
    BAGGETT v. THE BALTIMORE & OHIO RAILROAD CO.
    Railroads ; Rights of Holders of Tickets.
    Where a ticket agent by mistake or fraudulent design sells to a person an expired and worthless ticket, which the conductor refuses to accept and in default of payment of fare compels the holder to leave the train, but uses no physical force, the latter cannot maintain an action of trespass against the railroad company for the expulsion.
    No. 243.
    Submitted April 9, 1894.
    Decided June 15, 1894.
    Hearing on a bill of- exceptions by the plaintiffs in an action of trespass.
    
      Judgment affirmed.
    
    The Court in its opinion stated the case as follows:
    The declaration alleges: “That the defendant was at the time of committing the grievances herein complained of and still is a corporation of the State of Maryland, but having an office and place of business in the District of Columbia, and was a common carrier of passengers for hire by railroad cars or coaches propelled by steam, to wit, from and between a certain town or station called Knoxville, in the State of Maryland, and city of Washington, in the District of Columbia, and that heretofore, to wit, on the 9th day of August, 1889, the female plaintiff, who then was and still is the wife of the plaintiff John B. Baggett, paid the defendant, through its agent in charge of' its ticket office at said Knoxville, the sum of one dollar and fifty-five cents, which was then and there the price fixed, charged and received by the defendant for transporting a person from said Knoxville to said city of Washington.
    “And the said female plaintiff then and there, to wit, on the 9th day of August, 1889, at' said Knoxville, after the payment of fare as aforesaid, and after the receipt from the defendant of a ticket as evidence of the payment of her fare from said Knoxville to said city of Washington, entered a car or coach of the said defendant provided and used for transportation of passengers from said Knoxville to said Washington, which car was attached to a regular passenger train of the defendant then about departing from said Knoxville for said Washington, as she had the right to do according to the rules and regulations of the said defendant, for the purpose of being carried by the defendant from said Knoxville to said city of Washington, and the said defendant, while said female plaintiff was so legally and properly in said car and after said train had left said Knoxville en route for said Washington, and after carrying the female plaintiff about five miles towards the city of Washington, assaulted her and with force and arms and with insulting and abusive language and in the presence of a large number of other passengers then and there on said train forcibly ejected her from said train at an uninhabited and desolate place, where she could procure neither food nor shelter, and would not and did not permit her to continue her journey on said train.
    “ And the said female plaintiff, then and there being in delicate health and feeble condition, was necessarily delayed and detained at said place where she was ejected from said train by the defendant for a long time, to wit, for eight hours, without food and shelter, and was put to great trouble and inconvenience and was greatly harassed, annoyed and delayed in reaching her destination, to wit, the city of Washington, and was necessarily exposed for a long time, to wit, for eight hours, in stormy and inclement weather.
    “ And the plaintiffs say that by reason of the premises the said female plaintiff was caused great mental and bodily pain and suffering and became and was sick, sore, lame and disordered and so continued for a long time, to wit, from thence hitherto, to her damage ten thousand dollars.
    
      “ The plaintiffs therefore claim ten thousand dollars damages, besides costs.”
    
