
    The Cleveland, Columbus and Cincinnati Railroad Company v. Samuel H. Bartram.
    1. Where a person purchases a ticket, and takes his passage upon a railroad train, and after the train starts upon the road, he gives up his ticket to the conductor, he can not, at an intermediate station, by virtue of his subsisting contract, leave such train while in the reasonable performance of the contract, and claim a seat upon another train.
    2. A railroad company has the right to prescribe reasonable conditions for the admittance of way passengers upon its freight trains; and payment of fare to its office agents, or procuring a ticket prior to taking passage on such trains, is not an unreasonable condition.
    3. An offer to pay the fare to an employee on the train unauthorized to receive the same, is not an offer to the company, and in such case, does not entitle the person to a place on the freight train, as a passenger.
    4. It is error to instruct a jury, that in a proper case for exemplary damages, they should know that, in case the party recover less than one hundred dollars, he can not recover his cost in the action.
    Error to the district court of Crawford county.
    The original action was brought by Bartram against the Cleveland, Columbus and Cincinnati Railroad Company, to recover damages for an alleged trespass committed upon him by a conductor of a train of cars of the company, by ejecting him from the train when upon the same as a passenger.
    The bill of exceptions taken at the trial of the case, on the part of the company, shows the following state of facts :
    The plaintiff, Bartram, on the trial, gave evidence tending to show that, on the 22d day of January, 1855, at the city of Columbus, he got on a train of freight cars that had attached to it a passenger car for passengers, haying, at the office of the company, procured a ticket for his passage from that place to Gabon; that shortly after leaving the depot at Columbus, the conductor of the train received his ticket, but gave him no check; that, owing to something about the engine becoming impaired, as the engineer said, the train did not run well; that the train stopped at Oardington, an intervening town, to take on more freight, and the plaintiff being apprehensive that he would not reach Gabon in time for an outgoing train from that place, left that freight train, and got on another freight train of the company, which passed along at the time the train he first took passage upon was at Cardington ; that he inquired of the conductor of the train he left, how he could satisfy the conductor of the passing train that he had paid his fare, to which the conductor made no reply, except that he thought perhaps his train would get to Gabon in time to make the connection; that the plaintiff below thereupon, with the knowledge of that conductor, went to the other freight train, having also a like passenger car, and which had also stopped at Cardington ; and that shortly afterward, when it started, he went along in that car of the passing train; that shortly after this train started, the conductor called upon him for his ticket, and being told he had given it to the other conductor, asked him if he had a check, and being answered in the negative, told him that he could not ride upon that train without a ticket or a check from the other conductor; a.nd that, when they got to the next station, Gilead, he must get á ticket or a check from the other conductor, or he could not ride on that train; that the rules of the company required this; that a like conversation occurred at Gilead, when the train arrived, the conductor insisting upon his procuring a ticket or eheck before proceeding further upon his train ; that, after taking on his freight at Gilead, and coming on the train, the conductor asked the plaintiff if he had procured the ticket or check, and being answered in the negative, he told him that he must leave the ears; that plaintiff then presented the conductor a receipt, which he had written, for him to sign, for his fare, and offered to pay- him the same in money on condition of his signing the receipt, to which the conductor replied that he could not, that the rules of the company did not authorize him to receive money; that the plaintiff then offered to pay his fare in money from Cardington to Gabon, without a receipt; that the conductor again told him the rules of the company did not permit him to receive money; that the time was up, that plaintiff was detaining the train, and must get off; and there being two or three brakemen standing by, ready to remove him if he refused, the plaintiff left the train, and ran after the other train, which he had so before left, and that train slacking up for him, after running after it nearly half a mile, he got aboard, and arrived on that train at Gabon in season to make the connection with the outgoing train.
    The passenger car spoken of, attached to the freight trains respectively, was a “ caboose car,” so called, in which were box seats around the side of* the car. The ticket purchased by the plaintiff designated no particular train, nor the time of plaintiff’s passage.
    The plaintiff testified that he did not know of any regulation of the company requiring tickets to be procured before entering the cars, or that there was a ticket office at Gilead; nor did he know of the disabled condition of the engine when taking passage at Columbus.
