
    Kent v. Railroad Company.
    
      Railroad — Thousand mile passenger ticket — Conditions—Waiver.
    A railroad company sold and delivered a thousand mile ticket to a purchaser who paid in money the usual rate to the class of travelers to which he belonged, aud who secured it in ignorance of the following directions printed thereon: “ Conductors will not honor this ticket unless properly stamped and signed by the purchaser, and will strictly enforce the above conditions.” Instructions of the company to its ticket agents, and the uniform custom regulating the sale of such tickets required that the purchaser sign certain conditions printed thereon before delivery to them. The ticket in question was delivered to the purchaser and several times honored by the company’s conductors without requiring him to sign the conditions.
    
      Held: The company thereby waived such requirement, and its conductor was not justified in ejecting the purchaser from his car by reason of his refusal to sign the ticket and to pay the usual fare in money for his proposed passage.
    (Decided June 28, 1887.)
    Error to tbc Circuit Court of Knox County.
    
      Kent, the plaintiff in error, purchased of the ticket agent of the Baltimore & Ohio Railroad Company what is called a “ commercial traveler’s mileage ticket.” This ticket expressly showed upon its face that D. V. Kent had the right to travel one thousand miles on the Baltimore & Ohio Railroad upon the conditions named in the contract attached and made a part thereof.
    The contract which was referred to contained six different conditions which the purchaser was required to agree to to entitle. him to ride upon the ticket. At the end of these conditions was a place left for his signature, and immediately under the place for the signature was this direction: “ Conductors will not honor this ticket unless properly stamped and signed by the purchaser, and will strictly enforce the above conditions.”
    Kent purchased this ticket without signing it, and after-wards presented it to conductor Blair, who refused to honor it unless Kent would sign the contract to which reference has been made. This he refused to do and was ejected from the train. He again presented the ticket upon a subsequent occasion, and again refused to sign it, and was again ejected from the train, the conductor talcing up and retaining his ticket. For being put off the train upon these two occasions, this suit was brought.
    There were no objections on the part of the plaintiff to any part of- the contract which he was required to sign, except that contained in the sixth clause, which reads as follows:
    “ 6. That in consideration of the reduced rate at which this ticket is sold, and the privilege of using it on all regular passenger and such freight trains as are advertised to carry passengers, the purchaser assumes all risk of accidents, and expressly agrees that the company shall not be liable under any circumstances, whether of negligence or fraud on the part of its agents, or otherwise, for any personal injury, or for any loss of or injury to his or her property or baggage while using the ticket, and agrees that he or she will not consider the company as common carriers, or liable to him of her as such.”
    
      The plaintiff’s evidence tended to show that he had never seen one of these tickets and had no knowledge of the conditions ; that the agent did not ask him to sign the contract, nor did he call his attention to it, nor did he learn that the ticket contained such conditions until sometime afterward. When he called for the ticket, the agent informed him that the price was twenty-five dollars, but upon learning that plaintiff was traveling for Collier’s Publishing House, the agent told him that he was entitled to the ticket at shippers’ rates— twenty dollars. Nothing further was said of the conditions and considerations upon which the ticket was sold.
    The plaintiff used the ticket on several occasions without any objection being made to it because of the conditions not being signed. The conductor to whom it was first presented honored the ticket, entered the date when presented and detached the leaf containing the instructions, and forwarded it together with the coupons detached to the proper officer at Baltimore. After the ticket had thus been formally honored, and after it had been used on several occasions, the plaintiff presented it in payment of his fare over the Straitsville division from Newark to Junction City. The conductor refused to accept the ticket for the reason that plaintiff had not signed the conditions. The plaintiff then told the conductor that he had purchased the ticket without any knowledge of the conditions and without being required to sign them; that it had been honored on several occasions and that he was not willing to agree — especially to the sixth condition, releasing the company from all liability from fraud or negligence of its agents, and insisted that the conductor should accept the ticket for payment of his fare. This the conductor still refused to do, and threatened to eject the plaintiff unless he would sign the conditions or pay his fare in money. The plaintiff refused to do either, and was ejected from the train as before stated.
    The instructions to the ticket agents, and the theretofore invariable. custom, required that the purchasers of such tickets sign the conditions before the delivery to them of the tickets.
    The suit was tried in the court of common pleas, and a verdict returned in favor of Kenfcj the plaintiff.
    