      At the trial of the case in the court below, evidence was given on behalf of the plaintiffs tending to prove that Mrs. Baggett, the female plaintiff, went to the railroad station of the defendant at Knoxville, Md., about noon on the 9th day of August, 1889, and asked the person whom she found there in charge of the ticket office and station for a ticket from that place to Washington, D. C.; that he handed her a ticket for which she paid him $1.55; that the train on which she expected to leave for Washington was then about due; that without reading the ticket she placed it in her pocketbook, and the person from whom she. purchased it checked her trunk and handed her the check, and immediately thereafter the train stopped at the station and she entered one of the cars where there were a number of other passengers and took a.seat; that soon after the train started towards Washington, the conductor of the train came to her for her ticket and she handed him the one she had just before purchased of the agent at Knoxville; that he looked at it and said, “ I can’t pass you on that ticket; it is not a good one.” To which she replied, “ What is the matter with it? I have just bought it from your agent at the station.” He answered, “It is an old excursion ticket, and it is overdue-several days overdue.” She then asked, “What shall I do?” To which the conductor replied, “ You will have to get off the train at the next station ”; that the train was then close to a station, and the conductor pulled the bell and stopped the train and she left the car; that as she was leaving the car he informed her that she might continue her journey by paying the regular fare, which she was unable to do because she had not sufficient money, and accordingly left the train at a small station called Berlin. A ticket, which is admitted to be a copy of the ticket held by the plaintiff, was introduced in evidence, and is printed on page 11 of the record, and was the return coupon of a round-trip ticket issued by the defendant company for a trip from Washington, D.- C., to Harper’s Ferry and return, and contained a provision upon the face of it that it would only be good for passage within two days including the day of sale as stamped on the back of the ticket, and the evidence tended to show that the date stamped upon the back was July 18 or 20, and that Knoxville was a station of the defendant’s road between Harper’s Ferry and Washington.
    The evidence on behalf of the plaintiff also tended to show that the plaintiff was obliged to remain at Berlin until 5 o’clock in the afternoon of the samé day; that there was no hotel or boarding-house there where a lady could get accommodations; that it was a hot and uncomfortable day; that the plaintiff was in delicate health, and was obliged to remain at the station without food and amidst very unpleasant surroundings; that she procured a messenger to return to Knoxville station with her ticket, and that the messenger returned with- a note from the agent enclosing another ticket, upon which she came to Washington on the next train, which passed Berlin at about 5 o’clock, reaching her home in Washington about 8 o’clock that evening. The plaintiff testified that the conduct of the conductor towards ' her when she was compelled by him to leave the train was harsh and disagreeable, although no physical force was used, she yielding to his demand to leave the train; that his conversation with her was in a loud voice and in the presence of a large number of passengers then in the same car, and that by reason of her ill health and the humiliation and mortification to which she was subjected, and the delay, exposure and anxiety, she became so sick that she was confined to her bed for two weeks and from which she did not recover for a long time thereafter. '
    The plaintiffs called as a witness J. F. Reed, the agent in charge of the office at Knoxville on the day when the plaintiff purchased her ticket. This witness testified that he did not hand the ticket to the plaintiff, but sold her a straight ticket to Washington; that the excursion ticket had been given him by a person some time before and was lying just inside the window at the time, arid she got it through mistake. Thereupon, the attorney for the plaintiff showed the witness a note which he identified as having been written by him to the plaintiff, dated the 9th of August, 1889, in which he said: “I gave you the ticket through mistake, but the conductor should have taken you on it, as it is good for passage,” and offered the letter in evidence, to which the defendant’s attorney objected, and the objection was sustained, which forms the subject of the first bill of exceptions.
    At the conclusion of the testimony, the court instructed the jury to return a verdict for the defendant, which forms the subject of the second bill of exceptions. The assignment of errors is as follows:
    1. The court erred in instructing the jury to return a verdict for the defendant upon the pleadings and evidence in the case.
    2. The court erred in refusing to permit the letter of the witness Reed to be read in evidence.
    It may be proper to state (though we do not think it important), that the defendant called N. A. Aldrich, the conductor on the train in which was the car from which Mrs. Baggett had testified she was expelled, who testified substantially as follows:
    Q. Do you recollect an incident that happened on the 9th day of August, 1889? — A. Yes, sir.'
    Q. Will you please describe what took place on that occasion, after leaving Knoxville? — A. After leaving Knoxville I went through my train, and I might have gotten one or two other tickets; I can’t just rememher now. I came to the lady in question, and she handed me a ticket reading from Harper’s Ferry to Baltimore. I looked at the ticket and turned it over and looked at the date. The ticket, I think, was dated July 18th, 1889, and it was á two-days’ excursion ticket. This made it out of date some 12 or-15 days — I don’t remember now exactly — or probably a little longer than that. I told Mrs. Baggett that the ticket she had was not good. She wanted to know what was the matter with it, and I said, it’s out of date. She said, I bought that ticket at Knoxville. I said, bought it at Knoxville? She said, yes. I said there was some mistake about this, and she said, no; I bought the ticket at Knoxville. I said to her that the ticket was no good and was out of date, and that it was an old Harper’s Ferry ticket. She said, what am I going to do? I said, I can’t accept it, and the only thing I can do is to charge you your fare. She says, I won’t pay that; I got my trunk checked on that ticket, and she showed me her check. Then I told her, I can’t help that; the ticket is out of date, and if I accept that ticket the chances are that I will have to pay your fare after it goes into the auditor’s office. She said that she would not pay her fare, and what should she * do. I said, my advice to — would be to get off at Berlin and go back and have the mistake rectified. If you bought the ticket at Knoxville, and if it is a mistake, the agent will certainly rectify it. By that time we were nearly to Berlin. I had passengers to get off and some to get on. I called out to Mrs. Baggett, or to the lady, to get off at Berlin, and after the train came down to a stop I assisted her down, as, I would any other lady or a passenger getting from a train. She asked me what time the next train went back to Knoxville, and just at that moment I could not tell her. I referred her to the agent there at Berlin, and I said, he will give you the time. We then started on. I pulled the bell and started on.”
    Aldrich denied that he used any violence or touched the person of Mrs. Baggett except to assist her in getting ; from the train, as he would any other lady passenger, and affirmed that his manner toward her was gentlemanly and polite. He said the date was stamped on the back of the ticket offered to him by the female plaintiff.
    
