Burlington & M.R. Co. v. Rose

• Citation: 8 N.W. 433,11 Neb. 177
• Parties: THE B. & M. R. R. CO. IN NEBRASKA, PLAINTIFF IN ERROR, v. SAMUEL B. ROSE, DEFENDANT IN ERROR
• Decision Date: 26 March 1881
• Court: Supreme Court of Nebraska

8 N.W. 433

11 Neb. 177

THE B. & M. R. R. CO. IN NEBRASKA, PLAINTIFF IN ERROR, v. SAMUEL B. ROSE, DEFENDANT IN ERROR

Supreme Court of Nebraska

March 26, 1881

ERROR to the district court of Otoe county. It was an action brought by Rose for the recovery of damages alleged to have been sustained by him in consequence of his removal from a train of the B. & M. R. R. Co. The plaintiff in his petition alleged that the weather was exceedingly warm at the time and that he was ill, which fact was known to the conductor and that he was willing and offered to pay a reasonable compensation to the conductor in charge of the train, and that the conductor removed him and he was compelled to walk to Waverly, the nearest station to where he was removed, and that his illness was increased and aggravated thereby, and that he was damaged, etc. The answer of the company in its first count contained a general denial, and in its second count set up a regulation that passengers would not be carried on freight trains unless they were provided with tickets, and also alleged that such regulation was known to the plaintiff, Rose. The answer further alleged, that "by a further rule or regulation of said defendants, the conductors of all freight trains were required to eject from their cabooses, cars, and trains, all passengers who had not provided themselves with tickets or the proper vouchers."

To this answer Rose filed a reply, denying each and every allegation contained therein, and also alleged that the company was accustomed to carry passengers by its freight trains, and did so regularly, and provided its freight trains with cars for carrying passengers thereon. And that the railroad company was carrying passengers on the train from which he was removed, and that there were passengers on said train traveling thereon, and that said train was engaged in carrying passengers. Trial before POUND, J., and a jury resulted in a verdict and judgment against the company for $ 500.00, from which they prosecuted this petition in error.

REVERSED AND REMANDED.

T. M Marquett, for plaintiff in error, cited on question of carrying passengers on freight train: Arnold v. I. C. R. R., 83 Ill. 273. Eaton v. D. L. & W. R. R. Co., 57 N.Y. 382. Creed v. Penn'a R. R. Co., 86 Pa. 146. Ill. Cent. R. R. v. Johnson, 67 Ill. 312. O. & M. R. Co. v. Swarthout, 67 Ind. 567. Wilton v. U. R. R. Co., 107 Mass. 108. Dunn v. Grand Trunk R. R., 58 Me. 187. Hutchinson on Carriers, 447. As to notice: C. & A. R. R. v. Randolph, 53 Ill. 510. Eaton v. R. R. Co., 57 N.Y. 382. Dietrich v. P. R. R. Co., 71 Pa. 432. O. & M. R. Co. v. Applewhite, 52 Ind. 540. Johnson v. Concord R. Co., 46 N.H. 213. State v. Overton, 24 N.J.L. 435. State v. Goold, 53 Me. 279. T. P. & W. R. Co. v. Patterson, 63 Ill. 304. Law v. Ills. Cent. R. R., 32 Iowa 536. Also: Shearman & Redf. on Neg., 292. U. P. R. R. Co. v. Nickols, 8 Kan. 518. C. C. & C. R. Co. v. Bartram, 11 Ohio St. 457.

Ransom & Covell, for defendant in error, cited Constitution, sec. 4, Art. II. C. & A. R. R. v. Flagg, 43 Ill. 364. Hutchinson on Carriers, 570. C. & C. R. R. Co. v. Bartram, 11 Ohio St. 457. Ills. & C. R. R. Co. v. Sutton, 53 Ill. 397. K. P. R. R. Co. v. Kessler, 18 Kans., 523. Gen. Stats., 195, 203, 198. Shearman & Redf. on Neg., 304. McDonald v. C. & N. W. R. R. Co., 26 Iowa 124. Maroney v. Old C. & N. R. R. Co., 106 Mass. 153. Gen. Stat., 195, sec. 109.

