
    J. F. England v. International & Great Northern Railroad Company.
    Decided April 18, 1903.
    Passenger—Excursion Ticket—Boarding Wrong Train.
    Evidence considered and held to justify an instruction to find for defendant, the proof showing that plaintiff, holding a reduced rate excursion ticket, not good on a certain train, knew that it did not entitle him to ride on such train, though told by an agent he might get on if it stopped; he boarded such train taking the chance that it would be accepted, and had no ground for recovery for being ejected without undue force.
    Appeal from the District Court of Travis. Tried below before Hon. R. L. Penn.
    England sued the railroad company and appealed from a judgment for defendant.
    
      John Dowell, for appellant.
    
      S. R. Fisher and J. H. Tallichet (N. A. Steelman, of counsel), for appellee. '
   KEY, Associate Justice.

—Appellant brought this suit against appellee to recover damages for the alleged wrongful ejection of appellant from one of appellee’s passenger trains. After hearing the testimony, the court directed a verdict for the defendant, and the plaintiff has appealed. The plaintiff introduced the'following testimony:

J. F. England, the plaintiff, testified as follows: “My name is J. F. England, and I am plaintiff in this case. The International & Great Horthern Railroad runs between Austin and San Antonio, passing through Kyle. I was in Kyle on August 3, 1902, and I got on the north-bound train there that night. I was coming to Austin, and my father and I went to the depot; Mr. Sledge the agent was there, and I told him I was going home that night if he could stop the train, and he said, ‘John, I can’t stop the,train, but I think there’s some boys going to get off it, and you can get on it if it stops.’ I said, ‘Well, that’s all right.’ After that I was lying down on the gallery with my coat under my head and my father and I were talking, and Linden Sledge, who was the porter and night agent came out and said, ‘John, I am sorry I can’t stop the train for you, but if it stops you can get on it. I think it will stop, and if it does stop it’s all right.’ About that time we saw the southbound train coming over the hill from Austin, and Sledge said, ‘Well, there is No. 1; it will stop and you can get on the other train.’ No. 1 pulled in on the main track, and the ‘High Flyer,’ the train I got on, pulled in on the siding, and Linden Sledge said, ‘You need not go down there; you can get on right here; it’s going to stop right in front óf the depot,’ and he said ‘You are sure lucky, John, ain’t you?’ And I said, ‘Yes, I am lucky, and I am glad for it to stop.’ Well, I got on the train and went about three-quarters of a mile and the conductor, Jim Seamonds, came through; he took my ticket, looked at it and said, ‘Why, hell! I can’t carry you through on this ticket.’ I said, ‘Well, the agent told me to get on.’ He said, ‘Damn the' agent; he ain’t running ^this train—I’m running this train.’ I said, ‘That don’t make any difference, I got on the train in good faith; I wouldn’t have got on unless he told me to.’ He said, ‘Well, damn the agent! he ain’t running the train, I’m running it, and you get off;’ and he sorter taken me by the arm and I wouldn’t let him push me off, and I got off, and he waived his lantern and the train went on, and I footed it back to Kyle. I don’t know exactly how far I rode on the train, but I think between one-half and three quarters of a mile, and I had to walk that distance back. This occurred about 10 o’clock or a little after 10 at night. The conductor did not put me off at any station; he put me off between stations. The next station north of Kyle is Buda, and the next one is Manchaca, and then Austin.

“I could not say that the ticket handed me is the one I had that night, as the tickets all look so much alike, and I never read a ticket from start to finish, but the ticket I had was something like this one; it was an excursion ticket to Hew Braunfels and back to Austin. Kyle is a station between Austin and Hew Braunfels.

“As to exactly what occurred on the train, I was sitting in the car and the conductor came in and I handed him my ticket; he said: ‘Why, hell! I can’t carry you on that ticket—you’re on the wrong train,’ and he reached up for the bell cord and he said, ‘Get off! get off! what do you mean getting on here ?’ I said, ‘The agent told me to get on; I got on here to go to Austin; I don’t want to get off here; this isn’t Austin.’ He said: ‘Well, never mind, I haven’t got time to fool with you; the agent ain’t running this train.’ I didn’t want to raise any eain or rough house with him and just stepped off, and the whole car was sitting there watching me, too. I told the conductor that the agent told me to get on the train and the ticket was good, and he said ‘Damn the agent! he ain’t running this train; I’m running it, and you get off.’ and I got off. When I got off the train I pulled my coat off and put it on my shoulder and hit the middle of the track back to Kyle. I don’t know exactly what time I got back there, but it took me at least ten or fifteen or twentj'' minutes, perhaps longer, to walk back. I went to the Kyle hotel and sat down to wait for the next train. I was coming to Austin, which is my home. I had to wait about an hour and ten or fifteen minutes for the next train, and came on to Austin on it.

