
    The Lake Shore and Michigan Southern Railroad Company v. Orndorff.
    
      Damages — Liability for, by railroad — Ejectment from train for refusal to pay fare — Rights of passenger on ticket — Corporation law.
    
    1. When a person having in charge a child of sufficient age to require payment of fare, takes passage on a railroad, such person becomes liable for the payment of the child’s fare, and upon refusal to pay, both may be ejected from the train at the next station. '
    2. When such person has paid fare, or purchased a ticket which is taken up by the conductor, such conductor must, before ejecting such person and child, return or offer to return to such person, the unused value of such ticket or fare over and above the fares of both for the distance already traveled.
    3. If the ticket is such that a stop-over may be had thereon, the conductor may tender a stop-over check instead of money, but to retain the ticket and expel the parties from the train, renders the company liable in damages.
    (Decided January 26, 1897.)
    Error to the Circuit Court of Fulton county.
    In the month of September, 1891, Sarah B. Orndorff, defendant in error, purchased a ticket for. herself from Kendaliville', in the state of Indiana, to Wauseon, in the state of Ohio, and got aboard one of the regular passenger trains of the plaintiff in error, and took with her into the ear her little boy aged nine years. The conductor came around and took up her ticket and punched it, and demanded half fare for the boy, which she refused to pay. He informed ‘ her that she must pay half fare for the boy, or both get off at the next station, Corunna, six miles east. Upon arriving at Corunna, she still refused to pay, and also refused to get off, and he thereupon removed her and the boy as' gently as possible, using no unnecessary force, she at the same time demanding the return of her ticket, and he ref using to return the same, as it was already cancelled. After she and the boy had been put out onto the platform of the station, she offered to pay the boy’s fare, and they again got upon the train and she paid his fare, and they rode in safety to Wauseon where they left the train and went to their home. The ticket was what is known as a stop-over ticket, entitling her to a stop-over check at any station.
    She afterwards commenced an action against the railroad company for damages for unlawfully ejecting her from the train, resulting in personal injury, and shocking and wounding' her feelings.
    Upon trial in the common pleas court she recovered a judgment for seven hundred dollars, which was reduced to four hundred dollars by the circuit court, and then affirmed.
    Upon the trial the counsel for the railroad company requested the court to charge the jury as follows:
    1. “The plaintiff, Sarah B. Orndorff, being a passenger upon defendant’s train, was responsible for the fare of a child under her charge and control, and upon plaintiff’s refusal to pay the railroad fare of such child, the defendant, by its officers and agents, had the right to remove both plaintiff and the child from the train, although plaintiff had paid her own fare and the conductor had refused to return same to her.
    2. In this ease, the minor child was accompanying his mother from Kendallville to Wauseon,.and boarded the train with its mother at Kendallville, was in plaintiff’s charge and under her control, and she was in law, responsible for his presence in the car, and it was plaintiff’s duty, in law, to see that his fare was paid. The defendant was under no obligation to carry the boy without being paid therefor, - and had a right to demand the fare of the plaintiff, and upon refusal so to ■ do, the defendant had a right to remove both from the train.
    3. If, in effecting such removal, the conductor used no more force than was necessary to overcome the resistance made by the plaintiff, and therein did no bodily injury, then the plaintiff is not entitled to recover, and your verdict should be for the defendant.
    4. It was the duty of the plaintiff, after refusing to pay the fare of her minor son, to leave the train at Corunna, after notice so to do by the conductor, and upon refusing so to do the conductor was justified in removing her therefrom, using-no more force than was necessary to accomplish the same.”
    The court refused to charge as requested, and proper exceptions were taken to such refusal.
    The court charged the jury as to the right of the conductor to eject her and her boy from the train as follows:
    “When the conductor demanded the plaintiff that she pay the fare of, or furnish a ticket for the child - in her charge, her own child, it was her duty so to do, and upon her refusal, and persisting in such refusal, the conductor had a right at the first station to stop and remove both her and the child from the train, if she refused to get off without such removal, providing, .however, that he first restored, or offered to restore to her, the unearned value of the ticket he had taken from her for the ride from Kendallville to Wauseon. Therefore before exercising the right to eject her from, the ear, and before ejecting her from the train it was his duty to either tender her the ticket he had taken, and demand the regular fare of herself and child for the distance they had already ridden, or if he retained the ticket, to tender her the difference between the price paid for the ticket at Kendallville and the regular fare of herself and child from Kendallville to Corunna, or tender her a stop-over check for herself from Corunna to Wauseon and demand the fare of the child from Kendallville to Corunna.
    “If he did none of these things, but retained her ticket, and while so retaining her ticket he ejected the plaintiff and her child from the cars at Corunna, and while in the line of his duty as defendant’s employee, and as such agent or conductor, then she will be entitled to a verdict at your hands. ’ ’
    Proper exceptions were taken to this charge by counsel for the railroad company, and a motion filed for a new trial, which was overruled.
    The judgment having been affirmed by the circuit court, a petition in error was filed in this court, seeking to reverse the judgments below.
    