    The company offered evidence tending to show that the “ caboose car ” was attached to the freight train for the convenience of the emyloyees of the company, and to accommodate persons who carried live stock on the trains. That persons who applied for passage on these trains to different points on the road, had always been permitted to ride on the trains. That on the 30th of ¡September, 1854, a regulation had been adopted by the company, and published, and directed to be posted up at all its stations along the road, that persons would not be allowed to ride on freight trains, without procuring tickets before entering the car; and that these notices were up, on the day the plaintiff took passage ; and proved by plaintiff, that, if so, he probably read them before that day, but did not recollect it.
    At the close of the testimony, and the arguments of counsel, the court charged the jury :
    That when a person paid to a railroad company the passage money for his conveyance upon its road, from one point to another, the ticket given by the agent of the company, was evidence that the fare had been paid; and that the person having thus paid, and procured a ticket, was authorized to ride upon any train of the company, running between the points designated, and for the conveyance of passengers; and that a passenger might get off a train upon which he may have started, at any intermediate point on the road, and take his passage on any other train of the company carrying passengers, and running to the same point, by virtue of having paid, and procured a ticket as stated, unless some established regulation of the company prohibits such change from one train to another; that the company had the right to restrict, by its regulations, the privilege of the passenger to the train he entered, but in the absence of such established rule, the contract of the company was, to carry the passenger on any train for the conveyance of passengers. The court further instructed the jury, that if they should find the case to be one for compensatory damages merely, they must look to the injury the plaintiff had sustained; if he had applied to the defendants for reparation, which had been refused, and had been driven to the necessity of bringing his action, the jury might look to this circumstance, and although the' jury could not estimate the amount of the expenses, attorneys’ fees, etc., and include them in their verdict, yet still, the jury might look to the circumstance, that the plaintiff had been subjected to the necessity of the action, in making their estimate of damages, to ascertain the good faith of the plaintiff in bringing his action, and the conduct of the defendant in relation to the subject matter.
    The court further instructed, the jury, that, it was proper they should know that unless the plaintiff recover damages to the amount of $100, he would be obliged to pay his own costs; and that in case they should find this a proper case for compensatory damages, it was proper they should not be forgetful of this rule as to costs.
    To all which the company, by counsel, excepted; and asked the court to charge the jury, that under the rules of the company so given in evidence, and the law of the case, the, plaintiff was not authorized to claim a seat upon the second train which he entered, by virtue of having paid the company for a ticket, so used and given up to the conductor upon the first train ; which the court refused. To which refusal the company, by counsel, excepted. Under the instruction of the court so given, the jury returned a verdict for the plaintiff, for the sum of $173 damages; upon which, the court entered judgment, and for cost of suit.
    Thereupon the railroad company filed a petition in error, in the supreme court, to reverse the judgment of the district court, and assign for error :
    1. That the court instructed the jury that when a passenger paid for his conveyance from one point to another on the road, and received his ticket, that after taking his seat and starting upon one train, he has the right, at any intermediate point, to leave that train, and claim a seat upon any other train of the company running to the point for which he has so paid his passage, unless specially restricted from so doing by an established rule or regulation of the company.
    2. That the court instructed the jury, that if they should find the case one for compensatory damages, they had the right, in making an estimate of the amount, to consider the fact of an application by plaintiff, and refusal by defendant, to pay, and the necessity thereby imposed upon plaintiff to bring his action, and that they might look at the consequent expense, attorney fees, etc., although they could not be estimated and included in their verdict, in making their estimate of the amount of damages to be returned in favor of the plaintiff.
    3. That it was proper for the jury in such case, to take into consideration the fact that unless the plaintiff should recover damages to the amount of one hundred dollars he would have to pay his own costs, and that finding the case one for compensatory damages, the jury should not be forgetful of this rule.
    4. That the court refused to instruct the jury as requested by defendant’s counsel.
    5. That the court rendered judgment in favor of the plaintiff, when the judgment should have been for the defendant.
    
