Roberts v. Smith

Decision Date16 April 1898
Docket NumberCivil 580
Citation52 P. 1120,5 Ariz. 368
PartiesJOSEPH I. ROBERTS, Plaintiff and Plaintiff in Error, v. C. W. SMITH, as Receiver of the Atlantic and Pacific Railroad Company, Defendant and Defendant in Error
CourtArizona Supreme Court

WRIT OF ERROR from a judgment of the District Court of the Fourth Judicial District in and for the County of Coconino. Owen T Rouse, Judge. Affirmed.

The facts are stated in the opinion.

Morrison & Morrison, and E. M. Sanford, for Plaintiff in Error.

The existence of the relation of passenger and carrier is only to be implied from such circumstances as will warrant an implication that the one has offered himself to be carried and the other has accepted the offer. Webster v Fitchburg R.R. Co., 58 Am. & Eng. R. R. Cases, 1; Webster v. Fitchburg, 161 Mass. 298, 37 N.E. 165, 24 L.R.A. 521; Dodge v. Boston etc. S.S. Co., 148 Mass. 207, 19 N.E. 373, 2 L.R.A. 83.

Where one, although he has paid no fare, is on a car with the knowledge and permission of the person in charge thereof, he is a passenger, and is entitled to the same care and protection as if he had paid fare. Merchlhausen v. St Louis R.R. Co., 28 Am. & Eng. R. R. Cases, 157; State v. Hurlstone, 92 Mo. 332, 5 S.W. 38; Sherman v. Hannibal, 72 Mo. 65, 37 Am. Rep. 423.

Every one riding in a railroad car is presumed to be there lawfully as a passenger, having paid, or being liable to pay when called upon to pay his fare. Gillingham v. Ohio River R.R. Co., 51 Am. & Eng. R.R. Cases, 222; Gillingham v. Ohio River R.R. Co., 35 W.Va. 588, 29 Am. St. Rep 827, 14 S.E. 243, 14 L.R.A. 798; Young v. Commissioners of Mahoning County, 53 F. 897.

A passenger having a ticket for a passage upon a railroad who boards a freight-train which does not carry passengers, believing the ticket good on that train, is to be treated as a passenger, and not as a trespasser. Boggess v. Chesapeake etc. R.R. Co., 37 W.Va. 297, 16 S.E. 525, 23 L.R.A. 777.

When it is customary for persons to enter cars without a ticket and to pay on the train, if a passenger enters and takes a seat, and the conductor makes an assault on him, the company is liable. Illinois Central R.R. Co. v. Sheehan, 29 Ill.App. 90.

If a carrier knowing there is good ground for refusing to carry a passenger, nevertheless receives him, he cannot afterward eject him for the same cause. Person v. Duane, 4 Wall. 605; Tarbell v. Railroad Co., 35 Cal. 616.

Extra train not carrying passengers. Even though forbidden by the rules, if the person acted in good faith, he will be entitled to all the rights of a passenger. Everett v. Oregon etc. R.R. Co., 9 Utah, 340, 34 P. 289.

A passenger is not supposed to know of a rule. He may know that passengers are carried and not know under what circumstances or conditions, and until so informed is not a trespasser. Pilcher v. Railroad Co., 38 Kan. 516, 5 Am. St. Rep. 770, 16 P. 945; Lucas v. Railroad Co., 33 Wis. 64; Durer v. Railroad Co., 58 Me. 188; Arnold v. Railroad Co., 115 Pa. St. 135, 2 Am. St. Rep. 542, 8 A. 213; see, also, note in 8 A. 216.

Stopping a train at a station is an invitation to the public to take passage. Railroad Co. v. Werle, 21 Am. & Eng. R. R. Cases, 429; Werle v. Long Island R.R. Co., 98 N.Y. 650.

Conceding that defendant had a right to eject him from the train, it had no right to do it elsewhere than at a station. Maples v. Railroad Co., 33 Conn. 561; Hardenberg v. Railroad Co., 39 Minn. 3, 12 Am. St. Rep. 610, 38 N.W. 625.

When the passenger entered the train in good faith the company could not eject him elsewhere than at the station. Galena v. Hot Springs R.R. Co., 13 F. 119; Pearson v. Duene, 4 Wall. 695.

If a passenger takes a wrong train, he is a passenger on that train. Railroad Co. v. Powell, 4 Ind. 37.

If a passenger takes a wrong train through the fault of the servants of the railroad company, the relation of passenger and carrier exists between him and the company. Railroad Co. v. Gilbert, 64 Tex. 539; Railroad Co. v. Smith, 1 S.W. 565.

Where a person is invited to enter a car the relation of carrier and passenger is created. Railroad Co. v. Martin, 11 Ill.App. 386.

If a passenger is permitted to take a train at a place which is not a station, he is not a trespasser. Dewire v. Boston etc. R.R. Co., 148 Mass. 343, 19 N.E. 523, 2 L.R.A. 166.

It was the duty of the conductor to notify the plaintiff before the train started. Burke v. Railroad Co., 51 Mo.App. 491; Hobbs v. Railroad Co., 49 Ark. 357, 5 S.W. 586.

The whole power and authority of a corporation pro hac vice is vested in conductors (as to their relation to passengers). Randolph v. Railroad Co., 18 Mo.App. 609; Bass v. Railroad Co., 36 Wis. 450, 17 Am. Rep. 495.