LAKE, J. MAXWELL, CH. J., dissenting.

OPINION

LAKE, J.

The only questions to be considered in this case were raised by certain of the instructions given to the jury.

It appears that on the twenty-first day of July, 1879, the defendant in error (plaintiff below), desiring to go from Waverly, in Lancaster county, to Lincoln, went upon one of the freight trains of the plaintiff in error, provided with what is called a caboose car, for that purpose, from which he was ejected by the conductor of the train, a short distance out of Waverly, for the reason that he had not provided himself with a ticket, as a rule or regulation of the company then in force required, and after he had tendered to the conductor the customary fare in money.

One of the instructions to which exception was taken in the court below, and which fairly presents the principal point of difference, was in these words, viz.:

"The rule or regulation claimed by the defendant to have been adopted by it, that passengers would not be carried on freight trains unless they first provided themselves with tickets, will not justify defendant in having removed plaintiff from, or compelled him to leave, the freight train at a point on defendant's road not a regular station or stopping place, because plaintiff had not complied with such rule or regulation, unless plaintiff knew of such rule or regulation before he entered upon the train, or was informed that the defendant had such a rule or regulation before the train left the station where he took passage, provided plaintiff was willing and offered to pay for his passage."

It is clear, from the evidence, that the rule of the company here referred to was duly issued and published on or about the first day of June, 1879, and that copies thereof, in imposing form, were posted in all of the company's passenger stations, and in the cabooses employed on the road. The testimony of the station agent at Waverly, which was not contradicted, is to the effect that for more than a month before the day of the occurrence complained of, two of these notices had remained posted in the most conspicuous places in the waiting room at that station, and were still there on that day. It is clear, also, that the defendant in error had no actual knowledge of this regulation until informed by the conductor after the train had started, and just before he was put off. That he offered to pay for his passage in money to the conductor, is also conceded.

We believe the authorities are generally in accord as to the right of a railroad company to make, and, in a proper manner to enforce, a rule or regulation to carry passengers on its freight trains, either not at all, or only upon the condition that they are provided with tickets, and prohibiting the collection of fare by conductors of such trains. Chicago & Alton R. R. Co. v. Flagg, 43 Ill. 364. Arnold v. I. C. R. R. Co., 83 Ill. 273. Eaton v. Railroad Co., 15 Am. Rep. 513. The C. C. & C. R. Co. v. Bartram, 11 Ohio St. 457. Law v. Ill. Cent. R. Co., 32 Iowa 534. The point on which they are not harmonious is as to the manner of its enforcement, some courts holding, as was held by the court below in the instruction quoted, that actual notice of the rule must be brought home to the passenger before the train leaves the station in order to justify his expulsion therefrom for want of a ticket at any other than a regular stopping place. Ill. Cent. R. R. Co. v. Sutton, 53 Ill. 397. While others, with better reason, we think, only require a suitable general notice to the public for such length of time before the rule is to be put in operation as to make it reasonably certain that all passengers in the exercise of due diligence must become aware of it; and that the right of expulsion for non-compliance with the requirement may be exercised in any suitable place, under all the circumstances of the particular case. C. C. & C. R. R. Co. v. Bartram, 11 Ohio St. 457. Law v. Ill. Cent. R. R. Co., 32 Iowa 534.

As to the notice here given of the regulation, we are of opinion that it was reasonable and all that should be required of the company in this particular to put passengers seeking conveyance on a freight train on their guard. With reasonable diligence on his part, we think the defendant in error would have become informed of the necessity of providing himself with a ticket before entering the car. He knew that the train on which he purposed to go was not intended for passengers generally, but mainly devoted to the transportation of freight, and that the caboose which he...