Southern Pac. Co. v. Hamilton

• Decision Date: 30 January 1893
• Docket Number: 48.
• Citation: 54 F. 468
• Parties: SOUTHERN PAC. CO. v. HAMILTON.
• Court: U.S. Court of Appeals — Ninth Circuit

54 F. 468

SOUTHERN PAC. CO. v. HAMILTON.

No. 48.

United States Court of Appeals, Ninth Circuit.

January 30, 1893

Baker Wines & Dorsey, for plaintiff in error.

J. H Macmillan, (William Woodburn on the brief,) for defendant in error.

Before McKENNA and GILBERT, Circuit Judges, and KNOWLES, District judge.

McKENNA Circuit Judge.

The defendant in error, Hamilton, purchased in Denver, of a broker, a first-class, unlimited ticket for San Diego, via San Francisco. The broker was not an agent of either of the companies over whose lines the ticket purported to be good for a passage. It was primarily issued by the Union Pacific Railroad Company, and was what is called a 'Contract Ticket,' which is explained as one issued for a continuous passage over two or more roads, as distinguished from a ticket issued by one road, and confined to it, the former only being good in the hands of the original holder when attested by his signature, and the latter good in the hands of any holder, being transferable. There was a distinction made in the case between limited and unlimited tickets; the distinction, however, being one only of time the latter being good until used. The ticket purchased by Hamilton had printed on it the following conditions, among others:

'(3) * * * If presented by any person other than the original holder, this ticket is void, and conductor will take up, and collect full fare. * * * (6) The holder will write his or her signature when required by conductors or agents.'

Immediately above the space marked for the signature of the holder are the following words:

'I hereby agree to all the conditions of the above contract.'

The ticket was in the form adopted by the companies, and the enforcement of the condition requiring the signature of the holder by conductors or agents was necessary to enable the company who accepted it, if other than the issuing company, to collect its share of passage money from the issuing company.

In regard to these conditions the court below held, and instructed the jury:

'That railroad companies have the right to adopt and enforce reasonable rules and regulations for the safe, convenient, and orderly conduct of their business. * * * If the holder of a valid railroad ticket refuses to comply with any reasonable rule or regulation, * * * when requested so to do by the agents or conductors of such company, the company has the right to eject him from the cars, using only such moderate force as may be necessary to secure his removal. You are instructed that the defendant, the Southern Pacific Company, and the Union Pacific Company, had the right to adopt the form of ticket to be sold and used over each other's lines, and that in selling the ticket in question the Union Pacific Company acted as special agent of the defendant, and the defendant was not bound to honor the ticket unless it was in the form, and issued in the manner, agreed upon by both parties, or by the defendant. In purchasing a ticket from a person who was not an agent of the railroad company, the plaintiff was bound to examine the ticket, to see if it was genuine, and to read the conditions printed thereon, and would be bound by the reasonable conditions and rules so printed. The fact that the ticket was purchased from a ticket broker, who was not authorized by the railroad company (defendant) to sell the same, does not confer upon the purchaser any greater right or privilege than if he had purchased a ticket from a regular or special agent of the railroad company.'

And, construing the ticket, the court further said:

'So far as this ticket is concerned, it is a first-class, unlimited ticket, subject to the conditions which are printed on its face. The third,-- and this is most material: 'If not so used, and if more than one date is canceled, or if presented by any person other than the original holder, this ticket is void, and conductor will take up and collect full fare.' That applies to the ticket in either form. If the ticket was used as a second-class or a limited ticket, and if more than one date is canceled, it would apply to certain conditions of the ticket; or, 'if presented by any person other than the original holder, this ticket is void, and conductor will take up and collect full fare.' That applies to the whole ticket. * * * The next condition is: 'The holder will write his or her signature when required by conductor or agent.' Then there is another clause which has not been referred to, and has no bearing. This ticket, you will notice, bears upon its face, first, a blank space, and then the word, 'Signature,' and it is signed by the agent of the Union Pacific Company. I instruct you that the testimony in this case is that that form of ticket was adopted by the two companies, and that they were required, in order to make that ticket good over other lines than their own,-- the party selling it must require the purchaser to attach his signature. And, if he accepted the ticket without signing it, he, nevertheless, would be bound by that rule when he reached the line of the defendant company. It necessarily follows from what I have already said that the ticket which was presented by Hamilton at Ogden was not such a ticket as defendant, the Southern Pacific Company, was bound to honor. And if you believe that the agents of the company, at the time he went upon their train, notified him that the ticket, in that form, was not such as they were entitled to honor, and that unless he signed his name he would not be allowed to travel upon it, or, in other words, that he would have trouble with the conductor, the conductor had the right to request him, on the presentation of that ticket, to sign his name. That was the only objection made to it. If he had signed his name, the testimony is that he would have been allowed to travel upon that ticket as a first-class, unlimited ticket. If he refused to sign his name, pay his fare, or leave the train, then the conductors or agents of the defendant had the right to use as much force as was necessary, and no more, in order to remove him from the train.'

These instructions state the law clearly and correctly, and the plaintiff in error finds no fault with them, but urges that the court erred in refusing, at the close of the plaintiff's testimony, to instruct the jury on its motion to find a verdict for it, and again erred by submitted to the jury, as a mixed question of law and fact, the agency and circumstances of the plaintiff's removal from the train.

The first error claimed, however, was waived by defendant, by introducing testimony. To have availed itself of it, it should have rested its case. Railroad Co. v. Hawthorne, 144 U.S. 202, 12 S.Ct. 591, and cases cited.

To pass on to the second claim of error, needs a consideration of the testimony. The plaintiff was removed from the train at a town called Lovelocks, in the state of Nevada, by a constable acting on complaint of an agent of defendant; and if there is any evidence that the officer acted as agent of the company, in the sense stated in the instruction, the instruction must be sustained. The rule in an appellate court is stated by Justice Lamar in Insurance Co. v. Ward, 140 U.S. 91, 11 S.Ct. 710: 'We have no concern' the learned justice said, 'with questions of fact, or the weight to be given to the evidence which was properly admitted,' citing a number of cases. But in Pleasants v. Fant, 22 Wall. 120, et seq. the court say, (Justice Miller rendering the decision:)

'That in every case, before the evidence is left to the jury, there is a preliminary question for the judge, not whether there is literally no evidence, but whether there is any, upon which a jury can properly proceed to find a verdict for the party producing it, upon whom the onus of proof is imposed. * * * It is the duty of a court, in its relation to the jury, to protect parties from unjust verdicts, arising from ignorance of the rules of law and of evidence, from impulse of passion or prejudice, or from any...