      A bill of exceptions was taken, setting out all of the testimony and several specific charges which were asked by the defendant, and also the charge of the court to the jury. The charges as requested by the defendant, were not given.
    The judgment of the court of common pleas was reversed by the circuit court, for the reason that it was found that the common pleas erred in refusing to instruct the jury as* prayed for in the first and second charges requested by plaintiff in error.
    The single question presented is, whether the circuit court erred in reversing the judgment of the common pleas court upon the grounds stated in this record.
    The requests so refused are as follows:
    
      “ 1st. — The plaintiff sues upon a written and printed contract, being the ticket in evidence, and called a one thousand mile ticket, which was issued by defendant and delivered to plaintiff, by the terms of which the defendant agreed to allow the plaintiff to ride upon its cars 1000 miles on the roads named in the ticket, upon certain conditions, one of which was that he sign the contract himself at the point designated in the ticket; this was not a completed contract until it was so signed by the plaintiff, and he had no right to ride on defendant’s trains until he did so sign it, and if he failed so to do, and when requested by the conductor so to do, and his refusal to pay fare, and he was afterwards ejected from the train by the conductor for the reasons aforesaid without using more force than was necessary to so eject him, he cannot recover in this case.
    “ 2d. — The ticket shows upon its face that it was the duty of the conductor not to honor the ticket Until signed by the plaintiff, and the fact that one or more conductors of the defendant failed in their duty in this regard, will not amount to a waiver of the terms upon which the plaintiff was entitled to ride upon, or a change of the contract, unless the plaintiff shows that the conductors who allowed him to ride upon defendant’s trains without so signing said conditions, had authority to waive the conditions contained in the ticket.”
    
      Critehfield & Graham', for plaintiff in error.
    
      
      J. H. Collins, for defendant in error.
   Owen, C. J.

The instructions requested and refused ignored the proof which tended to show that Kent received the ticket from the company’s agent without actual knowledge of the conditions and directions written therein. They also presupposed that, by receiving the ticket, Kent acquiesced in all its terms and conditions, in spite of the fact (which the evidence tended to prove) that he may have been wholly ignorant of them.

It is well settled that the purchaser of a railroad ticket does not, by its mere acceptance, acquiesce in, and bind himself to, all the terms and conditions printed thereon in the absence of actual knowledge of them. Balt. & O. R. Co. v. Campbell, 36 Ohio St. 647; Davidson v. Graham, 2 Ohio St. 135; Jones v. Voorhes, 10 Ohio, 145; Rawson v. Penn. Railroad Co., 48 N. Y. 212; 2 Wharton on Evidence, sec. 1243; Brown v. Eastern R. Co., 11 Cush. 97; Malone v. Boston & W. R. Co., 12 Gray, 388; Camden & Amboy R. W. Co. v. Baldauf, 16 Pa. St. 67; Wade on Notice, sections 543, 552, 554, 555; Lawson on Carriers, sections 106, 107; Blossom v. Dodd, 43 N. Y. 264; Quimby v. Vanderbilt, 17 N. Y. 306.

There is nothing iri the circumstance that the ticket in the case at bar was sold at a rate reduced from the regular fare, to take it out of the rule. The rate was the usual and established one allowed to a numerous class of patrons comprising commercial travellers whose principals were shippers ' over the company’s road.

The contract between Kent and the railroad company was made when he bought his ticket, received and paid for it. Rawson v. Penn. R. Co., supra. Neither party could, after that, change its terms or impose new conditions upon its enforcement .without the consent of the other. According to the company’s instructions to agents, and by the uniform custom regulating the sale of such tickets, they were required to be signed before their delivery to the purchasers. The company saw fit, in the case at bar, to dispense with this requirement. It received the plaintiff’s money, delivered him the ticket, in his ignorance of any request that he sign it, honored it for several trips without first requiring him to sign its conditions. It thereby' waived this requirement, and its conductor was not justified, while it still retained plaintiff’s money, in ejecting him from its cars by reason of his failure to sign the ticket which had already gone into full effect between the parties, and his failure to pay the usual fare in money for a passage which was already paid for.

The conclusion we have reached relieves us of a consideration of the question arising upon the claim of counsel that the sixth condition of this ticket was against public policy, and would have been void if signed.

The trial court was right in refusing the instructions requested.

The judgment of. the circuit court is reversed and that of the court of common pleas affirmed.  