Peabody v. Oregon Ry. & Nav. Co.

• Decision Date: 24 June 1891
• Parties: PEABODY v. OREGON RY. & NAV. CO. [1]
• Court: Oregon Supreme Court

26 P. 1053

21 Or. 121

PEABODY v. OREGON RY. & NAV. CO. ^[1]

Supreme Court of Oregon

June 24, 1891

Appeal from circuit court, Wasco county; J.H. BIRD, Judge.

(Syllabus by the Court.)

It is the duty of a passenger, if he has not the required ticket or token evidencing his right to travel on that train, to pay his fare or quietly leave the train when requested, and resort to his appropriate remedy for the damages he has sustained; and if he attempts to retain his seat without paying his fare, and is expelled by the conductor, using no more force than is necessary, he can recover no damages for the injury incurred by such expulsion.

When it is admitted that a railroad company is the owner of a railroad then being operated, a presumption arises that the same is operated by the company owning it, and the burden of proof is upon such company to show to the satisfaction of the jury that such is not the fact.

W.W. Cotton and Snow & Gilbert, for appellant.

A.S Bennett, for respondent.

LORD J.

This is an action in tort to recover damages for the wrongful acts of the defendant's agents or servants in ejecting the plaintiff from one of its cars. There are mainly two questions presented by this record, but the controlling one arose substantially out of this state of facts: The plaintiff, who is a stock-dealer, had shipped stock from Grant's station to Portland, and had received from the railroad company a shipping contract which entitled him, upon the performance of certain conditions, to a passage from Grant's to Portland and return. Going to the office of the company earlier than its business hours, he was unable to get the ticket stamped, and otherwise perform its conditions so as to ride upon it, without taking a later train, so he went on the train then ready, and seated himself in the car. When the conductor came around for tickets, he presented to him his shipping contract, but it not being stamped, etc., as required, the conductor refused to receive it, and informed him that he must pay his fare, which the plaintiff did giving the conductor a $20 gold piece, from which the amount of his fare from Portland to Grant's was to be taken. At this time, according to his testimony, he asked the conductor if he would be allowed to stop over at The Dalles, and go to Grant's on the next train, to which the conductor replied that he could do so, and that it would be all right. The conductor, not being able to make the necessary change for the fare, after an absence of about 20 minutes, during which time he was engaged in taking up tickets, etc., returned with the change and a drawback check, which he delivered to the plaintiff. Upon the back of the drawback check was a receipt for the fare, but the check itself had printed upon it in large and legible words, "Good for this day and train only." The plaintiff does not seem to have given any attention to the check, or what was written or printed upon it, but, acting upon the assurance of the conductor that he would be permitted to stop over at The Dalles, he did so, and, after remaining some hours, he took another train for the completion of his journey to Grant's. A short time after he entered upon this train the conductor called upon him for his ticket, and he presented the drawback check and the receipt, which the conductor refused to accept, stating that it did not entitle him to ride upon that train, when he then explained to him the circumstances under which it was delivered to him by the other conductor, and claimed the right to continue his ride to Grant's station. The conductor told him that he was required by the rules and regulations of the company to collect fare, or a ticket entitling the passenger to ride, and that none of the papers which he had presented entitled him to ride on that train, and that, unless he paid his fare, his duty would require him to expel him from the cars. After waiting until the train had proceeded several miles and arrived at a station, the conductor informed him that, unless he paid his fare, he would be under the necessity of requiring him to leave the train. The plaintiff pointedly refused to leave or to pay his fare, when the conductor, finding he would do neither one nor the other, with the aid of the brakeman undertook to expel him from the car, which the plaintiff resisted with all his force, and manifested a disposition to fight, but when finally expelled from the train he tendered his fare, was received again on the train, and carried to his destination. His own evidence concedes that the duty of expelling was an unpleasant task to the conductor, and performed under the circumstances indicated. From this statement of the facts it is apparent that the plaintiff was without any proper evidence or token of his right to transportation on that train, other than his statements to the second conductor of the oral representations of the other conductor of such permission. Although a disputed fact at the trial, the conductor denying he ever made such representations or gave such permission, we shall assume its verity after verdict. Under such circumstances, was it the duty of the plaintiff, when notified by the conductor that he could not receive the drawback check, to pay his fare under protest, or leave the train without rendering it necessary for the conductor to resort to force to secure his removal. The drift of the defendant's contention is that it is a recognized right of every railroad company to make such reasonable rules and regulations for the conduct of its business as may be necessary, and that it is a reasonable exercise of this right to require that every passenger shall, when called upon by the conductor, present a ticket conforming to its reasonable rules and regulations, or, if he is unable so to do, that he shall pay his fare, but if he cannot produce the required ticket, and refuses to pay his fare, that he may be lawfully ejected from the train In this view, as between the plaintiff and the conductor of the train from which he was expelled, unless he could produce the required ticket as evidence of his right to ride on that train, or in default thereof to pay his fare, the conductor would not be authorized to allow him to proceed to his destination on such train on his statement of the oral representations of the other conductor, inconsistent with the face of his ticket, and contrary to the rules and regulations of the company. To that conductor the ticket which the plaintiff produced was to be taken as conclusive evidence of his right to travel on that train, and, it failing, the conductor could not receive the statements of the plaintiff contradicting its plain terms, and allow him to retain his seat. Upon this assumption, when the plaintiff was unable to produce the required ticket evidencing his right to travel on that train, and refused to pay his fare or to leave the train when requested, stopped at a proper place, the conductor was authorized lawfully to expel him from the train, and the defendant is not responsible in damages for injuries incurred in resistance to such expulsion. Summed up, then, the considerations in support of the principle invoked are: That as between the conductor and passenger, the right of the latter to ride must be evidenced by some proper token or ticket; that neither the time nor the occasion is suitable for an investigation, whether of explanation, or representations of another conductor in conflict with the terms of the ticket, and contrary to the rules of the company; that it is better, under such circumstances, that the passenger comply if he is unable to produce the required ticket, and pay his fare, or leave the train quietly and suffer the temporary inconvenience which results, than that the business of the road be interrupted to the annoyance of the traveling public; that such a course would avoid all liability to unseemly struggles, often occurring in the presence of women and children, and prevent breaches of the peace, and at the same time secure the passenger ample redress in the remedies which the law provides. The application of this principle includes a variety of cases, as where the passenger is unable to produce any token or ticket as evidence of his right to ride, or the ticket which he does produce is irregular or defective, due to the fault or negligence of the agents of the company.

In Frederick v. Railroad Co., 37 Mich. 342, the plaintiff held an insufficient ticket, caused by the fault of the company's agent in delivering to him a ticket to the wrong station. He asked and paid for a ticket to a given station, and received what he supposed was such ticket, but which on its face was only good to a point short of his destination. In passing upon this question the court observed: "How, then, is the conductor to ascertain the contract entered into between the passenger and the railroad company, where a ticket is purchased and presented to him? Practically there are but two ways,--one, the evidence offered him by the ticket; the other, the statements of the passenger contradicted by his ticket. Which should govern? In judicial investigations we appreciate the necessity of an obligation of some kind, and the benefit of a cross-examination. At common law, parties interested were not competent witnesses, and even under our statutes the witness is not permitted, in certain cases, to testify as to facts which, if true, were equally within the knowledge of the opposite party, and cannot be procured. Yet here would be an investigation as to the terms of the contract where no such safeguards could be thrown around it and where the conductor, at his peril, would have to accept of the statement of the interested party. I doubt the practical workings of such a method, except for the...