
    Elliot v. New York Cent. & H. R. R. Co.
    
      (Supreme Court, General Term, Fifth Department.
    
    June 22, 1889.)
    Carriers—Ejection op Passengers.
    Plaintiff and his father held two tickets, purchased at a reduced price, good for a continuous passage on train 59 from W. to R. Plaintiff’s father presented the tickets to the door-keeper at W., and asked what train they called for. The door-keepcr, pointing to a train, said, “That is the train, ” and ordered him to pass on. The father then went back for his overcoat and plaintiff, and when he returned he again presented the tickets. He was directed to the same train as before, which plaintiff and his father then entered. After the train had started the conductor looked at the tickets; told plaintiff and his father that they were not on train 59; that they would have to get off at H., the next station, and wait for train 59. When train 59 reached H., plaintiff and Ms father, who were asleep in the waiting-room, were awakened by the station agent, and entered the train, but they were ejected by the conductor. Held, that plaintiff was entitled to recover for the ejection.
    
    Appeal from circuit court, Niagara county.
    Action by Albert W. Elliot, by his guardian ad litem, against the New York Central & Hudson River Railroad Company. Judgment was entered on a verdict for plaintiff, and a motion for a new trial was denied, and defendant appeals.
    Argued before Barker, P. J., and Dwight and Macoiiber, JJ.
    
      Jamen F. Gluek, for appellant. E. M. & F. if. Anhley, for respondent.
    
      
       On the rights of passengers on railway trains without proper tickets, and their righ t to recover damages for being ejected, see Wightman v. Railway Co., (Wis.) 40 N. W. Rep. 689, and note; Railroad Co. v. Holdridge, (Ind.) 20 N. E. Rep. 837, and note.
    
   Macomber, J.

This action was brought to recover damages sustáined by the plaintiff, by reason of being wrongfully ejected from a railway car while traveling as a passenger from New York to Bochester on a special ticket on the West Shore Bailroad, of which the defendant is the lessee. Mr. Elliot, the plaintiff’s father, on the 14th day of January, 1887, at about 3 o’clock in the afternoon, purchased two tickets at the ticket-office of the West Shore Company, for Bochester, and in the evening proceeded by ferry-boat to Weehawken, N. J., which is the eastern terminus of the railway tracks. The tickets were purchased at a reduced price, and were limited continuous trip tickets, good for train 59, leaving New York, January 15th. In the evening of January 14th, at Weehawken, Mr. Elliot presented these tickets to the door-keeper, and asked the latter what train these tickets called for. Pointing to a train, the door-keeper said, “That is the train,” and ordered him to pass along. Mr. Elliot went back to get his son, and his overcoat, and when he returned he was ordered again to show his tickets, which was accordingly •done, and he was again directed to the train, as before. The train indicated was standing near by, and was boarded by the plaintiff and his father. It proved, however, not to be train 59. After the train passed through what is known as the “Tunnel,” the conductor called for tickets, and was handed these two tickets of the plaintiff and his father. The conductor asked Mr. Elliot how he got onto the train, and was told that he came on along with the rest of the passengers. He was asked if he showed the tickets to the doorkeeper, and he said he did, not only once, but twice. Mr. Elliot and his son were then ordered by the conductor to get off, for the reason that they could not be carried on that train. They were allowed to ride to Haverstraw, the nearest station, and, being ordered off the train, they alighted. Mr. Elliot was informed before alighting that the tickets called for the first train coming behind the one upon which he was then riding. It then being early in the day of January 15th, train 59 came along, and stopped at Haverstraw, when Mr. Elliot and his son, after being w-akened from a sleep in the ladies’ room, boarded it. A moment after the train started the conductor of this train appeared, and called for tickets, and these tickets were shown him, and he asked, “Where did you get these tickets?” He was informed that they were bought in New York. The conductor said, “At reduced rates, I suppose?” The answer was: “That makes no difference to you.” Mr. Elliot was then informed that he and his son must pay their fare or get off.

It is argued by the appellant’s counsel that Mr. Elliot must be presumed to have known that the tickets which he purchased were for train No. 59, and for the 15th day of January, and he cites the case of Elmore v. Sands, 54 N. Y. 512, as authority therefor. It is not incumbent upon us to decide whether this proposition is correct or not. The case differs in many essentials from the one cited, in that the number of the train and the day of its starting in the case at bar were indicated by the punch holes, rather than by plain writing, which any person could understand. The doorman, Gifford, testifies: “But a man that does not know what the numbers were originally on the ticket before the ticket agent punched it would not know from the ticket what train liis ticket was for, unless somebody told him, and I was put at the door, and the doorman was put at the door, for the purpose of giving that information, among other things.” It is not necessary for us to decide this question, for the reason that when the passengers presented themselves at Weehawken, and tendered these tickets to the door-keeper, and were pointed to this train, they were justified in getting aboard and entering upon their journey. No deceit was practiced upon the door-keeper. On the contrary, it appears that Mr. Elliot and his son in good faith took their places in the car, believing that the tickets” were good for their passage.

This action is not specifically for any damages for putting the plaintiff off the’train at Haverstraw. If the ease of Elmore v. Sands, supra, is applicable to these facts the conductor of that train would have been justified in leaving the passengers at the first station from which they could board the train for which their tickets were designed. At all events, the conductor attempted to correct the errors which had been committed, and instructed the persons whom he thus put off to take the train at that point, which, as above stated, they accordingly did. At last they were on board train 59, which their tickets called for. They liad escaped one horn of the dilemma which the conditions of the ticket presented, but were impaled upon the other; for the tickets had the further condition that such passage on train 59 should begin at the city of New York, meaning undoubtedly Weehawken. Therefore the conductor of train 59 refused to let these passengers ride on the train for which the tickets were purchased, because they did not get on at New York .or Weehawken, and accordingly dropped them off at Stony Point, three miles from Haverstraw; not, however, without some indignant resistance on the part of the old gentleman. When the principal managers of the railway ascertained the true situation of affairs, reparation was attempted to be made, and transportation free of further charges was given to Mr. Elliot and his boy to their destination. The jury, undoubtedly, have taken this attempted reparation into the account, for they gave only $50 damages, which, under the circumstances, is not excessive. This case involves a principle of some importance. When train 59 came along at Haverstraw, the embarrassing predicament of these passengers had been brought about by the mutual mistake of Mr. Elliot and of the door-keeper at Weehawken. What was the duty of tlie railroad companj', under the circumstances? The station agents awakened the plaintiff and his father, and put them aboard train 59 at that point. The conductor was bound by that act, inasmuch as they were upon the proper train, or at least he was bound at his peril to ascertain the facts of the case before ejecting them, because they did not board the train at Weehawken. We are not prepared to say that the condition of this ticket that the journey should begin at New York or Weehawken is unreasonable, but we do hold that the provision should have a reasonable application. Inasmuch, therefore, as the plaintiff and his father found themselves at Haverstraw through the act, in part, of the defendant’s agents, the company was bound to receive them on board the train which their tickets called for, and to carry them to their destination. Having failed to do so, and having ejected them from the car, a right of action accrued. The judgment should be affirmed, with costs. All concur.  