      E. D. Potter, Thomas Emery and Geo. G. Green, for plaintiff in error.
    
      W. W. Touville, for defendant in error.
   Burket, J.

If the charge of the court, as given, was right, there was no error to the prejudice of the railroad company in the refusal to charge as requested. In the charge as given, the court fully concedes the right of the conductor to eject the defendant in error for nonpayment of fare for her boy, but held it to be his duty, before ejecting her, to restore, or offer to restore to her the unused value of her ticket over and above the fare of both from Kendailville to Corunna. •While the court held the. conductor to this duty, it gave him the option to perform the duty, either by returning the ticket and demanding the fare of both for the distance already traveled, or by tendering a stop-over check for herself from Corunna to Wauseon, and demanding fare for the child from Kendailville to Corunna, or by tendering her the difference in money between the price of the ticket and the fare of both from Kendailville to Corunna.

This charge concedes to the company all its rights, if not more.

Upon her refusing to pay fare for the boy, the company had a right to put both off the train at the next station, and collect fare for the boy to that station, but it had no right to confiscate her ticket to Wauseon, and appropriate the same to its own use without compensation to her. Before putting her off the cars, the conductor should have returned to her the unused value of her ticket, either by paying such value to her in money, or by giving her a stop-over check and collecting fare for the boy for the distance already traveled. If the ticket was already canceled so as not to avail her on another train, its return would have been of no value to her, and this the company knew, while she may not have known it. In such case it was the duty of the conductor to give her a stop-over check, or compensate her in money to the amount of the difference between the cost of the ticket and the fares of both to Corunna. As between her and the company, the conductor represented the company, and the rights and liabilities of the parties were the same as if the company had been present and transacted the business through its highest officers; and, therefore, neither the inconvenience of making change, nor the want of authority on part of the conductor to pay the unused value of the canceled ticket, can shield the company from liability. As the ticket was such as to entitle the holder to a stopover at any station, the contract of carriage was not an entire, but a severable contract, and upon notice to the conductor that she desired to stop at an intermediate station, it was his duty to give her a stop-over check; and when he was about to forcibly eject her from the train, it was still more his duty to give her such check. It was his duty before commencing to eject her from the train, to either pay her the unused value of her ticket over and above the fares of both for the distance already traveled, or give her a stop-over check and demand the fare of the boy, and if this had been done, she would most likely have paid the boy’s fare and avoided the diságreable scene which followed. At all events it was her right to have the unused value of her ticket restored to her before being ejected from the train. True, she was in the wrong in refusing to pay fare for the boy, but the company was also in the wrong in retaining the unused value of her ticket, and in ejecting her before returning, or offering to return to her such value, either in money or stopover check. Her wrong did not warrant the company in expelling her from the train without returning ' to her the remaining value of her ticket. The expulsion was, therefore, unlawful, and the company became liable to respond in damages.

There is always liable to be more or less friction between the traveling public and transportation companies, and while railroads should be fully protected in the enforcement of their reasonable rules, passengers must be protected in their rights of property, and against unreasonable annoyances.

The case of Railroad v. Hoeflick, 62 Md., 300, and Wood’s Railway Law, section 353, cited by plaintiff in error, only go to the extent that upon refusal to pay fare for a child, both the child and person having it in charge may be ejected from the train. Nothing is there said as to the right to have the unused fare returned. The charge of the court in the case at bar fully conceded all that is covered by these two authorities.

The following eases are in point, and throw some light upon the question under consideration in this case. 1 Wardwell v. Railway, 46 Minn., 514; 24Am. St. R., 249; Bland v. Railway, 55 Cal., 570; Vankirk v. Railway, 76 Pa. St., 66.

We find no error in the record.

Judgment affirmed.  