
    Jauncey Ketchum, Respondent, v. New York City Railway Company, Appellant.
    First Department,
    March 15, 1907.
    Railroad — when rules as to issue of transfers not unreasonable.
    A railroad may adopt and enforce rules respecting the conduct of its business for ' its own protection, provided they do not seriously inconvenience passengers or subject them to probable loss or deprive them o£ .legal rights.-
    The rule of a street railroad which issues transfers for several intersecting lines that a passenger must demand the transfer at the time of payment of fare is not unreasonable, for the company is entitled to protect itself against dishonest persons who may seek to obtain more than one transfer.
    (Per Laughlin, J.): Said rule is reasonable so long as transfers issued are unlimited as to the points at which they may be used, and while the company permits passengers receiving transfers to remain on the car to the end" of the line without using them.
    Appeal by the defendant, the New York City Railway Company, from an order .'of the Appellate Term of the- Supreme Court, entered in the office, of the clerk of the county of New York on the 11th day of December, 1906, affirming a judgment of the Municipal Court of the city of New York in favor of the plaintiff entered on the 9th day of October, 1906.
    
      James L. Quackenbush, for the appellant.
    
      E. V. R. Ketchum, for the respondent.
   Scott, J.:

This appeal involves only the’ question as to the reasonableness of a rule adopted by the defendant corporation requiring that passengers desiring transfers must obtain them from the conductor at the time of paying fare, and that no transfers will be issued on the cars at any other time. . .

The defendant owns or controls and operates a large number of street car lines in the city of Rew York, some running approximately north and south, and others approximately east and west, the intersecting points being transfer points.

The statutory duty to give" transfers is contained in section 104 of the Railroad Law (Laws of 1890, chap. 565, § 105, as renumbered and amd. by Laws of 1892, chap, 676) and reads as'follows: “ Every such corporation entering into such contract shall carry or permit any other party thereto to carry between any two points on the railroads or portions'thereof embraced in such contract any passenger desiring to make one continuous trip between such points for one single fare^ not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall upon demand and without extra charge give to each passenger paying one single fare a transfer, entitling such passenger to one continuous trip to any point or portion of any railroad embraced in such contract, to the end that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare. For every refusal to comply with the requirements, of this section the corporation so refusing shall forfeit fifty dollars to the aggrieved party.”

It is to be noted that the rtatute does not contemplate the giving of a transfer to every passenger, but to any passenger who, wishing to make a continuous trip, shall demand a transfer. The plaintiff’s contention is that the statute gives to each passenger the absolute right to demand a transfer at any time during the trip, and that to' fix one particul rr time at which alone such a demand will be complied with is u nreasonable and unlawful. The defendant urges that the regulation adopted by it complies with the statute, is reasonable and, therefore, ft jyful. That a common carrier of passengers not only has the right, but is bound to make rules and regulations to insure the safe, effective and -jom for table operation of its corporate business is undoubted (Barker v. Central Park, etc., R. R. Co., 151 N. Y. 237; Montgomery v. Buffalo R. Co., 165 id. 139), and it is equally clear that it is entitled to adopt and enforce rules designed to protect itself against fraud and imposition. As was said in an early case: Such regulations as will enable a railroad corporation to execute its difficult and responsible duties, insure the comfort, and safety of its passengers and protect itself from wrong and imposition it has an undoubted right to prescribe, provided such, regulations are reasonable and just.” (Hibbard v. N. Y. & Erie R. R. Co., 15 N. Y. 463.) The first duty of a railroad company is undoubtedly to its passengers, and its highest obligation to obey the law. Subject to the performance of these duties and obligations it is its right to protect itself, for with the duty of carrying passengers is coupled the right of receiving lawful compensation therefor. Hence it has been held in many cases that it Was within the right of a railroad company to make regulations to insure that no passenger who failed to pay his fare should be carried, and these regulations have often been .upheld even if they imposed some slight inconvenience upon the passenger. H is of common knowledge that upon steam railways generally, and . upon the elevated and underground railways in this city, passengers are required to pay full fare before entering the cars, and consequently before any service has been rendered, but nc case has questioned the -reasonableness of this regulation. In Walker v. Dry Dock, etc., R. R. Co. (33 How. Pr. 327) it was held by the General Term of the Court of Comrhon Pleas that, where coupon tickets were sold, a regulation- that the coupons must be torn oft by the conductor, and. would not be received if 'otherwise detached,- was a reasonable regulation to protect the company from imposition. In Elmore v. Sands (54 N. Y. 512) a regulation that a ticket must be used on the day it was purchased was held to be a reasonable rule to protect the company.from fraud. ' So, also, it has been held^ reasonable to require a passenger to show his ticket when required by the conductor to do so (Hibbard v. N. Y. & Erie R. R. Co., supra), and to require passengers to surrender tickets before reaching the station nearest their destination without receiving any other evidence of the payment of fare. (Vedder v. Fellows, 20 N. Y. 126.) Many other cases might be cited to the same general effect, but. it is unnecessary to multiply authorities to, support a doctrine so well established as that a- railroad company may adopt and enforce rules respecting the conduct of its business for its own protection, provided they do not seriously inconvenience their passengers, or subject them to probable loss, or deprive them of any right to which they are-entitled by law. ■