“The conductor’s conduct towards me made me feel very bad; I didn’t feel good at all; no one would feel good getting put off a train out on the bald prairie in the dark and the people in the car sitting there looking at him. The train I got on first was right in front of the depot when I got on it, and the porter and conductor were both off the train at the time. This was on Sunday, August 3.

“I earned from $85 to $100 a month; I am a barber, and the time of my employment is from Monday morning at 7 o’clock until 11 o’clock on Saturday night.

“Before getting on the train, I showed Mr. Sledge my ticket, and he said, ‘That is all right, John, if it stops.’ 1 applied to him for proper and correct information, and I would not have gotten on that train if I had thought I was going to be put off out in the prairie. That is a settled fact. My father, Miss Rosa Kyle and the agent were present when the agent told me to get on that train. Mr. Sledge was the night agent and operator; he meets all trains that come through there after 6 o’clock in the evening. I thought whatever Linden Sledge-said was all right; he had been working there a good while. There was no other agent there at that time. I have known Sledge always; we were raised together, and I thought whatever he said to do .was all right; that is the reason I showed him the ticket and asked him about it. He just looked at it and said, ‘Well, if the train stops, it’s all right, John, you get on it; but if it don’t stop of course you can’t.’

Cross-examination: “When I first went to Linden Sledge I asked him to flag the train for me. I said, ‘Linden, is the train going to stop?’ He said,‘Ho, I don’t think it will, John.’ I then said: ‘Can’t you flag it?’ He said ‘Ho, I can’t flag it any moré for that ticket, John.’ He had flagged it the Sunday night before for me. Mr. Sledge did not read a telegram to me; he came outside and had a telegram, but it was too dark to read it, and I said, ‘I will take your word.! He said the telegram was that he could not flag the train any more for those excursion tickets. Mr. Sledge did not tell me distinctly that excursion tickets were not good on that train, because he said, ‘I expect some of the boys will be in on this train from Hew Braunfels; they went over there this evening and I expect it will stop.’ I don’t know that the ticket I had said ‘Hot good on train Ho. 8/ and it is not a fact that the conductor pointed it out to me before he put me off the train; he just held it up this way and looked at it, and remarked to me, ‘Hell! this ticket isn’t good on this train. What are you doing onr this train ?’ This ticket contains these -words: ‘Hot good on train Ho. 8. International & Great Horthern Railroad. Excursion ticket, returning coupon. Ho stop-over will be allowed on this ticket. One first class passage Hew Braunfels, Texas, to Austin, Texas. Good only until and including train leaving August 3, 1902;’ but I came up on the same train the Sunday night before that. When I was put off the train I did not measure the distance nor count the number of telegraph poles between the places, as I was too mad. I was raised there, and ought to know how far it is from where I was put off back to the station; I have gone over that ground maybe 200 times. Where I was put off the train was between one-half and three-fourths of a mile this side of the depot. I can not state that the place where I was put off was not about six feet from the north end of a little bridge, about 400 steps this side of the depot at Kyle.

“When the train stopped, Linden Sledge said, ‘John, you are,lucky; you’re going to get home on the first train/ and hollered ‘Good-bye.’ As previously stated, he said that if the train stopped I could get on it and go home on it, but he said he could not flag it. He said: ‘I expect some of the boys will be in from Hew Braunfels, and I expect they will stop/ and I showed him my ticket. My father and I were on the gallery and Miss Bosa Kyle was on the inside of the office. I was lying down with my coat under my head, and when Sledge had the telegram, I said, You need not show me that telegram, I’ll take your word for it.’ Regarding the telegram he said, ‘I got a telegram not to flag this train for any excursion tickets, but there is some boys coming in from Hew Braunfels and the train will stop, I expect, and if it does you can go on to Austin on this train/ and we changed the subject and were talking about different things, and he looked up and said, ‘Yonder comes Ho. 1, I expect these trains will meet here/ and it pulled in on the main track above the depot and the other train came in on the side track right in front of the depot and stopped. Sledge said: ‘Well, John, you are lucky sure.’ I said ‘Yes/ and he waived his hand and said good-bye. Sledge had my ticket in his hand and told me to get on; it was all right. If he hadn’t told me to get on the train, I certainly would not have got on it.

