Dixon v. New England R.R.

• Decision Date: 04 June 1901
• Citation: 179 Mass. 242,60 N.E. 581
• Parties: DIXON v. NEW ENGLAND R. R.
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

179 Mass. 242

60 N.E. 581

DIXON v. NEW ENGLAND R. R.

Supreme Judicial Court of Massachusetts, Suffolk.

June 4, 1901

COUNSEL

Hamilton & Eaton, for plaintiff.

Chas F. Choate, Jr., for defendant.

OPINION

BARKER J.

The plaintiff, after having ridden upon one of the defendant's passenger trains from Bristol, Conn., to Waterbury, was there arrested for fraudulent evasion of fare and brought this action. The declaration alleges that the defendant, by its agents, officers, and servants, assaulted the plaintiff, caused him to be arrested and imprisoned wrongfully and unlawfully, and kept him so imprisoned and deprived of his liberty for the period of 24 hours. The answer denies each and every allegation of the declaration. The defendant was operating a line from Boston to the state of New York, formerly owned and operated by the New York & New England Railroad Company. On July 27, 1896, according to the plaintiff's testimony, he bought of a broker at Boston a ticket which had been issued by the New York & New England Railroad Company, which read 'From Waterbury to Hartford,' and then bought at the defendant's Boston station a ticket from Boston to Hartford, upon which he rode from Boston to Williamantic, where he left the train, and remained during the night. He testified that on leaving Boston the conductor punched twice the ticket on which the plaintiff was riding, and that he received no stop-over check. On the next morning he was carried from Willimantic to Hartford on the same ticket, and then continued his journey from Hartford on the same train, with a different conductor. After leaving Hartford, he tendered to the conductor the ticket reading 'From Waterbury to Hartford,' and the conductor punched it twice, and placed it in the back of the seat in front of the plaintiff. At Bristol, a station between Hartford and Waterbury, he left the car, and stopped until the next train. Whether he notified the conductor that he wished to stop at Bristol was in dispute. He took the next train for Waterbury, and, when asked for his fare, tendered the same ticket on which he had ridden from Hartford. The conductor declined to accept the ticket on the ground that it had been used all the way between Hartford and Waterbury. This the plaintiff denied and explained the circumstances, but the conductor refused to accept the ticket, and notified the plaintiff that he must pay his fare, or the conductor would have him arrested, stating that the ticket would be good if not twice punched, and that it would have been good to stop off on at Bristol if he had asked for a stop-over check. Several times before arriving at Waterbury the conductor asked for the fare, and the plaintiff tendered the ticket, and the conductor refused to accept it, and said that, if the plaintiff would not pay his fare, he would have him arrested. The evidence as to the arrest was conflicting. The plaintiff testified that upon the arrival of the train at Waterbury the conductor touched him on the shoulder or arm, and said, in substance, 'Come with me,' and that the plaintiff went with him to the platform, where the conductor turned him over to a policeman, saying, 'Take this man in charge.' There was no dispute that Dean, a policeman, arrested the plaintiff without a warrant, and took him to the station house, where he was locked up from one to three hours, when he was released on bail, and upon the next day he was arraigned in the city court upon a complaint for fraudulent evasion of fare, upon which he was tried and acquitted. The conductor, in his testimony, gave a different account of the arrest from that given by the plaintiff. He denied touching the plaintiff, or beckoning the plaintiff to come with him, and testified that, after he had helped the passengers to the platform at the station, the plaintiff was standing at his right, possibly six feet away; that the plaintiff spoke to him, and said he would go with him; that the conductor said, 'All right,' he would see if he could find a place for him. 'We walked through the depot, and just on the opposite side a policeman was standing, and I spoke to him, and I told him that this gentleman refused to pay his fare, and before him I demanded his fare from Bristol to Waterbury. Mr. Dixon says, 'And before you I offer this ticket to the conductor for my fare from Bristol to Waterbury.' The policeman took the ticket, and looked at it, and said, 'That ticket isn't good.' This was stated in the presence of Mr. Dixon. Mr. Dixon said, 'Why?' and he said, 'Because it is punched.' I asked him for his fare again, and he refused to give it. I told the policeman that I demanded his arrest for his fare from Bristol to Waterbury, which was 37 cents, and that, if he would pay the 37 cents, to let him go. The policeman told Mr. Dixon, 'You will have to come with me.' He made some hesitation, but the policeman got him, and took him by the arm, and they walked on.' There was evidence of the defendant's rules and customs as to punching tickets, and as to allowing passengers to stop over, and the use of stop-over checks, and also as to whether the defendant was bound to honor tickets issued by the New York & New England Railroad Company, and as to its customs and instructions upon that subject. Sections 1591, 3541, and 3607 of the General Statutes of Connecticut making it a penal offense fraudulently to evade payment of a railroad fare, were in evidence, as also section 2002, requiring police officers and others in their respective precincts to arrest without previous complaint and warrant any person for any offense within their jurisdiction, when the offender shall be taken or apprehended in the act, or on the speedy information of others.

The first exception argued was to the admission of declarations of Dean that he had arrested the plaintiff for evading his fare, and that he (Dean) heard the conductor, in his presence, demand fare of the plaintiff at the station, and the plaintiff refuse to pay, tendering his ticket. There was evidence that Dean was dead at the time of the trial. The admission of the evidence shows that the presiding judge was satisfied that the declarations were made in good faith, and upon Dean's personal knowledge, and before the beginning of the suit. Evidence of them was therefore admissible. St. 1898, c. 535; Brooks v. Holden, 175 Mass. 137, 55 N.E. 802.

Another exception was to the reading of certain extracts from the defendant's rules. The rules were admissible in evidence. O'Laughlin v. Railroad Co., 164 Mass. 139, 41 N.E. 121, and cases cited. Such rules are not records, and are sufficiently identified if it is shown that they are issued by those who conduct the business of a common carrier for the government of its servants. The sufficiency of identification is a question for the presiding judge, upon which his finding is conclusive, unless all the evidence is reported, and the finding is unwarranted by it. Gorton v Hadsell, 9 Cush. 508, 511...