
    Allen v. Lake Shore & Michigan Southern Railway Company.
    
      Right of sheriff, in discharge of duty, to ride on freight trains — Not regularly scheduled to stop at station— Word “regularly” surplusage — Section SSI5a, Revised Statutes.
    
    1. To give a sheriff the right to ride on freight trains in the performance of his official duties 11 between stations where such trains stop,” as provided in section 3375a, Revised Statutes, it is not ndcessary that such trains should regularly stop at such station, or be scheduled to stop there; it is sufficient if they are in fact stopping there at the time the sheriff gets aboard.
    2. The right of a sheriff to ride upon a freight train, is not confined to cases in which a prisoner is taken upon such train; but the right exists whenever the sheriff is in the performance of any official duty, and complies in other respects with the statute.
    3. A sheriff having the right under the statute to ride upon a freight train, was ejected therefrom at Jefferson, and brought an action thereafter against the railway company for damages, and in his petition averred that the 1 ‘train stopped regularly as well as on the said day, both at Jefferson and Ashtabula :” Held, That the word “regularly” as applied to Jefferson, was surplusage, and that it was sufficient to prove that the train had in fact stopped at Jefferson when the sheriff got aboard, and that it stopped regularly at Ashtabula.
    (Decided October 26, 1897.)
    Error to the Circuit Court of Ashtabula county.
    James E. Allen, plaintiff in error, was, on the 14th day of January, 1893, sheriff of Ashtabula county, and had two writs to serve on parties at Conneaut in said county, and the most direct and convenient way to reach his destination was to go from Jefferson, the county seat, to Ashtabula, and thence to Conneaut on the L. S. & M. S. Railway. He went to the station at Jefferson, and there found a through freight train which had stopped at the station, and remained there about thirty minutes, when it started up and ran to Ashtabula, which was its next regular stopping place. This through freight was not scheduled to stop at Jefferson, but did in fact stop there that day for about half an hour.
    While this through freight train was so stopping on that day at the station at Jefferson, Mr. Allen, the sheriff, with his two writs for service, got on the caboose of the train, and informed the conductor, that he was the sheriff of the county, and had the two writs in his possession for service, and that he desired to ride on the train in the caboose from Jefferson to Ashtabula, and in payment of his fare, offered to the conductor a first-class ticket which he had in his possession, and also offered to pay his fare in money; but the conductor refused both, and refused to allow the sheriff to ride on that train, and put him off, and the sheriff was compelled to reach Conneaut by means of a different conveyance. The conductor was informed and knew that Mr. Allen was the sheriff of the county, and had the two writs for service, and he refused to allow the sheriff to ride on the through freight for the reason that it was not scheduled to stop at Jefferson, and Jefferson was not a regular stopping place for that train.
    Mr. Allen thereupon brought his action against the railway company for damages, and alleged in his petition that “said train stopped regularly, as well as on said day, both at Jefferson and Ashtabula.”
    The allegation of the petition as to stopping regularly at Jefferson was denied, and upon the trial it fully appeared that the train was a through freight, which did not regularly stop at Jefferson, but did in fact on that day stop there for fully half an hour, and was so stopping when the sheriff got into the caboose.
    Upon trial in the court of common pleas, Mr. Allen recovered a judgment, against the railway company for the sum of five hundred dollars.
    A motion was made for a new trial, which was overruled. Upon petition in error the circuit court reversed the judgment, on the ground that the court of common pleas had erred in its construction of the statute, and in its charge to the jury on that subject. Thereupon Mr. Allen filed his petition in error in this court, seeking to reverse the judgment of the circuit court, and praying for affirmance of the judgment of the court of common pleas.
    
      Charles Lawyer, Jr., and Hoyt & Munsell, for plaintiff in error.
    
      Theodore Hall, for defendant in error.
   Burket, C. J.

The journal entry of the circuit court shows that the court found error in the record, to the prejudice of the plaintiff in error (the railway company), in this to-wit: “The court

erred in its charg’e to the jury; the court erred in its construction of the statute under consideration. ”

The statute in question is as follows:

“Section 3375a. Physicians in the discharge of their duty; and sheriffs and deputy sheriffs, in the performance of their official duties, shall be permitted to ride, at their own risk, and take a prisoner or prisoners, upon freight trains, between stations where such trains stop, paying therefor a regular passenger fare.”