“I bought my ticket at Austin, right down here at the depot. I gave six bits for it. It was a ticket to Hew Braunfels and return, but I did not go to Hew Braunfels; I got off at Kyle. I do not know the regular fare from Austin to Hew Braunfels. Kyle is on this side of Hew Braunfels, and the regular fare from Austin to Kyle is 65 cents, I believe, and the round trip would be double that,- or $1.30. I got my ticket to Hew Braunfels and return at a less rate than the straight fare from here to Kjde and return would have been. When the conductor approached me, I was seated in the car and the train was in motion, having left the depot.”

J. B. England for the plaintiff, testified as follows: “My name is James R. England. I am the father of the plaintiff. I reside in Kyle, Texas, and am night watchman, employed by the people of Kyle. I was at the depot in Kyle on the night of August 3 last: My son and Linden Sledge were also there. Mr. Sledge is porter there at the depot and sells tickets; he was representing the railway company there that night. Miss Bosa Kyle was also there that night. I heard a conversation between my son, J. E. England, and Mr. Sledge regarding my son’s getting on the train. Mr. Sledge said, ‘This first train that is due here, Ho. 8, I can’t flag that train, because it won’t stop here; I have orders not to flag that train, special orders this morning/ and he went and showed John his authority; he had orders not to flag that train for the ticket he had, and Sledge told him he would have to wait for Ho. 6, which was the last train due coming north, and John told him ‘All right;’ but while we were waiting, Ho. 1 from the north ran in about the time that Ho. 8 from the south ran in. Ho. 8 went in on the switch, and Mr. Sledge said to my son, ‘You are lucky; Ho. 8 is going to stop/ and told him to go down to the switch, but the train stopped a little farther up, and he told him to go up farther. John went on up and boarded the train, and the next thing I knew I went to the hotel in making my rounds and my son was there, and he said they put him off the train. During the conversation before the arrival of the train, Sledge told my son he could get on the train if it stopped, but he said he had a telegram not to stop the train, and showed him the telegram. I could not say whether my son showed his ticket to Mr. Sledge or not. I was not present all the time they talked. It was talked about my son’s having an excursion ticket, but I didn’t see it. When the train came up and stopped, Mr. Sledge said, 'You are lucky, John,’ and told him to go down to the switch and get on it, but it went farther up and Sledge told him to go on and get on it up there; the train came up very near to the depot and stopped, and Sledge told him to get on. There was no other person than Mr. Sledge representing the railroad company that night in selling, tickets and directing passengers. The time I saw my son at the hotel was somewheres inside of an hour after he got on that train at the depot. I don’t know how he came back. He was sitting there at the hotel when I found him.”

Cross-examination: ''Mr. Johnson is the regular station agent at Kyle. Mr. Sledge is operator and assistant agent. I said that Mr. Sledge told my son that he had a telegram not to flag Ho. 8, and those excursion tickets were not good on Ho. 8, and I understood that my son had an excursion ticket, but did not see it. Mr. Sledge said it was not good on Ho. 8, and Ho. 8 was the first train in; it is what is called the 'Santa Fe Flyer.’ The second train, the one my son finally went off on, is called Ho. 6, local; it came through about an hour after Ho. 8. When Ho. 8 came in Mr. Sledge remarked, "You are lucky, John,’ but before that he had showed John a telegram that he had no authority to stop the train, and that that ticket was not good on that train. He just said he was lucky and told him to go down to the switch, and then it stopped and he told him to go up there. The train was not moving when John got on it.

Redirect examination: “My son had no other business there with that agent than to get on the train and come to Austin. When Sledge told John to go up there and get on the train, John went and got on it. In the conversation before the train arrived, Mr. Sledge said it might be that the train might stop to let some of the boys from Hew Braunfels get off the train. Mr. Sledge knew that John had an excursion ticket.”

Among other matters, the defendant put in evidence a fac simile of the ticket on which the plaintiff attempted to ride, which contained a stipulation stating that it was not good on train Ho. 8.

In our opinion the court ruled correctly in instructing a verdict for the defendant. A carrier has the right to limit the use of an excursion ticket sold at a reduced rate, to any particular train or trains. Abram v. Railway Co., 83 Texas, 61, and the cases there cited.

In the case at bar, the testimony submitted by the plaintiff shows that while he had not read the ticket, he was apprised of the fact that it did not entitle him to travel on train No. 8; and also of the fact that the train in question and upon which he attempted to travel was train No. 8. Such being the case, we think he took the chances of not being permitted to travel on that train; and as his ejection was not accompanied by unnecessary force, he had no cause of action, and was not entitled" to recover. Railway Co. v. Powell, 35 S. W. Rep., 841, 13 Texas Civ. App., 212; Railway Co. v. Demilley, 41 S. W. Rep., 147.

No error has been shown, and the judgment is affirmed.

Affirmed.  