
    Timothy McCarthy, Respondent, v. International Railway Company, Appellant.
    Fourth Department,
    May 6, 1908.
    Railroad Law—penalty — section 39 — excessive fare.
    On the enforcement of a statute imposing a penalty, the party from whom the penalty is claimed has the benefit of any reasonable doubt.
    Where plaintiff procured a transfer which was improperly punched as to time, but it does not appear that this was done intentionally or otherwise than by mistake, and the conductor on the second car refused to receive the transfer the overcharge was, in view of the company’s large business and the other facts, “through inadvertence or mistake not amounting to gross negligence,” and a penalty under section 89 of the Railroad Law cannot be recovered.
    Appeal by the defendant, the International Railway Company, from a judgment of the Municipal Court of the city of Buffalo in favor of the plaintiff, entered in the office of the clerk of said court on the 9th day of December, 1907, upon facts stipulated by the parties.
    Norton, Penney & Sears and Dana L. Spring, for the appellant.
    
      Charles Newton, for the respondent.
   Williams, J.:

The judgment should be 2-eversed, with costs.

The action is to recover a penalty under section 39 of the Railroad Law (Laws of 1890, chap. 565), which reads as follqws : “ § 39. 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 inad/oertence or mistalce, not amounting to gross negligence, shall forfeit fifty dollars, to be recovered, with the excess so deceived, by the party paying the same ” (balance unimportant here).

The questions here involved are whether the overcharge of fare in this case was through inadvertence or mistahe, or whether it amounted to gross negligence. The plaintiff entered one of defendant’s street cars, paid his fare, and asked for and received from the conductor a transfer for another line. He left this car at the transfer point, and entered a car on the second line. Upon offering the transfer, the conductor refused to receive it, and compelled plaintiff to pay another fare. The transfer was improperly punched as to time. It was punched twelve-thirty p. m. It should have been two-thirty p. m. Under the rules of the company the second conductor could not accept the transfer, it being then two-thirty p. m. The plaintiff was. entitled to ride upon the second line upon a proper transfer, so as to pay but one fare on both lines. He was overcharged the second fare by reason of the transfer being improperly punched by the first conductor. The defendant’s business during the year 1907 was very large. It had 145 transfer points and employed 754- conductors. During the eleven months from January 1 to December 1, 1907, it issued 32,475,091 transfers and carried 96,587,325 passengers. The cars ran at intervals of ten minutes. The overcharge in question was on September 24, 1907, and on that trip, by the conductor of the first car, he issued 22 transfers and carried 44 passengers.

27either the plaintiff nor the conductor who issued the transfer was sworn, nor was there any stipulation as to the act of the conductor, how he came to improperly punch the transfer, and whether it was done intentionally or by mistake. It was stipulated merely that he did it. There seems to be no claim that the conductor intended to punch the transfer improperly. He had no interest or motive to do so. He gained nothing by it himself, and it does not appear that he knew the plaintiff, or had any desire to injure him. It was a mistake pure and simple — one liable to occur if the conductor was ordinarily the most careful of men. Men are imperfect, and will sometimes make mistakes in spite of their best efforts to be careful. This conductor was almost continually issuing these transfers. He issued 22 and carried 44 passengers on this one trip. There were 32,500,000 of transfers issued on defendant’s road in eleven months of 1907, and 96,500,000 of passengers carried during that time. This conductor had to collect fares, look after the passengers as they entered and left the car at different points, direct the stopping and starting of the car, to perform all the duties of .conductor besides issuing transfers.

It does not appear that he frequently, or ever before, made such a mistake as the one he is charged with here. Under the facts stipulated, and those alone, he should not have been found to be guilty of gross negligence in improperly punching this transfer. This penal statute was never designed to cover such a case as this. It was designed only to cover intentional wrong or reckless carelessness, in these particulars, in the transaction of the business of a railway company. It was designed for the correction of real evils, and not to enable individuals to recover penalties in cases of occasional mistakes liable to occur in case of the most careful conductors.

The trial court erred in finding this to be a case of gross careless ness and awarding judgment for plaintiff for this penalty.

“ In the enforcement of a statute giving a penalty, if there be a reasonable doubt, the party of whom the penalty is claimed is to have the benefit of it.” (Goodspeed v. Ithaca Street R. Co., 184 N. Y. 351; Chase v. N. Y. C. R. R. Co., 26 id. 525.)

' All concurred, except Kruse, J., who voted for a new trial upon the ground that the judgment is against the weight of the evidence.

Judgment reversed, with costs.  