
    Herbert R. Ward, Resp’t, v. The New York Central & Hudson River R. R. Co., App’lt.
    
      (Supreme Court, General Term, Fifth Department,
    
    
      Filed April 11, 1890.)
    
    Railroad—Ejection of passenger—Contract of passage.
    Plaintiff bought an ordinary ticket from Buffalo to Holley. He stopped at Albion and took the next train, but the conductor refused to take his-ticket, as it had been punched, and threatened to eject him if he did not pay his fare. Plaintiff got off at Murray and purchased a new ticket, but the conductor refused to receive it unless he paid the fare from Albion to Murray and on his refusal stopped the train and put him off. Held, that the new ticket was evidence of a new contract which plaintiff had a right to make; that the conductor had no right to refuse to recognize it and that defendant was liable.
    Appeal from an order, at the Orleans circuit, denying the defendant’s motion for a new trial on the minutes, after a verdict in favor of the plaintiff.
    
      A. II. Harris, for app’lt; W. K Hobby, for resp’t.
   Dwight, P. J.

The action was for damages for being put off from defendant’s train. The plaintiff bought his ticket at Buffalo entitling him to transportation from that place to Holley, on the Niagara Falls branch of the defendant’s road. It was the ordinary ticket, without limitation as to time or train. He rode to Albion, where he got off, and having transacted his business there, resumed his journey by the next train which stopped at that station. The conductor of the second train inspected his ticket and told, him it was punched to Holley and he must pay the fare from Albion to Holley or be put off the train. The plaintiff protested that he had paid his fare to Holley and had not ridden beyond Albion on the ticket, and claimed the right to be carried the rest of the way. The conductor told him he should put him off at Murray, which was the next station. He testified that he was not put off, nor told to get off at Murray, but that while the train was standing at that station he decided, in order to avoid further dispute with the conductor, to buy another ticket frgm Murray to Holley, and so he did.

The station agent at Murray sold him such a ticket on his application, although the conductor of the train was present and declared that he would not accept the new ticket unless the plaintiff also paid the fare from Albion to Murray. The plaintiff resumed his seat in the train; the conductor came to him as soon as the train started, and the plaintiff tendered him the new ticket. The conductor refused to receive it unless he also paid the fare from Albion to Murray, and upon the plaintiff’s refusal to do so, stopped the train and put him off.

We are by no means prepared to concede that the plaintiff forfeited the right to the further use of his ticket by leaving the train at Albion without having the ticket endorsed for a “ stopover.” Counsel for the defendant contend for the affirmative of this proposition upon the authority of two cases which he cites.

They are Terry v. Flushing R. R. Co., 13 Hun, 359, and Kelsey v. Michigan Cent. R. R. Co., 28 id., 460. In the former of these cases, the ticket held by the passenger was an “ excursion ticket,” so designated on its face, and was held, by its terms, to limit the holder to a continuous passage. The latter of the two cases is in point, in support of the proposition, but is, itself, not supported by any one of the cases in this state, referred to by the learned judge who wrote the opinion as establishing the rule stated by him. Thus Auerbach v. N. Y. C., etc., R. R. Co., 89 N. Y., 281, was the case of a ticket with coupons, from St. Louis to Rew York, which was, by its terms “ good for one continuous passage to point named in coupon attached.” The only question in that case was whether the express limitation to a continuous passage applied to the whole journey or to the passage over each of the connecting roads whose coupons were attached to the ticket It. was held “ that the contract evidenced by the ticket was not by any one company, or jointly by all the companies named, but was. a separate contract by each company for a continuous passage over its road.” Kessler v. The Same R. R. Co., 61 N. Y., 538, involved only a question of the responsibility, as betwreen several companies, for the luggáge of the passenger. Barker v. Coflin, 31 Barb., 556, was the case of a ticket by its terms “good for a continuous trip only.” In Hamilton v. N. Y. C. R. R. Co., 51 N. Y., 100, judgment for the plaintiff was reversed by the commission of appeals for error of the trial judge in refusing to instruct the jury to disregard evidence of slanderous and abusive epithets applied to the plaintiff by the conductor. Lott, Oh. 0., was of opinion that the ticket, though not so limited by its terms, was good for one continuous passage only; but all the other members of the court expressly declined to concur on the last named ground.