The charge of the court as to the construction of the statute held to be erroneous by the circuit court, is as follows:

“The act of the legislature, which we have copied into these instructions, permits a sheriff, while engaged in the discharge of his official duties,- to ride upon freight trains between stations where such freight trains stop. We hold and instruct you, that if said freight train had stopped at Jefferson, and was standing- upon the track, before the plaintiff entered the caboose, that in that event, while the plaintiff’s claim, in this case, may not fall within the exact letter of the statute, yet we hold that it comes within the spirit of the statute; although you should find that Jefferson was not a regular stopping place for that train.

“On the other hand, in this case, we instruct you, that if you find that it has been proven, that said freight train had stopped at Jefferson station, and was then standing there upon the track, and you find that it has been proven, that the plaintiff entered said caboose car, while it was so standing upon said track, and that he was then engaged in the performance of his official duties, which required him. to pass over the defendant’s line of road, from Jefferson to Ashtabula, on his way to Conneaut, in said county, to make service upon parties at Conneaut, of a summons, or other papers, which he then had with him for that purpose; that he then made known to the conductor, that he was such sheriff, and was then engaged in the discharge of his official duties, which required him to pass over said road, from Jefferson to Ashtabula; then we say to you that he had the right, as such sheriff, in the discharge of the duties of his office, to enter said car, upon the payment of the regular fare from Jefferson to Ashtabula, and to require the defendant to carry him, from Jefferson to Ashtabula, upon said train, and if you find that it has been so proven, that he thus informed the conductor, and the conductor, after he had been so informed by the plaintiff, refused to carry him to Ashtabula, and allow him to ride upon said train, but then and there ordered the plaintiff to leave said car, and the plaintiff in pursuance of said order of the conductor, did leave said car, to avoid being forcibly expelled therefrom, then we say to you, you would be authorized to return a verdict in favor of the plaintiff.”

The common pleas also charged the jury, over the objection of the railway company, that sheriffs and their deputies, while in the performance of their official duties, have a right to ride upon freight, trains, at their own risk, whether they have a prisoner with them or not. The circuit court held this part of the charge to be correct, and this court concurs in that holding.". The right to ride upon such trains is given to sheriffs and their deputies, while in the performance of their official duties,, whether accompanied by a prisoner or not.

The charge of the common pleas, and the reversal by the circuit court, raises, the question, whether the right of sheriffs and their deputies to ride on freight trains under the statute, extends only to riding on such trains between stations at which the trains regularly stop, as held by the circuit court, or whether the right extends to trains which have in fact stopped at the station and are standing there when the sheriff or his deputies get aboard, even though such trains do not regularly stop at such station, as charged by the common pleas.

We think the common pleas was right, and the circuit court wrong, in the construction of the statute upon this question.

The words of the statute are, “between stations where such trains stop. ” This does not say, and does not mean, “between stations where such trains regularly stop, or are scheduled to stop,” as claimed by the railway company, and held by the circuit court. To so construe the statute would be to add additional words, and an additional meaning to the statute by construction.

This can not be done. The words, 4 ‘where such trains stop,” mean where they in fact stop; at least such is the meaning when applied to the stop of the train at the station where a sheriff or his deputies get aboard. When the sheriff got to the station he found a freight train there, and found that it had stopped, and that it would stop at Ashtabula where he desired to go. With this information’, being in the performance of his official duties, he had the statutory right to go upon the train, and it was the duty of the railway company to carry him upon such train at his own risk, by his paying the usual fare, either in money or by proper ticket. The fact that the freight train had on that day stopped, and was then standing at the station, was sufficient to authorize the sheriff, in the performance of his official duties, to go aboard the train, and he need not inquire or concern himself as to whether said train regularly stopped at that station, or was scheduled to stop there.

True, the sheriff in his petition avers that “said train stopped regularly, as well as on said day, "both at Jefferson and Ashtabula;” but this averment could not broaden or change the provisions of the statute. The construction of a statute can not be changed or affected by an averment in a pleading. State ex rel v. Archibald, 52 Ohio St., 1.

The averment in the petition, to the effect that the train regidarh/ stopped at the station, was surplusage, because it was sufficient to aver and prove that it stopped there on the day in question.

A petition which contains all the facts necessary to bring the plaintiff within the rights granted by statute, is good, even though it avers other, but not contradictory, facts, not necessary to the right of recovery. In such cases the additional facts will be regarded as surplusage, and need not be established on the trial.

It follows that the judgment of the circuit court should be reversed, and that of the common pleas affirmed.

Judgment accordingly.  