      Jones & Garper, and Carhart, for plaintiff in error.
    
      Samuel H. Bartram, for himself.
   Sutliff, J.

The first exception taken in the assignment of errors,to the charge of the court to the jury, depends upon the contract between the parties. The terms of the contract are not particularly expressed. The ticket is a convenient symbol to represent the fact that the bearer has paid to the company the agreed price for his conveyance upon the road, to the place thereby designated. The relative duties and rights of the parties as to the time and manner of the performance of the contract is, for the most part, implied. Each party is entitled, in its execution, to require from the other a reasonable interpretation of the contract, and a correspondent compliance with the obligations arising under it, and respectively devolving upon the parties.

The same reasonable construction of the contract of carrier and passenger, applicable to carriers of passengers by ships or steamers, and hacks or stage coaches, is applicable to carriers and passengers upon railroads. Upon payment of his passage money, and obtaining a general receipt, or passenger ticket, from an office, for his conveyance to a designated place upon the carrier’s line,' the passenger in either case is entitled to present his receipt or ticket for his passage, at any reasonable time, on any outgoing regular means of public conveyance of the carrier, and demand the execution of the contract on his part.

It then becomes the duty of the carrier to receive his baggage, to check or otherwise dispose of it with due care in safe custody, and furnish the passenger with proper and reasonable accommodations, for his transit over the line to the point of destination. But after the passenger has made his election as to time and means of conveyance, and has called upon, the carrier for performance, and the parties have, as in this case, entered mutually upon the performance of the conveyance, neither party can arbitrarily and without cause impose new and unreasonable conditions upon the execution of the contract.

It is unnecessary in this case to determine what the right of a passenger might be after getting upon a train, and even having delivered his baggage, for good cause, to leave the train, and have his baggage redelivered, and again embark upon another or later train. But we are clearly of the opinion that after so having made his election, and the train has started upon the road, and the passenger has delivered his ticket to the conductor, as in this case, he has no longer the right of a re-election of trains, while that train is, in a reasonable manner, in the performance of the undertaking of the carrier. A contrary doctrine would necessarily impose upon the carrier additional duties, the removal of baggage as well as the passenger from one train to another, and the consequent additional attention on the part of the company; also an increased risk of accidents, and a hinderanee and delay not contemplated by a reasonable interpretation of their undertaking.

In this case, the passenger was admitted as a passenger upon a freight train, and the complaint against the company is, not only that he was denied the right to leave the train upon which he had embarked, and take passage upon another train, under his contract, but that he was ejected from the second train after he had offered to pay his passage on that train. This presents a distinct question from that already considered. Its answer depends upon the duty of railroad companies, as common carriers, to carry passengers upon freight trains. The rule applicable to the case, must be one of fairness, and reasonable in its application, both to the public and the company. The strict care for the safety of the passenger, as well as a regard for his comfort and convenience, incumbent upon railroad companies, forbids that they should be required to admit passengers generally upon their freight trains in the same manner that it is incumbent upon them to do upon passenger trains. The number must necessarily be limited, and the circumstances somewhat special under which they are admitted at all; and the conditions and rules must be reasonable, and adapted to the case.

This class of trains is designed for the discharge of the duties of the company as common carrier of freight. And these duties .of the company are also incumbent upon them, and the proper discharge of the duties of hardly less importance to the public than those devolving upon the company as carrier of persons. Both classes of duties are found to be best discharged to subserve public interest and convenience, as well as the interests of the company, by appropriating a distinct class of trains for the discharge of each class of these duties. It requires, to some extent, a different class of employees, as well as cars and other facilities, for each. The company may, for public or private convenience, if it see fit, to some extent, blend the discharge of the duties properly distinct, by taking freight, to a limited extent, upon passenger trains, or, by taking passengers, to a limited extent, upon freight trains. But this must necessarily be so done as not to interfere with the appropriate duties of such class of trains.

The evidence in this case tended to show that the company had adopted a rule to admit way passengers in the “ caboose car,” so called, attached for the convenience of freight trains, upon their paying their fare or procuring tickets before taking passage. We think this rule and regulation one which the company clearly had the right to make, and we perceive nothing in the case which would justify the conclusion, that the rule was an arbitrary and unreasonable one in its character. The limited number of passengers so admitted upon the freight train would not, probably, justify an equipment of a car upon the train with a passenger agent of those qualifications necessary to receive money and pay in change, to accommodate passengers, with convenience and safety for the passengers and company. Beside these, there are other objections, such as keeping the passenger receipts and accounts and those of the freight business apart and distinct, and other reasons, doubtless, which, from the nature and extent of its business, may readily be imagined, which may be weighty reasons with the company, to require such a rule.

But it is sufficient to say, that the bill of exceptions does not show that the railroad company had, in fact, any authorized agent for receiving fare; but it does appear that the person to whom the fare was offered expressly informed the plaintiff, not only that he was not authorized, but that he was prohibited, by the rules of the company, from receiving money for passenger fare, and from carrying unpaid passengers. There is, then, no evidence showing that the plaintiff below paid, or offered to pay, either to the company or its authorized! agent, his passage fare. And, as he had not paid the legally constituted agents of the company, nor procured, as required by the regulations of the company, a passenger ticket for that train, he could not legally claim admittance on the train as a passenger.