The case of Elmore v. Sands, 54 N. Y., 512, referred to by Dykman, J., in Terry v. Flushing R. R., supra, as authority for the dictum that the,right to stop off exists only by means of “stopover tickets,” was the case of a ticket “ good for this date only; ” and the only question considered was whether it was good on any date other than that which it bore. And Beebe v. Ayres, 28 Barb., 275, also cited by Judge Dykman, was the case of a ticket bearing on its face the words “ good for this trip only,” and was a case of a mis-trial besides.

The ticket which the plaintiff bought and paid for at Buffalo-was evidence of the defendant’s contract to convey him to Holley "by any passenger train which stopped at the latter station. The contract was not limited, by its terms, to the day on which the ticket was purchased, nor to the train by which the journey was commenced. “Rule 24,” of the company’s instructions to conductors, which was put in evidence by the defendant, plainly recognizes the right of the passenger to stop over at any station of the road, and directs the conductor to make' an endorsement on the ticket only in case the stop-over is to be made between “punching stations." There is nothing jn the case to charge the plaintiff with knowledge of this instruction at all, nor with knowledge that Albion, one of the chief towns on the route, was not a punching station. It seems that the punching stations designated in the instructions were Buffalo, Tonawanda, Lockport and Medina, and that the ticket was required to be punched once after leaving each of those stations. If the instruction was obeyed in this case, then it is plain that the punch marks in the plaintiff’s ticket were ■evidence that it had been used beyond Medina, and nothing more. "They were no evidence that it had been used beyond Albion, because they were made before Albion was reached. It maybe that .as between the conductor and his employer it was the duty of the .former to give to the marks an arbitrary significance, which in this ■ease was contrary to the fact; but it would seem that to do so would be at the employer’s risk, and that if it violates the rights of the passenger the employer must bear the consequences.

But the plaintiff’s right to recover does not depend upon the application of the principles so far discussed. He resumed his journey by the next train, at Albion, relying in good faith, as the jury has found, upon his ticket as evidence that his fare was paid to his destination.^ The conductor informed him that his ticket was not good, and that unless he paid his fare again from Albion to Holley he should be put off the train at Murray, the next station. The plaintiff contented himself with a remonstrance, and on arriving at Murray, left the train and bought a new ticket from, that station to his home. We can entertain no doubt that he was ■entitled to ride on that ticket from Murray to Holley by any train that stopped at both those stations, including the one which then stood on the track at Murray. He had committed no breach of the peace, nor created any disturbance, nor been a trespasser on that train; and he owed the defendant nothing. He had once paid his fare to Holley, and he entered the train at Albion believing that the ticket which he then had was evidence of that fact. The •conductor refused to receive it as such, and threatened to remove the plaintiff from the train, but carried him to Murray because that was a stopping place. There the plaintiff voluntarily waived what he believed to be his rights under the old ticket and bought a new one, which was evidence of a new contract. He had done nothing to forfeit his right to make that contract, and the conductor had no authority to forbid him to make it, nor to refuse to recognize it.

The Massachusetts case of Swan v. M. & L. R. R. Co., 132 Mass., 116, upon which the defendant relies, is not in point. In that case the plaintiff was in the wrong from the first. He had entered the train without a ticket, and refused to pay the fare rightfully demanded of- him. He was a trespasser on the train, and was properly expelled from it; and he owed the defendant for his fare from the point where he first came on board. That cannot be said of the plaintiff in this case. Ho one will contend that an action could be maintained against the plaintiff for his fare from Albion to Murray. Such a claim, if made, would be determined upon common law evidence, and not upon the effect, contrary to the fact, which the conductor’s instructions required him to give to the punch marks in the plaintiff’s ticket

The cases of Nelson v. L. I. R. R. Co, 7 Hun, 141, and O'Brien v. N. Y., C., etc., R. R. Co., 80 N. Y., 238, were cases where the plaintiff entered the cars without a ticket and refused to pay the fare, and both turned, one in favor of the plaintiff and one in favor of the defendant, upon questions not involved in this case.

We think the defendant’s exceptions point to no error which vitiates the verdict, and the defendant’s motion for a new trial was properly denied.

The order should be affirmed and judgment directed for the plaintiff on the verdict.

Macombeb and Ooblett, JJ., concur.  