Pease v. Delaware, L. & W.R. Co.

• Citation: 5 N.E. 37,101 N.Y. 367
• Parties: PEASE v. DELAWARE, L. & W. R. CO.
• Decision Date: 09 February 1886
• Court: New York Court of Appeals

101 N.Y. 367

5 N.E. 37

PEASE

v.DELAWARE, L. & W. R. CO.

Court of Appeals of New York.

Filed February 9, 1886.

ANDREWS and DANFORTH, JJ., dissenting.

Hamilton Odell, for appellant.

Thos. M. North, for respondent.

RUGER, C. J.

The court charged the jury, as matter of law, that if the train bearing the plaintiff had stopped at a station, and before it started again he offered by pay his fare, that any subsequent act of the defendant committed in the effort to expel him was unlawful, and rendered it liable for damages occurring therefrom. To this charge there was an exception. We think this direction was erroneous. The facts taken in their most favorable aspect for him showed that the plaintiff boarded the defendant's train at Hoboken, intending to ride to Montclair. When the conductor reached the plaintiff in the process of collecting fare, the plaintiff exhibited a ticket purporting to be good for a passage on defendant's cars from Montclair to Hoboken. This the conductor refused to accept, and requested the plaintiff to pay his fare. He refused, and demanded a passage on the ticket. The conductor told him he should be obliged to put him off unless he paid his fare. The plaintiff then replied, ‘I will sue the company if you put me off.’ An issue was thus deliberately and intelligently made between the parties. The conductor called for assistance, and a brakeman and baggageman appeared, and began the removal. The plaintiff resisted with force the effort to remove him, and continued the struggle without cessation from his seat until he was finally landed on the track outside the car. At the time the plaintiff reached the car-door, and while he was near it on the platform, he stated to those engaged in ejecting him that he did not want to be put off and would pay his fare; but notwithstanding this offer the expulsion continued, and plaintiff was ejected. It is not disputed but that the ticket tendered was insufficient to entitle the plaintiff to a ride from Hoboken to Montclair, nor but that the conductor was justified in ejecting him from the cars for non-payment of fare, but it is claimed that the moment the plaintiff declared his willingness to pay fare the right of the defendant to continue the expulsion eo instante ceased, and the right of the plaintiff as a proposed contractor with the corporation commenced.

This claim is founded upon the assumption that an individual who is in the process of being lawfully and necessarily ejected by force from the cars, in pursuance of statutory authority,stands in the same relation to the carrier as an unobjectionable person tendering fare, and asking passage on its trains from a regular station. It was held in O'Brien v. New York Cent. R. Co., 80 N. Y. 236, that if the stoppage of a train is rendered necessary to expel a passenger therefrom for a fractious refusal to pay fare, that he does not, by offering to pay it before expulsion, become entitled to continue the trip. This authority is quite conclusive upon the question that a mere offer to pay fare, under all circumstances, does not establish new relations between the passenger and carrier, and entitle the passenger to continue his passage.

Hibbard v. New York & L. E. R. Co., 15 N. Y. 460, is to the same effect. There the passenger had bought a ticket which entitled him to transportation from Hornellsville to Scio. After having once shown his ticket to the conductor, he refused to show it again, upon a second request, at a point between the commencement and terminus of his journey. After the train had been stopped for the purpose of expelling him therefrom for such refusal, he exhibited his ticket, but the defendant put him off his train notwithstanding. It was held that this expulsion was justifiable because of the refusal of the passenger to comply with the reasonable requirements of the carrier.

Although it must be assumed upon the evidence in this case that the transaction in question occurred at a stopping place where passengers had the right to get on and off the cars, yet it should be borne in mind that it was not a regular station, and the ordinary time of stoppage at that place was momentary, and was required by law as a measure of precaution in cases wherever railroads crossed each other at grade. Such a transaction as that in question would necessarily cause a detention of the train for a longer or shorter period, according to circumstances, and the proof in this case shows the detention to have been three minutes. When a passenger, by an illegal refusal to pay fare, has rendered it the duty of a conductor, in enforcing the reasonable rules and regulations of the company, to eject him from the cars, and the refusal and resistance of the passenger continues until after force has been required and applied to enforce such rules, we think he cannot make the continuance of the process of expulsion unlawful by an offer to pay fare during its progress. Having invited an appeal to force, the passenger cannot, at his option, reserve the privilege of shielding himself from its application by invoking the protection of a contract, the implied conditions of which he has violated. The trial of his right in a manner which he has deliberately elected to make, cannot be arrested by him, when its course is not proceeding to his satisfaction, so as to make its continuance by the other party unlawful.

The contention of the respondent proceeds upon the assumption that any person, by tendering fare, has established a right to passage upon the trains of a carrier of passengers. This, we think, is not correct. Such a carrier is not required unconditionally to accept all persons who offer themselves for transportation and tender fare. It has been held that they may lawfully decline to receive or carry those who refuse, after knowledge of the same, to conform to the reasonable rules of the company, or to pay their fare, or purchase tickets before entering the cars, and that it may lawfully eject from the train persons committing these offenses. 2 Rorer, R. R. 958 et seq. In such a case as this, we think a passenger who resists the lawful requirement of the company, to the extent of provoking a breach of the peace, and the exhibition of violence in the presence of other passengers, cannot, as matter of law, demand a passage upon the train where such an exhibition has been made. A railroad company has the right, and it is its duty, to enforce order in its...