Ellsworth v. Chi., B. & Q. Ry. Co.

• Decision Date: 28 May 1895
• Citation: 63 N.W. 584,95 Iowa 98
• Parties: ELLSWORTH v. CHICAGO, B. & Q. RY. CO.
• Court: Iowa Supreme Court

95 Iowa 98

63 N.W. 584

ELLSWORTH

v.CHICAGO, B. & Q. RY. CO.

Supreme Court of Iowa.

May 28, 1895.

Appeal from district court, Adams county; H. M. Towner, Judge.

On the morning of September 27, 1893, the plaintiff procured a ticket on defendant's line of road from Prescott to Corning, a distance of 7 1/3 miles. Because of the fair at Corning, the company was selling round-trip tickets at reduced rates, which tickets had to be filled in with a pen. The plaintiff was late reaching the depot at Prescott, so that there was no time to fill up a round-trip ticket, and he told the agent to give him a “straight ticket.” The train was moving, and plaintiff took the ticket handed him, and caught the train, and got onto the rear platform. Because of his haste, he did not pay for the ticket, but said to the agent that he would pay on his return, to which the agent assented. By a rule of the company, tickets must be used on the day they are purchased, and, if not so used, they may be returned, and the purchase money will be refunded. The ticket given plaintiff was dated September 24, 1893, instead of the 27th, the day on which it was handed to plaintiff. The delivery of the ticket to plaintiff was a mistake, it having before been sold, and not used, and then redeemed, as above stated. The redemption was by the night agent at Prescott, who put it in the drawer in the ticket office, and the day agent, without noticing the date, gave it to plaintiff. When a short distance from Prescott, the conductor asked for plaintiff's ticket, and the ticket in question was handed him, which, because of its date, he refused, and demanded the fare. The regular fare to Corning is 22 cents, and by the rules of the company, authorized by the laws of the state, 10 cents above the regular fare is collected by conductors when the ticket office has been open for a reasonable time before the departure of trains, and tickets are not secured. After the refusal of the conductor to receive the ticket, plaintiff offered to pay the regular fare, but refused to pay the additional 10 cents. The train was stopped, and plaintiff ejected, and this action is for damages. There was a verdict and judgment for the plaintiff, and the defendant appealed. Affirmed.Smith McPherson, for appellant.

Davis & Wells, for appellee.

GRANGER, J.

1. The court gave the jury the following instruction: “The ticket introduced in evidence, and which is admitted as the one purchased by plaintiff of defendant's agent, is dated September 24, 1893, and contains the following clause: ‘Continuous passage within one day of date of sale. You are instructed that said clause is a limitation of the time on which said ticket will be honored, and, as such, is a reasonable limitation and rule. You are further instructed that, presumptively, the date of the ticket was the day of its sale. But if, as a matter of fact, the day of the sale differs from the date of the ticket, yet the said ticket by its express terms was good from the date of sale, and you find from the evidence that said ticket was purchased by plaintiff on the 26th or 27th day of September, 1893, and was presented within one day from the actual date of such sale, it was good for such passage between the points named, to wit, Prescott and Corning.” The instruction is said to involve error because it treats the transaction between the agent and plaintiff as a sale of the ticket, when it appears that the ticket was not paid for on delivery, but it was paid for afterwards on the same day. On that branch of the case the court gave the following instruction: “In the case at bar it is admitted that plaintiff procured a ticket from the defendant's agent at Prescott before entering defendant's cars. It is also admitted that payment was not made until thereafter. On this branch of the case you are instructed that a neglect of plaintiff to pay for the same at that time, under the circumstances shown on the trial of this case, would not alone, or for that reason, invalidate the ticket; and an acceptance on the part of the agent of plaintiff's promise to pay therefor on his return, and a payment thereafter, constitute a valid consideration and payment therefor.” It seems to us that that is the correct rule. Had there been a refusal to accept the ticket because not paid for, the question might be different. It is not what could be called a credit sale, nor was it intended as such, but only a delay in payment because there was not time to pay and get the train, and payment was expected the same day, and so made.

2. There is a further complaint of instruction No. 6 because, notwithstanding the clause, “continuous passage within one day of date of sale,” it holds the ticket good if presented “within one day from the actual date of such sale.” This contention means that the validity of the ticket for the passage depended upon its date rather than the fact as to the sale. We cannot concur in that view. It is not to be believed that the company ever intended to sell a ticket that should not be honored for a passage on the day of the actual sale. It is true that the intent is, in such cases, to have the two dates concur, but no company or person would ever design that its mistake in such a way should be to the prejudice of a purchaser of a ticket. It is not to be doubted that both the company and the plaintiff intended that the ticket in question should be good for a passage on the train on which it was offered. The facts admit of no other conclusion. It is equally true that the plaintiff was, as between himself and the company, entitled to passage on that train, and that his ejectment from it was wrongful. The more difficult question is as to his remedy for the wrong done him; that is, when the conductor refused to accept the ticket because of its date, had the plaintiff the legal right to insist on a passage on that train, and resist removal therefrom, or should he have paid his fare, as demanded, and sought redress from the company on that basis, or, not wishing to do that, should he, on request of the conductor, to avoid damage, have left the train without resistance, and based his damage on the mistake in selling him the ticket? Authorities on this question are far from being harmonious. Other courts have, and this court should, in determining these questions, keep in mind the difficulties to be met with and overcome in a successful management of the railway passenger traffic of the country, both as to the public and the carriers. To such an end it is clearly important that there shall be rules for the guidance of employés in the different parts of the service, and that such rules should be conclusive as to their course of conduct, even though at times the rule may operate to the prejudice of an individual passenger. We may instance a case or two as illustrative of it, as when a person who has purchased a ticket loses it. All will at once see that, although he has paid for the passage, he is not entitled to it on the lost ticket, because the only evidence to show the conductor that he has purchased a ticket is his word, and the confusion and consequences to result from such a system of management are too manifest to deserve comment. Take, also, a case in which a ticket is paid for, but no ticket handed to the passenger, through the neglect of the agent, and the passenger boards the train with no evidence of a right to a passage. The equitable status of the passenger in this case is somewhat stronger than in the other, but the importance of a rule of conduct for the conductor is equally strong. In such a case there is no harshness in the rule requiring him to seek his damage, if any, on the basis of a failure to deliver the ticket, and which excludes him...