In considering the reasonableness of the rule sought to be upheld , by this defendant two questions. present themselves: First,' is it reasonable to fix upon some one point in‘each trip at which-a passénger wishing a transfer must demand it,' and, secondly, is it -reasonable to. fix as that point the time at which the fare is paid, instead of some other time, as for instance when the passenger alights.

It is certain that each passenger is entitled to but a single transfer, and the company is clearly entitled to protect itself, if possible, against dishonest passengers who might seek to obtain more than one. The _ evidence shows, and common experience verifies the fact, that at certain hours the defendant’s cars are very crowded, and it would be imposing upon the conductors an impossible task to require them to carry in memory every passenger to whom has been given, in the course of a long trip, a transfer, and although in a given case a conductor might be quite sure that he had given a transfer to a demanding passenger, the heavy penalty imposed by the Railroad Law in case of refusal, with the impossibility of producing any proof beyond his own recollection, would make it very hazardous to refuse to give a transfer upon demand. If, therefore, the statute must be so construed as to-entitle a passenger to demand and receive a transfer at any time during his trip, the company would be practically powerless to protect itself against repeated demands by the same passenger. ’ It does not in our opinion require such a construction, and we consider that it is reasonable to make a rule fixing upon a definite point in each trip when the right to demand a transfer shall be exercised. Is it reasonable to fix the time at which the fare is paid as the time for making the demand ? Assuming that some one point of time may lawfully be fixed, there are two obvious- points which suggest themselves as appropriate. One is the time of paying the fare; the other is the time of disembarking at the point of intersection, While it is the duty of the court, when called upon, to pass upon the reasonableness of a regulation, it is no part of its duty to make regulations, or even to suggest alternatives for those made by the company. Prima facie when it comes to'a question of choice between two possible methods, the judgment of the managers of the railroad is entitled to some weight, for they are to be presumed to be cognizant of the conditions, requirements and difficulties of the service, and it is not to be lightly assumed that they have adopted a regulation without due reflection, or that they deliberately seek to avoid their statutory obligations. It was suggested upon the argument that there were two reasons why it would be inconvenient and perhaps dangerous to the traveling public generally to fix the time of diseinbarkment at the transfer pqint as the time of giving out transfers on demand. One reason was that at this particular time the conductor will probably be quite sufficiently occupied in seeing to the safety of the passengers who might be getting off and on the- car. The other reason was that if the transfers were given out as passengers disembarked the stops would necessarily be longer at points of intersection, and thus the general movement of the cars would be' retarded. It cannot be said that these reasons are without weight.; In- considering the reasonableness of the particular regulation .in question it is proper to consider the system of transfers adopted by defendant, of which proof was made in the court below, and which* as we consider, have an important bearing upon the reasonableness .of the rule now under ' consideration. As already said, the system of railroads operated by defendant includes a number of longitudinal "lines, running approximately north and south, and a number of intersecting transverse lines running approximately east and west: Under the system adopted by defendant a passenger starting to ride upon a longitudinal or transverse line, as the case may be, and receiving a transfer may, at his option, use the transfer at any point of intersection, or may not use it at all, but may, notwithstanding he has taken a transfer, continue on the line upon which he. started to the end of the route, and he is not called upon to decide when demanding the transfer at what point he will use,it, or whether he will use it at all. Under this system the only passenger likely to be inconvenienced, because he had not demanded a transfer upon commencing his journey, would be one who started without the intention of transferring, and then, during the trip, changed his mind. We see.no reason to suppose that such cases would be at all numerous. We are, therefore, of the opinion that the regulation in question, considered with respect, to the system of transfers now in operation,' is reasonable and lawful. Of course, if the defendant should hereafter adopt a less liberal transfer system, as, for instance, requiring a passenger at 'the time of .talcing a. transfer to irrevocably determine at what point he would transfer, or whether he would transfer at all to another line, a very different question as to the- reasonableness of the rule pow under consideration might be presented. The evidence shows that the rule lias.been posted conspicuously and advertised in. such manner as to bring it to the notice of the traveling public generally. There is reason to believe that plaintiff knew of the existence of the rule and demanded a transfer in violation of it expressly to lay a foundation for this action, but whether he actually knew of the existence of the rule or not is immaterial, so long as it had been properly and reasonably advertised, as we think it had been. (Barker v. Central Park, etc., R. R. Co., supra)

