the appellant.
    
      A. M. Williams [George D. Yeomans with him on the brief], for the respondent.
   Woodward, J.:

The action was brought by the plaintiff to recover damages for an assault committed by an employee of the defendant-while the plaintiff was a passenger upon one of its Seventh avenue cars.'

The plaintiff is a physician and on the 20th of September, 1904, took passage on a Vanderbilt avenue car, operated by the defendant, coming from Gravesend. After paying his fare the plaintiff, who lived on Second street near -Seventh avenue, asked the con-, ductor if transfers were -issued to the Seventh avenue line. The conductor replied, “Yes, sir, we transfer to the Seventh Avenue line.” The plaintiff having received his transfer tendered the same to the conductor of the Seventh avenue car, also operated by the defendant, which he boarded at the beginning of the Seventh avenue line at Ninth avenue and Twentieth street, where the Vanderbilt car running east on Twentieth street turns into Ninth avenue. The conductor of 'the Seventh avenue car, refusing to accept the transfer, demanded another fare, which the plaintiff refused to pay. The defendant’s inspector thereupon ejected the plaintiff from the car. Under the provisions of section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as renumbered and amd. by Laws of 1892, chap. 676) the plaintiff was -'entitled to one continuous passage on the defendant’s roads for one fare.

As the track running from Gravesend on Twentieth street continues past the corner of Ninth avenue and Twentieth street, which is the starting point of the Seventh avenue, line, to Seventh avenue, it seems to me that the plaintiff by boarding a Seventh avenue car where he did was following the logical sequence of liis journey; that this because the nearest was the most convenient route; that to have taken a car to Adams and Concord streets, which the defendant claims was the established point of. transfer, would have taken the plaintiff a long distance out of his way and that, therefore, lie had a legal right to take the nearest and most convenient route by boarding the Seventh avenue car at Ninth avenue.

The defendant makes a refined distinction between “.tracks ” and “lines” that is not tenable at law, when it says: “The transfer required that it be used at the intersection of the lines, and not at the intersection of tracks.” What then is meant, by the words on the face of the transfer, which direct that it is to be tendered “ at intersection of issuing line ? ” Some light on this point may be gathered from the case of Hanley v. Brooklyn Heights R. R. Co. (110 App. Div. 429), cited by the defendant, which case was decided on appeal in the defendant’s favor,. In that case it was held that a certain passenger alighting at the intersection of the Nostrand avenue line with the Fulton street line forfeited her right to passage upon , the Fniton street line because of a failure to board the car at the point of intersection. The point of intersection which the law intends is, therefore, any point where the passenger can continue his direct journey by taking another car, and such was the point of intersection at Twentieth street and Ninth avenue, where the plaintiff boarded the Seventh avenue car.

If the distinction between “ lines ” and “ tracks ” which the defendant seeks to make be upheld, it would be rendered possible for the defendant to demand an extra fare where the law intends that only one fare shall be charged. It is not denied that the transfer from the Vanderbilt avenue car to the Seventh avenue car would he a continuous passage. It is admitted that this would have been the most, direct of the three possible routes by which the plaintiff could reach his destination.- The word “continuous” in the statute, therefore, must be. construed to mean direct wherever it can apply. Any other construction, it seems to me, would nullify the purpose of the law. “'Continuous,” according to the Standard Dictionary, means “ connected, extended, or prolonged, without separation or interruption of sequence; unbroken, uninterr mitted.” ,It is also defined as “ having but one direction.”

It is plain that the passenger transferring to the Seventh avenue car at this point would prolong.his journey without interruption of sequence. On the other hand, for the plaintiff to have gone to Concord and Adams streets would have necessitated such changes from liis intended course, such interruptions, intermissions and deviations from that extension of one direction or from that uninterrupted sequence which is plainly intended by the law, that I do not see. how such course could be held to be “ continuous.” To allow the defendant’s contention would be to construe “ continuous ” as meaning continued, occupancy of a car rather than that which the law plainly requires, the rhost direct, the quickest and the most convenient route under the circumstances.

The defendant claims that the plaintiff could have asked for a transfer to a Fifteenth street car on Ninth avenue, and that from this lie could have transferred to a Seventh avenue car; but as this would involve two transfers it is plainly ,less convenient add less continuous than the route taken. • The plaintiff was entitled to ride to the point nearest his destination.. Moreover, since the tracks on Twentieth street are continuous,, and since the Seventh avenue line virtually begins where the Vanderbilt avenue line turns into Ninth avénue, there is at that point just such an intersection of lines as-the statute contemplates. As the tracks on Twentieth street, on which plaintiff came, turn at right angles to the left into Seventh avenue, the plaintiff was entitled to construe the words “ at intersection of- issuing line ” as a continuation of his course.

The defendant's contention that such intersection as the statute implies exists only at Concord and Adams streets is, therefore, untenable. ■ The defendant, however, claims that the statute does not require that if two lines of railroad intersect at more than one point, transfers shall be issued at every point of intersection. This' cannot be disputed; but when the defendant, therefore, assumes that to the railroad company belongs the absolute and unqualiiied right of determining where transfers shall be used, it goes too far. The statute plainly intends that transfers shall be given for the public convenience, and the public convenience necessarily implies the most direct and the most convenient route. Nor does the defendant anywhere show why its refusal to give -transfers at this point is a reasonable rule, or that it is necessary for the • efficient operation of its lines.