Where there is no ticket-agent, and he "applies for passage or enters their passenger-trains without having such ticket, but offers to pay the usual fare, the company cannot lawfully eject or reject him." People v. Railroad Co., 16 Or. 26, 8 Am. Rep. 289, 19 P. 107; Phettipone v. Railroad Co., 84 Wis. 412, 54 N.W. 1092.

If the conveyance is one which by contract the passenger has no right to take, the company's duty is to inform him and put him off at a proper place. Railroad Co. v. Rosensweig, 26 Am. & Eng. R.R. Cases, 498; Railroad Co. v. Schwindling, 101 Pa. St. 258, 47 Am. Rep. 706.

The illegal ejection of a passenger entitled by contract to be carried over a railway is itself an act for which damages are recoverable. The measure is for the jury. Railroad Co. v. Homer, 27 Am. & Eng. R.R. Cases, 186.

Plaintiff is entitled to recover damages, and also smart money, because the general superintendent participated in the wanton and oppressive acts. Railroad Co. v. Prentice, 15 S.Ct. 265; Denver etc. R.R. Co. v. Harris, 122 U.S. 597, 30 L.Ed. 1146, 7 S.Ct. 1286.

C. N. Sterry, for Defendant in Error.

The plaintiff affirmatively proved by his own evidence that the train which he got upon was not a train which under the rules and regulations of the railroad company carried passengers. Therefore, the plaintiff had no right to go upon such train for the purpose of being carried, and the railroad company had a perfect right to put him off the train after he had gotten upon it.

It is a rule that a person about to become a passenger to be transported by a railroad company upon its line of road must at his own peril ascertain the rules and regulations of the company concerning the trains on which he may ride from the point he desires to take passage to the station at which he wishes to leave the train. Chicago etc. R.R. Co. v. Randolph, 53 Ill. 510; Illinois Cent. R.R. Co. v. Nelson, 59 Ill. 110; Hobbs v. Railroad Co., 49 Ark. 357, 5 S.W. 586, 34 Am. & Eng. R.R. Cases, 268; Duling v. Railroad Co., 66 Md. 120, 6 A. 593; Railroad Co. v. Bartram, 11 Ohio St. 463; Chicago etc. R.R. Co. v. Bills, 104 Ind. 13, 3 N.E. 611; Lake Erie etc. R.R. Co. v. Lucas, 18 Ind.App. 239, 47 N.E. 842; McRae v. Railroad Co., 88 N.C. 526, 43 Am. Rep. 745; Railroad Co. v. Cameron, 66 F. 709; Texas etc. R.R. Co. v. Ludlam, 57 F. 481, 6 U.S.C.C. App. 455; Plott v. Railroad Co., 63 Wis. 511, 23 N.W. 415; Deitrich v. Railroad Co., 71 Pa. St. 432; Atchison-Topeka Railroad Co. v. Gants, 38 Kan. 608, 17 P. 54.

At common law, and in the absence of statute, one wrongfully on a train may be expelled at any point not dangerous, and the conductor is not required to wait until a station is reached. Louisville etc. R.R. Co. v. Johnson, 92 Ala. 204, 25 Am. St. Rep. 35, 9 So. 269; Everett v. Railroad Co., 69 Iowa 15, 58 Am. Rep. 207, 28 N.W. 410; Brown v. Railroad Co., 51 Iowa 235, 1 N.W. 487; Railroad Co. v. Hinsdale, 38 Kan. 507, 16 P. 937; McClure v. Railroad Co., 34 Md. 532, 6 Am. Rep. 345; Railroad Co. v. Miller, 19 Mich. 305; Wyman v. Railroad Co., 34 Minn. 210, 25 N.W. 349; Railroad Co. v. Skillman, 39 Ohio St. 444; Moore v. Railroad Co., 38 S.C. 1, 16 S.E. 781.



-- Plaintiff in error instituted an action in the district court of Coconino County against the defendant in error to recover damages for ejecting him from a train on the fourteenth day of July, 1894, which train was operated by the general superintendent and the employees of the Atlantic and Pacific Railroad, alleging that he boarded the train at the town of Challender, on the line of said railroad in Coconino County, as a passenger, with the intention of riding to the town of Williams on said line of railroad. The case was tried before a jury, and after the plaintiff had introduced all his evidence the court, on motion of the defendant, instructed the jury to bring in a verdict for the defendant, which was accordingly done, and judgment was rendered thereon in favor of the defendant; that plaintiff take nothing by his complaint; that defendant go hence without day, and recover from plaintiff his costs. From which judgment and ruling of the court on the trial of this cause plaintiff takes his writ of error.

The transcript contains what purports to be all the material evidence in the case, and we shall treat it as all of the evidence; otherwise, plaintiff in error could not be heard to complain about the instructions of the court to the jury. If all the evidence be not before the court for review, the presumption would be in favor of the regularity of the court in giving the instructions to the jury to bring in a verdict for the defendant. The evidence shows, however, that on the fourteenth day of July, 1894, plaintiff was at Challender, in Coconino County, Arizona, for the purpose of buying stock to be used in his butcher business; that he lived at Prescott Arizona, and was desirous of going from Challender to Williams, Arizona, a station just west of Challender; that Challender is a small way-station on the line of the road; that the...

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