      Mr. Wm. G. Johnson and Mr. W. L. Cole for the plaintiffs in error.
    1. It has been held that when a passenger finds himself in such an unfortunate predicament, for which the railroad company and not himself is to blame, his only proper course is to yield to the demands of the company and again pay his fare, or leave the train in order to shield the company from the consequences of its own mistake, and, if he does not do so, and is ejected from the train, he is entitled to no damages' from the company for the indignity done him, and the humiliation and mental and physical suffering he is thus subjected to. See Mackay v. R. R. Co.,- 34 W. Va., 65; Yorton v. R. R. Co., 54 Wis., 234; R. R. Co. v. Griggen, 68 Ills., 499; Townsend v. R. R. Co., 56 N. Y., 295. This view of the law is not only opposed to reason and justice, but is contrary to the great weight of authority.
    Below are presented some of the numerous cases in' which this question has been decided, and the defendants held liable in damages, in actions in tort, for putting the passenger off the train. Burnham v, R. R. Co., 63 Me., 298 ; Palmer v. R. R. Co., 3 S. C., 580; Hamilton v. R. R. Co., 53 N. Y., 25 ; R. R. Co. v. Rice, 64 Md., 63. Cases in which the circumstances were similar to the last mentioned case are R. R. Co. v. Fix, 88 Ind., 381; R. R. Co. v. Bray, 125 Ind., 229; R. R. Co. v. Cope, 36 Ills., 97; R. R. Co. v. Winter, 143 U. S., 60. See also Murdock v. R. R. Co., 137 Mass., 293; Head v. R. R. Co., 79 Ga., 258; R. R. Co. v. Rather, 21 S. W. R., 951. See also Hufford v. R. R. Co., 64 Mich., 631; R. R. Co. v. Reilly, 9 So. Rep., 443.
    2. It was error to reject the letter of Reed to the plaintiff offered in evidence.
    Reed was the agent of the defendant who sold the ticket to the plaintiff. He was a hostile witness called to prove an important fact which the plaintiff could not prove in any other way. His testimony was a surprise to the plaintiff, being in contradiction of his written statement made to her on the day he sold ’ her the ticket. Under these circumstances the plaintiff was not bound by the testimony of the witness, but had the right not only to examine him as to prior statements inconsistent with his testimony, but to impeach and contradict him. 1 Greenl. Ev., §444; 1 Wharton’s Ev., §549; U. S. v. Budd, 144 U. S., 165 ; Becker v. Koch, 104 N. Y., 394.
    But the letter proven as it was to have been written by the agent of the defendant and in respect to a matter within the scope of his agency should have been allowed to go in evidence as an admission of the defendant having a direct bearing on the facts at issue in the case.
    An essential question in the case was whether the plaintiff was rightfully on the train as a passenger. The declaration contained in this letter if true, would prove that she had a good ticket which the conductor ought to have accepted for her fare. The plaintiff was entitled to benefit of this admission by the defendant.
    Another issue in the case is whether the plaintiff was in fault in accepting the ticket from the agent, if in fact it appeared on the face of the ticket that it was not good. This letter would be evidence in favor of the plaintiff on this issue.
    