It follows that the judgment of the Appellate Term and of the Municipal Court must be reversed and a new trial, granted, with costs in this court and in the courts below to appellant to abide the event.

Patterson, P. J., Laughlin, Houghton and Lambert, JJ., concurred.

Laughlin, J. (concurring):

I concur in the opinion of Mr. Justice S.cott, but wish to specially emphasize some points and limit my views on others.

As this appeal is presented to us, the rule requiring that passengers desiring transfers shall demand the same at the time of paying their fares is reasonable. The defendant is issuing transfers, not for particular points or lines, but good at any point, and we are informed by the learned counsel for the defendant, who argued the appeal, that it accords to passengers the right to remain on the car on which a transfer has been obtained to the end of the line without using the transfer. It is quite likely that the defendant would have the right to limit the transfers to particular points or lines and require the passenger to elect at what point he wishes to transfer; and it is not at all clear that a passenger would have the right, against the will of the company and without paying another fare, to remain on the car on which he received a transfer after passing the connection for which the transfer was given, or the last transferring point on the line. If the company should assert either of these rights, then it may well be doubted whether this rule could be deemed reasonable. In the present circumstances, however, and' while the transfers are unlimited as to the points at-which they may be used, and while the company permits passengers after receiving transfers to remain on the car to the end of the line without using them, the rule requiring the passengers to elect on paying their fare whether or not they desire transfers, can work no injustice to the traveling public, at least not after the people understand that they are entitled to demand a transfer and use it. or not,, as they like. The passenger may protect himself...in all cases where there is a possibility that he may need a transfer by demanding one on paying his fare. Since the. passengers may enjoy all of their rights .under this rule, being at liberty to demand a transfer in all cases on paying their fare and! to use it or not as they like, and it is. deemed essential to the protection of the company against demands for more than one transfer by a single.' passenger, and demands for transfers by those who have not paid their fare, it should be upheld by the courts as reasonable.

Determination and judgment reversed, new trial ordered, costs to appellant to abide event. ' Order filed.  