What has already been said, necessarily ■ disposes of the case. But inasmuch as the remaining exceptions to the charge of the court are presented by the record, they may properly be here noticed.

It is insisted that the court erred in charging the jury that they might, in determining the amount of damages, as compensatory damages, have respect to attorney fees, and other necessary expenses of the plaintiff, in prosecuting his action.

In the case of Roberts v. Mason, 10 Ohio St. Rep. 277, which was an action for assault and battery, this court held that in an action for a tort characterized by fraud, malice or insult, in their estimate of compensatory damages, it was not improper for the jury to take into consideration, and include reasonable attorney fees for the prosecution of his action by the party injured. But, in the application of this rule, there will be found quite a contrariety.of opinion expressed in different courts, and the subject is not free from embarrassment. It is said that the application of the rule is never allowable in actions brought on contract. But it is in actions of tort, that the contrariety of opinion pronounced upon the subject, is to be found. And as the jury have the right to assess exemplary damages in actions of tort, for fraudulent, malicious or insolent acts, the rule can have no practical application, except in actions of tort, for unlawful acts, done by mistake, or without evil design, or under circumstances excusing, but not justifying the act.

In treating upon this subject, after referring to decisions-of different states, and in the Supreme Court of the United States, Mr. Sedgwick says, — “It is not easy to say what should be the general rule on the subject, though it is evident that great incongruity has crept in. Nothing is more difficult, than to fix the precise limit to which society should go, in awarding reparation by means of its legal tribunals. Legal relief is, at best, extremely imperfect, and the charges of counsel are a very formidable item in those expenses which tend largely to reduce to the plaintiff the real benefit of his recovery; while, on the other hand, it may be said with great force, that the questions submitted to legal discussion, are often so vexed, that it is very doubtful whether the prevailing party is really entitled to complete reimbursement; and that if absolute indemnity were given, a great stimulus would be furnished to litigation. But at all events, the same rule should be applied to all cases that contain no elements of actual fraud, malice, or vexation; the plaintiff and defendant should be treated alike, and, whether the form of the action be ex contractu or ex delicto, the remuneration, as far as counsel fees is concerned, should be similar.” — Sedgwick on Damages, 101. And in the case of Pacific Ins. Co. v. Conard, 1 Bald. Rep. 145, Baldwin J., after referring to the various opinions upon the subject, expressed his disapprobation of the rule in a case of tort for compensatory damages, and refused to suffer attorney fees to be included; and his views seem to have been concurred in by the other members of the supreme court, on the final hearing of the case. 6 Peters 262.

On the other hand, in the case of Whipple v. Cumberland Manufacturing Co. 2 Story’s Rep. 661, in an action brought to recover damages for flowing back-water upon the plaintiff’s lands, Judge Story instructed the jury that although no malice was proved, “ that for the purpose of giving full indemnity, they might take into consideration such expenses of fees to counsel, and such other necessary expenses as they might think were properly and fairly incurred, in ascertaining by their verdict the amount of damage which the plaintiff was justly entitled to recover in the case.”

But in the case of Stimpson v. The Railroads, 1 Wallace R. 164, Grier, J., considers to some extent the conflicting opinions expressed in relation to the rule, and denies its correctness. He insists that the rule only existed in the civil law, and found no support in principles of the common law. And he accounts for the rule haying been recognized by Judge Story and other eminent judges, by accepting as authority decisions of courts of admiralty which proceed according to the principles of the civil law, and so award costs at the discretion of the judge, requiring the parties to pay costs to such extent as the judge may regard right and equitable, according to the circumstances attending each case.

And the argument is certainly one of much force in ac counting for the introduction to the rule which is perfectly consonant with this rule of the civil law in awarding costs as part of the remedy, if it be true that it can not find any support at common law as an item, of costs, for which the court could render judgment. Indeed, we know that at common law the parties were never entitled to judgment for costs, they were only entitled to judgment for their right or claim, for which the action was brought, or “ to go hence without day,” as the case might be. But at common law, if the plaintiff failed to maintain his alleged cause of action, he was amerced pro falso clamore. And in case the plaintiff sustained his cause of action, and obtained judgment, the defendant stood thereby convicted of the wrong or delinquency alleged against him, and condemned to make reparation for the wrong, or the restoration of the plaintiff’s right, the object of the action; but in such case the defendant was never, at common law, amerced; the defendant was said to be in misericordia for his unjust detention of the plaintiff’s right, and, therefore, was not punished with the expensa litis. And however unequal the rule may appear to have been between the parties litigant, in relation to the incidental costs of the litigation, it is said that no other rule prevailed at common law; and that it was to cure the apparent unreasonableness of this exemption from liability for costs on the part of the defendant, and to make the rule equal between the parties, that the statute of Gloucester (6 Ed. 1 Ch. 1) was passed. That statute (1278) provided, “ And whereas before-time damages were not taxed but to the value of the issues of the land, it is provided that the demandant may recover against the tenant the costs of his writ purchased, together with the damages above said (sec. 1), and this act shall hold place in all cases where the party is to recover damages. And every person from henceforth shall be compelled to render damages where the land is recovered against him upon his own intrusion or his own act.”