      Mr. G. E. Hamilton and Mr. M. J. Colbert for the defendant in error.
   Mr. Chief Justice Bingham,

of the Supreme Court of •sthe District of Columbia, who sat with the court in the hearing of this cause, in place of Mr. Justice Morris, delivered the opinion of the Court:

It seems to be manifest that the first assignment of error raises the only material question to be now considered, because in order to sustain the instruction of the court for the jury to return a verdict for the defendant, every material fact which the evidence of the plaintiff tends to ■prove must be regarded by us as though fully proved. The plaintiff’s own testimony was to the effect that the ticket which she offered to the conductor was the identical ticket which the ticket agent gave to her in exchange for her money, and upon her demand for a ticket from Knoxville to Washington.

This fact must therefore be regarded as true in considering the first assignment of error, and the testimony of the ticket agent that the plaintiff took from the window the wrong ticket cannot be allowed to have any effect in this regard, whatever might have been its weight had the case been submitted to the jury for its determination upon the evidence. So, too, it follows that the claim of counsel for the appellant that the letter of the ticket agent to the female plaintiff should have been admitted because it would tend to discredit the testimony of the ticket agent and would operate as an admission of the appellee that their agent had delivered to the female plaintiff the identical ticket which she had offered to the conductor, is of no importance in determining the question raised by the first assignment of error. The declaration is in trespass,- and the facts which the evidence tended to prove must have been such as if found to be true by the jury would have sustained the cause of action set forth in the declaration.

Assuming, then, that the female plaintiff asked the agent for a ticket from Knoxville to Washington, and paid him the sum which he demanded therefor, and that she received from him the ticket which she afterwards offered to the conductor, in the belief on her part that it was such a ticket as .she had asked and paid for, and that being*' hurried she received a check for her trunk and entered the train; that upon offering her ticket she was told that it was worthless, being the return coupon of an excursion ticket from Washington, to Harper’s Ferry and return limited to two days, and bearing the date of a day some three weeks prior to that day, and waá told that unless she paid her fare she would have to get off the train; and that not having sufficient money to again pay her fare and feeling that she must do as he told her, his manner being harsh and disagreeable, though he offered no physical violence, she left the train when it reached the next station — would these facts entitle the appellants to a verdict?

It is not to be denied that the decisions of courts are not in harmony upon the question of the duty of a conductor of a train on a railroad, and the rights of a passenger under such circumstances. We are of the opinion, however, that much of the apparent conflict disappears upon a careful examination of the cases. There is a class of cases where it has been held that the conductor was justifiable in expelling the passenger when on the cars without a ticket, but who claimed to the conductor and proved on the trial that he had purchased and paid for a passage over' the road of the defendant but had lost his ticket, or it had been prematurely taken up by a conductor of the same company, who had failed to give the passenger any evidence of his right to continue his journey to be presented to a subsequent conductor, or was otherwise without any evidence of his right to be conveyed on the train. As of this class may be cited Bradshaw v. R. R. Co., 135 Mass., 407 ; Shelton v. R. R. Co., 29 Ohio St., 214; Yorton v. R. R. Co., 54 Wis., 234; R. R. Co. v. Griffin, 68 Ill., 499; Townsend v. R. R. Co., 56 N. Y., 295. Included In this class of cases will be found a number where the conductor upon one train had not given the right check to the passenger to enable him to be conveyed on a connecting train, although some of the decisions of this class hold that under such conditions the passenger is entitled to be carried when not himself in fault.

There is a class of cases in which some of the courts have held that the conductor had not the right to expel the passenger where the latter had purchased of and received from the ticket agent a ticket which upon its face appeared to confer the right of passage and all the privileges which the passenger desired and the agent assured him it guaranteed. R. R. Co. v. Winter, 143 U. S., 60; Murdock v. R. R. Co., 137 Mass., 293.

