
    Frank Wysocki, Respondent, v. The Erie Railroad Company, Appellant.
    Fourth Department,
    March 5, 1913.
    Railroads — penalty for exacting fare twice in violation of section 69 of the Railroad Law — evidence.
    In an action to recover a penalty under section 59 of the Railroad Law, for the acts of the agents of a railroad company in requiring the plaintiff to pay the lawful rate of fare twice over, the plaintiff is bound to show by a preponderance of evidence that the acts of defendant’s agents were not by reason of the “inadvertence or mistake” of those'agents, “not amounting to gross negligence.”
    Hence, where in such action it appears that the plaintiff applied to a ticket agent of the defendant shortly before train time for a ticket for himself and transportation in the baggage car for his dog; that he was charged both for his ticket and for the transportation of the dog, but that the agent handed him only the check for the dog, and that in reply to his question, “Is that ticket going to carry me and the dog?” the agent said, “Yes; ” that there was no evidence that the plaintiff in asking such question exhibited his ticket to the agent; that the plaintiff having no passenger ticket, the conductor required him to pay his fare, and that the agent from whom the plaintiff purchased his tickets, upon discovering that he had cash to the amount of plaintiff’s passenger ticket more than the- number of tickets sold called for, the defendant caused such amount to be tendered to the plaintiff on the following day, but he refused to accept the same, a verdict in favor of the plaintiff is against the weight of the evidence.
    Kruse and Robsor, JJ., dissented.
    
      Appeal by the defendant, The Erie Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Chautauqua on the 12th day of August, 1912, upon the verdict of a jury, and also from an order entered in said clerk’s office on the same day, denying the defendant’s motion for a new trial made upon the minutes.
    Action to recover a penalty under section 59 of the Railroad Law for demanding and receiving excessive rate of fare for plaintiff’s transportation upon one of defendant’s trains from Dayton, N. Y., to Dunkirk, N. Y., on October 31, 1911. The lawful rate of fare was fifty-five cents. Plaintiff applied to the ticket agent at Dayton shortly before train time for a ticket for himself and transportation in the baggage car for his dog to Dunkirk. He was charged fifty-five cents for his ticket and twenty-five cents for his dog. The agent handed him only the check for the dog, and on the train, having no passenger ticket, the conductor required him to pay his fare in accordance with the rules of the defendant in such cases. The conductor, before the train reached Dunkirk, telegraphed to the agent at Dayton to verify plaintiff’s claim that he had purchased a ticket, and it being discovered that night by the agent at Dayton that he had fifty-five cents more in his cash than his account of tickets sold amounted to, the company caused the fifty-five cents to be tendered to plaintiff at Dunkirk the next day, and plaintiff refused to accept it, and immediately brought this action.
    
      Marion H. Fisher, for the appellant.
    
      Nelson J. Palmer, for the respondent.
   Foote, J.:

Plaintiff brings this action to recover a penalty claimed to have been incurred by defendant for violation of section 59 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), which is as follows:

“§59. Penalty for excessive fare. Any railroad corporation, which shall ask or receive more than the lawful rate of fare, unless such overcharge was made through inadvertence or mistake, not amounting to gross negligence, shall forfeit fifty dollars, to be recovered with the excess so received by the party paying the same; but no action can be maintained therefor, unless commenced within one year after the cause of action accrued.”

This is a penal statute. To recover under it plaintiff has the burden of bringing the case clearly within its terms, and defendant is entitled to the benefit of any reasonable doubt of the application of the statute to the case as made. As was said by Marvin, J., in Chase v. N. Y. C. R. R. Co. (26 N. Y. 523): “In statutes giving a penalty, if there be reasonable doubt of the case made upon the trial or in the pleadings coming within the statute, the party of whom the penalty is claimed is to have the benefit of such doubt.” This doctrine is cited with approval in Goodspeed v. Ithaca St. R. Co. (184 N. Y. 351).

To recover here plaintiff was bound to show by preponderance of evidence that the acts of defendant’s agents, by which he was required to pay the lawful rate of fare twice over, was not by reason of the “inadvertence or mistake” of those agents “ not amounting to gross negligence.” This was not a case of charging an excessive rate of fare within this statute, but a case of charging the lawful rate of fare twice over because of the mistake of defendant’s agents, not as to the lawful rate, but as to whether it had once been paid, and is like the case of Robinson v. International R. Co. (54 Misc. Rep. 163), where Justice Brown ruled that the statute did not apply to the case of a street car conductor demanding and collecting the lawful fare of five cents the second time, under the mistaken belief that the fare had not been previously paid.

But if I am wrong in this view, still I think plaintiff did not make a case to show that the failure of defendant’s ticket agent at Dayton to give plaintiff a ticket at the time he paid his fare was due to anything more than ordinary inadvertence or mistake. The evidence shows that this agent had four trains to take care of at this station at this time, and that he was alone in the ticket office; that ordinarily the baggageman attended to issuing the dog checks, but at this time the baggageman was engaged in transferring baggage from one train to another, and so the agent in the midst of his other duties, undertook to and did issue the dog check to plaintiff. Issuing the dog check involved writing the details upon three separate pieces of cardboard attached together, getting plaintiff’s signature, tearing them apart and preserving one section for the agent’s files, all of which occupied the attention of the agent a considerable period of time, and when this was finished it is reasonably apparent from the circumstances disclosed that the agent was then under the impression that he had given out the railroad ticket to plaintiff for he then handed him only the dog check. Plaintiff’s testimony is that he then waited for a time at the ticket window and then said to the ticket agent: “ Is that ticket going to carry me and the dog ? ” The agent said, “Yes.” He does not say that he then exhibited the dog check to the agent as the ticket he was talking about, and his statement is not at all inconsistent with the agent’s belief or understanding that plaintiff then had his passenger ticket. A little later, after plaintiff’s friends had told him that he had nothing but a dog check and that it was not a ticket that would carry him, plaintiff says he went hack to the agent and said: “Is that ticket going' to carry me and the dog ? ” and the agent said, “Yes, all you have got to have is the chain.” Here again plaintiff fails to state whether he exhibited his dog check.to the agent and here again the agent may have, and we may fairly infer did assume that plaintiff had his passenger ticket. It is true that plaintiff’s companion Rusinowski when pressed on cross-examination said that plaintiff did show the agent the dog check when making the last inquiry of the agent, but he did not so state on his direct examination, nor did his associate or the plaintiff so testify.

The conductor of the train was, of course, right in collecting the fare from the plaintiff. It was his duty to do so and it was the duty of the plaintiff to pay because he had no ticket, but the jury has evidently punished the company in this case because of the conduct of this conductor. The case must turn upon the conduct of the ticket agent, and the case as made does not show that the failure of the ticket agent to give the plaintiff a passenger ticket was not through inadvertence or mistake. On the contrary, no other inference can properly be drawn from the evidence than that it was. Plaintiff could not show that the agent’s inadvertence or mistake amounted to gross negligence, without showing that he exhibited to the ' agent the ticket concerning which he asked the questions and made the agent aware of the fact that he was inquiring whether he himself could ride on this dog check as a railroad ticket. He did not so testify, nor could the jury properly infer from the evidence in the case, in view of the penal nature of • the action and the rule as to the burden of proof, that the ticket agent was made aware of the fact that the ticket concerning which plaintiff’s two inquiries were made was simply a dog check.

Our conclusion is that the verdict in this case is against the weight of the evidence, and that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.

All concurred, except Kruse and Robson, JJ., who dissented.

Judgment and order reversed and new trial granted, with costs to appellant to abide event..  