That the defendant company has a right to malee and enforce such rules as are reasonable for the conduct, of its business is conceded, but no rule which is contrary to the provisions of the statute or whose enforcement would invalidate its provisions can be upheld.

That it has not been customary to give transfers at this point may be true, but the case at bar proves conclusively that such transfers should be given. To permit a railroad company to subject its patrons to the inconvenience of talcing a circuitous route and of going several miles out of their way, as would have been the case had the plaintiff presented his transfer at Concord and Adams streets, is contrary to the plain purpose of the Railroad Law. Mor can a railroad company, furthermore, exact several changes and successive transfers when the public convenience can be better served by one change and one transfer.

In the vast complication of street car lines which exists in a large city no individual can be expected to be so well informed that he will always aslc for the most convenient transfer. To uphold the claims of the defendant in this issue would be to allow the railroad company to take advantage of this confusion. Any passenger coming from "Gravesend on a Vanderbilt avenue car, who desires to go to some point on or near Seventh avenue, would naturally call for a transfer to a Seventh avenue car. Under the present arrangement, unless .the conductor volunteered to suggest a more convenient route, he would be given a transfer which would take him several miles out of his way. . Rather than do this, most people would prefer to pay the extra fare, for thus only could they at present secure a direct aud continuous passage. " ° ■

The company’s rules, to which the defendant would make the. application of the statute subordinate, are so obviously unreasonable that the cases cited in the defendant’s brief are not applicable to the case at bar. In two of those cases (Barker v. Central Park, etc., R. R. Co., 151 N. Y. 237; Gulf C. & S. F. R. Co. v. Moody, 30 S. W. Rep. 574) it was held that it was not necessary that a common carrier should bring home to each passenger a personal knowledge of any reasonable rule which it is seeking to enforce.

In the present case the rule is clearly arbitrary and unjust, as well as unreasonable, not only because its enforcement would have subjected the passenger to great and unnecessary inconvenience, but also because it- is contrary to the-statutory provision. For while the defendant’s right to malee such reasonable rules as are necessary to conduct its business is unquestioned/it cannot- by the printed phrase subject to the rules of the company ” destroy the passenger’s right to a continuous trip for one fare; • ,

While the cases of Griffin v. Interurban St. R. Co. (179 N. Y. 438) and O'Reilly v. Brooklyn Heights R. R. Co. (Id. 450), both of which are cited .by the plaintiff,, present some-points of- difference from the casé at bar; yet. in both of these cases the principle here involved, that the'Railroad Law gives-each passenger the. Tight to a transfer from one road to' another and-to. a continuous passage, is maintained. If the defendant, in the case at bar had given the plaintiff a- transfer which .expressly specified that, it was good only . at Concord and Adams .street's, the issue, would have been the Same as that in Nicholson v. Brooklyn Heights R. R. Co. (118 App. Div. 14), in which a passenger tendered a transfer which was invalid on its' face. But. in the absence of. specific, words to the contrary', it is' plain that the plaintiff had the:right to infer that'-the beginning ,of the Seventh avenue line was such point of “ intersection ” . as the transfer stipulated. , .

. Whether the plaintiff is" entitled to recover depends pn liis right to a transfer at this point,-and whether he had a right to. such-, transfer is to be discovered only through,the. statute. It seems to me that here Was such an intersection as the transfer stipulated, and that, therefore, the defendant’s agents committed, unlawful assault upon the plaintiff when they ejected him from their car.. As. it does not appear that the passenger--resisted .'mo re'.than was-sufficient'to demónstrate that he was Compelled to. get off against liis will, the case of Monnier v. N. Y. C. & H. R. R. R. Co. (175 N. Y. 281), cited,by the defendant, which, concerns the. forcible removal from a train of a passenger who-refused-to pay additional fare, does not apply. There the inability of the passenger-tó procure a .ticket because the "ticket office was closed was held to be no, justification for forcible resistance. Here "the plaintiff only insisted on his right to a passage, as shown by the-transfer, and did not invite a .personal collision-... '-

Though it was held in the Nicholson Case (supra), that because the Legislature has provided a penalty the law does not contemplate that a passenger in addition, thereto may recover for indignities to which he voluntarily subjects himself, yet that case, where the transfer on its face did not entitle the plaintiff to ride and where he relied on an. assurance which he knew to be false, differs from this in that here the plaintiff was entitled, because he presented a transfer which was valid on its face, to the same rights as if he" had jnst paid his fare.

Surely the law does not intend that a passenger who has a lawful right to passage can be summarily ejected without an adequate remedy. The question is not whether the conductor did or did not think the transfer to be good, hut whether or not it was good. Holding it to be so on its face, it follows that an action for damages can be maintained.

I am of the opinion that the words “ transfer from Vanderbilt Av. Line to * * * Seventh Av. * * * at intersection of issuing line ” rendered the transfer valid, and that having tendered such transfer the plaintiff, because of unlawful ejectment from the defendant’s car, is entitled to'have his claim submitted to a jury.

The judgment appealed from should be reversed and a new trial granted, costs to abide the event.

Jenks, Hooker, Gaynor and Miller, JJ., concurred.

Judgment reversed and new trial granted, costs to abide the event.  