In so far as the law settled by the first of these cases is applicable to the case at bar, we have no alternative but to follow. We quote from the headnotes of that case as follows : “ Plaintiff bought a¡ ticket from Boston entitling him to a passage over the defendant’s road. At the time he informed the ticket agent of his wish to stop off at Olean station, and was then told by the agent that he would have to speak to the conductor about that. Between Bing-hamton and Olean the plaintiff informed the conductor that he wished to stop' over at Olean, and the conductor, instead of giving him a stopover ticket, punched his ticket and told him that was sufficient to give him the right -to stop over at Olean, and afterwards to use the punched ticket between Olean and Salamanca. He made the stop, and taking another train to Salamanca, presented the punched ticket, informing the conductor of what had taken place. The conductor refused to take it and demanded full fare. The payment of this being refused, the conductor stopped the train at the next station and ejected him from it, using such force as was necessary. Held:

i. That he, the plaintiff, was rightfully on the train at the time of his expulsion.
2. “That the conductor had no right to put him off for not paying his fare.
“3. That the company was liable for the act of the conductor.”

Much stress was laid by Justice Lamar, who delivered the opinion of the court, on the fact that the conductor who expelled Winter from the car, knew that the ticket had been punched by the conductor of the train that had next preceded him, and therefore had not been used between Olean and Salamanca, and that while there was a rule of the company that conductors were not to receive punched tickets, the evidence showed that they were in the constant habit of doing so. It appears, too, that the court held that the oral representations of the ticket agent formed part of the contract between the company and Winter, and that the latter having done all that he was directed by the agent to do to secure stopover privileges at Olean, and all that he was informed that it was necessary for him to do, and his ticket guaranteeing him a passage from Olean to Salamanca, he must be held to' be rightfully on the train and could not be lawfully expelled.

The important difference between the case of Winter and the one at bar consists in the fact that while Winter had with him a ticket which entitled him to a passage, Mrs. Baggett did not. The ticket which she presented to the conductor was no more evidence of her right to a passage on the car which she entered than would have been so much blank paper; neither was it any more effective as evidence that she had contracted with the agent at Knoxville for a ticket from thence to Washington.

The case of Bradshaw v. R. R. Co., 135 Mass., 407, in its essential facts is very much like this. The substantial facts as stated in the headnotes of that case are: “ If a corporation owning several lines of street cars has a practice of giving transfer checks to passengers who, after having ridden on one of its lines desire to ride on another line, such checks differing in language and color, according to the line on which they are to be used, and not being good on any other line except the one indicated, and a passenger who is familiar with this practice, receive, by the mistake of the conductor of a car upon which he has ridden, without reading it, a wrong transfer check, which, upon presentation to the conductor of a car on the second line, is declined on that ground, the passenger cannot, after having refused to pay his fare to the second conductor and been by him expelled from the car, maintain an action against the corporation for such expulsion.”

The opinion was delivered by C. Allen, J., in which he says: “ The conductor of a street railway car cannot reasonably be required to take the mere word of a passenger that he is entitled to be carried by reason of having paid a fare to the conductor of another car; or even to receive and decide on the verbal statements of others as to that fact. The conductor has other duties to perform; and it would often be impossible for him to ascertain and decide upon the right of the passenger, except in the usual simple and direct way. It is no great hardship upon the passenger to put upon him the duty of seeing to it in the first instance that he receive and present to the conductor the proper ticket or check; or if he fails to do this, to leave him to his remedy against the company for a breach of its contract.”

After discussing further the 'difficulties in the way of the conductor rendering proper decisions, Justice Allen says: “The practical result would be either that the railroad company would find itself obliged in common prudence to carry every passenger who should claim a right to ride in its ■ cars, and thus to submit to'frequent frauds, or else in order to avoid this wrong, to make such stringent rules as greatly to incommode the public and deprive them of their facilities of transfer from one'line to another which they now enjoy. It is a reasonable practice to require a passenger to pay his fare, or to show a ticket, a check or pass, and in view of the difficulties above alluded to, it would be unreasonable to hold that a passenger, without such evidence of his right to be carried, might forcibly retain his seat in a car upon his mere statement that he is entitled to a passage. . . The two supposed rights are in fact inconsistent with each other. If the passenger has an absolute right to be carried, the conductor can have no right to require the production of a ticket or the payment of fare. It is more reasonable to hold that for the time being the passenger must bear the burden which results from his failure to have a proper ticket. It follows that the plaintiff was where he had no right to be, after he refused to pay a fare, and that he might properly be ejected from the car. This decision is in accordance with the principle of the decisions in several other States, as shown by the case cited by the defendant, and no case has been brought to our attention holding the contrary.”