This, it has been said, “ was the original of costs de incremento” and that under this statute, “ when the damages were found by the jury, the judges held themselves obliged to tax the moderate fees of counsel and attorneys that attended the cause.” “And this was done in all real actions in which there were damages at common law, and also in all personal actions; for even in an action of debt, there are damages given for the unjust detention.” 6 Bac. Ab. 485.

But it must be confessed that there is a degree of uncertainty as to the fact of the statute referred to being the origin of the rule of assessing costs against defendants. For while it is said in Bacon’s Abridgement, and by other writers of equal authority, that there were no costs at common law, we are informed that, “ although costs were never given at common law eo nomine, yet in reality they were always included in the quantum of damages, in those actions where damages were given, the form of which entry may possibly have arisen from the above mentioned practice.” 3 Bla. 399, 2 Inst. 288.

And it is said by Lord Chief Baron Gilbert, that the justices in eyre were wont at their iters, before the statute of Gloucester, to assess the costs of the plaintiff where he prevailed, at a reasonable sum, exclusive of, and unblended with the damages which he recovered, and that this custom prevailed till the introduction of the modern justices of assize and nisiprius; at which time it became necessary that the costs should be taxed by the court above, and not by the judges on their circuits. Gilbert’s Hist. C. P. 266.

An additional argument against the proposition that the origin of the rule must have been the civil and not the common law, is the fact that even the statute of Gloucester did not govern the courts in their taxation of costs, as do our statutes authorizing costs. The amount of the costs was not regulated by the statute so as to prevent the court exercising a somewhat arbitrary discretion, the same as in the assessment of other fines. In speaking of final judgments, we are told that, in cases where the judgment is for the plaintiff, it was to the effect “that he recover the remedy he sued for;” and that it was also considered that the defendant be either amerced for his willful delay of justice, in not immediately obeying the king’s writ by rendering the plaintiff his due, or be taken up (capiatur) till he pays a fine to the king for the public misdemeanor, which is coupled with the private injury, in all cases of force, of falsehood in denying his own deed, or of unjustly claiming property in replevin, etc. “ But if judgment for the defendant, under like circumstances, the plaintiff may also, in like manner, be fined; but in most cases, he and his pledges are (nominally) adjudged to be amerced for his false claim. And formerly, where the plaintiff, a pauper, failed in his suit, and was nonsuited, Blackstone informs us that it was usual for the court to give him his election to be whipped, or pay the costs. 2 Bla. 399. But if it be true that, previous to the statute of Gloucester, costs, while not given eo nomine at common law, were included in the quantum of damages, it is difficult to perceive the want of any authority at common law in favor of the rule; and especially where, even under the statute, such expenses as counsel and attorney fees were, in England, regarded as items of cost to be assessed against the delinquent party.

But the subject is one by no means free from doubt. While, as we have seen, the rule has been clearly recognized in some states and favored by learned jurists, it is rejected by others of equal respectability.

But it is unnecessary to here express an opinion as to the propriety of extending the rule to any case beyond a trespass of the character to which we have allowed its application, one in which exemplary damages might have been allowed.

We think, however, the district court undoubtedly erred in their instruction to the jury, that it was necessary the plain tiff should recover the amount of one hundred dollars, in order to entitle him to recover costs. The judgment to be rendered was a duty belonging exclusively to the court, and with the discharge of which the jury had no concern. • Nor should their true finding of the issues submitted to them, and the true amount of damages, be at all disturbed or qualified by such a consideration. Indeed, if they had come to the knowledge of such a fact upon the trial, it would have been very proper for the court to have cautioned them against its influence upon their verdict.

For the errors indicated in the instructions of the court to the jury, the judgment of the district court must be reversed, and the petition in the original action dismissed, at the cost of the defendant in error.

Judgment accordingly.

Scott, C.J„ and Puck, G-holson and Brinkerhoee, JJ., concurred.  