M. R. R. v. Rose

• Decision Date: 26 March 1881
• Citation: 8 N.W. 433,11 Neb. 177
• Parties: B. & M. R. R. v. ROSE.
• Court: Nebraska Supreme Court

11 Neb. 177

8 N.W. 433

B. & M. R. R.

v.ROSE.

Supreme Court of Nebraska.

Filed March 26, 1881.

Error from Otoe county.

Mr. Marquett, for plaintiff.

Covell & Ransom, for defendant.

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 is 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 effect that, for a 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. Co. v. Flagg, 43 Ill. 364;Arnold v. I. C. R. Co. 83 Ill. 273;Eaton v. R. 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 the regular stopping place. Ill. Cent. 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. Co. v. Bartram, 11 Ohio St. 457;Law v. Ill. Cent. 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 proposed to go was not intended for passengers generally, but mainly devoted to the transportation of freight, and that the caboose which he entered was not fitted up for the accommodation of the traveling public generally. When he applied to the agent of the company to check his baggage he was told that no checks were given for that train, and that if his baggage were sent it must go as freight, and be paid for as such. He accordingly had it billed as freight and forwarded. It...