The case of Bradshaw v. R. R. Co. was decided September, 7, 1883. In June, 1884,.the same court decided the case of Murdock v. R. R. Co., supra, and the opinion was also delivered by C. Allen, J. The facts in this case were quite similar in the main features to the case of R. R. Co. v. Winter, supra. Indeed, Justice Lamar, in the latter case, quotes the former as sustaining his view of the law, as it undoubtedly does. Justice Allen in the Murdock case refers to his opinion in the Bradshaw case, maintaining its correctness, and discusses the principles applicable to each. It appears that in the Murdock case the ticket agent gave the passenger two tickets for a passage from Springfield to North Adams, one of them being from Springfield to Chester, and the other from Chester to North Adams, the latter having two ’holes punched therein. Upon inquiry by the passenger the ticket agent explained the effect of the two punched holes, and assured the former that the ticket was perfectly good for a passage from Chester to North Adams. Commenting on this, Justice Allen says: “There was nothing on their face to show the contrary to the plaintiff, and he took and paid for them on the strength of these explanations and assurances of the ticket seller. There was no mistake on the part of either as to where the plaintiff wished to go, or what terms were actually expressed upon the tickets, or what marks or punched holes they bore. The circumstances of there being two tickets and of the holes in one of them, naturally induced inquiry by the plaintiff, and he had no reason to distrust the correctness of the explanation which was given to him. The ticket seller assumed to know, and gave assurances which the plaintiff had a light to rely on, and which he did rely on. If when the conductor refused to accept the punched ticket it had appeared on an inspection of it that there had been a mistake, and that it did not on its face purport to be good for a passage over that part of the defendant’s road, or that the ticket seller had delivered to the plaintiff a good ticket upon some other railroad, or to some place which had already been passed when the mistake was discovered, and it was found that the plaintiff had through inadvertence accepted a ticket which on its face was plainly insufficient, then this case would have fallen within the doctrine of the recent decision in Bradshaw v. South R. R. Co., 135 Mass., 407; and it would have been the duty of the plaintiff to yield for the time being and pay his fare anew, or withdraw from the car. But in the present case such is not the position of the parties.

“As has been seen, the plaintiff was not only not guilty of any negligence in accepting his ticket but he examined it carefully, saw everything there was on it, and received explanation of the meaning of the punched holes, and assurances that the two tickets, in the condition in which they were, would be good for the trip. In such case, there being no mistake or inadvertence on his part, in the respects mentioned, and the tickets which were delivered being in all particulars such as were intended to be delivered, and there being nothing which could be gathered by inspection to show that they were insufficient, and no notice of their insufficiency being given to the plaintiff by anybody, or in any form, until he had already entered upon and practically accomplished his journey over the defendant’s road, he might insist upon being allowed to complete that journey.”

We are inclined to adopt the views of C. Allen, J., before quoted, as a satisfactory exposition of the law applicable to this case. In the light of the law thus understood, it necessarily follows that Mrs. Baggett, who went into the car of the appellee with a ticket which had been given to her, as we must presume, either by the mistake or fraudulent design of the ticket agent, which upon its face showed that it did not and could not furnish any right for her passage from Knoxville to Washington, acted wisely in retiring from the car when directed to do so by the conductor, she declining to again pay her fare. She would not under such circumstances be entitled to remain in the car. Her action might have been against the appellee for the negligence or fraudulent design of the ticket agent, if the above assumption as to. his conduct be true. If, indeed, it should be true that it was the mistake of Mrs. Baggett in carelessly taking the wrong ticket from the window, she would be without remedy, but must bear the consequences of her own careless act. Surely no one would claim that if the ticket came into her possession by her own carelessness, that she had any right to a passage by reason thereof.

We therefore hold that there was no error in the justice presiding at the trial of this cause in the court below directing the jury to return a verdict for the defendant; and that the judgment of the Supreme Court of the District of Columbia must be affirmed, with costs.  