St. Louis & San Francisco Railroad Co. v. Blythe
| Decision Date | 07 March 1910 |
| Citation | 126 S.W. 386,94 Ark. 153 |
| Parties | ST. LOUIS & SAN FRANCISCO RAILROAD COMPANY v. BLYTHE |
| Court | Arkansas Supreme Court |
Appeal from Crittenden Cricuit Court; Frank Smith, Judge; reversed.
STATEMENT BY THE COURT.
Alice Blythe and A. K. Blythe instituted separate suits in the Crittenden Circuit Court against the St. Louis & San Francisco Railroad Company to recover damages for their alleged ejection from one of its passenger trains.
By consent of parties, the cases were ordered consolidated and were tried together. The defendant has appealed to this court from the judgment rendered against it.
The facts necessary to a determination of the issues involved briefly stated, are as follows: On or about October 1, 1908 A. K. Blythe and Alice Blythe, his wife, went to the station of appellant at Big Creek, Ark., for the purpose of taking passage on one of its passenger trains. The ticket agent was also baggage agent, express agent and mail clerk. Appellees wished to go from Big Creek to Marked Tree. Big Creek is a junction where the main line of appellant's railroad is intersected by its branch line to St. Louis. A large number of passenger trains arrive and depart from this junction daily. Appellees testified that they applied at a reasonable time at the ticket office in the station to purchase tickets and that the agent was not there to serve them. They then started to get on the train without tickets. The brakeman demanded their tickets. They explained to him that they were unable to procure tickets because there was no one in the ticket office to sell them. They offered to pay their fares to the brakeman before entering the car. The brakeman informed them that they could not enter without tickets. They again informed him why they had not procured tickets, and the brakeman again told them they could not enter the car without tickets. Mrs. Blythe was on the second step, and the brakeman jerked her back, and said: "You can't go without a ticket," and knocked her back against her husband. They remained in Big Creek from that time, about 5:30 o'clock P. M. to 9 o'clock, P. M., when they took another train for home.
On behalf of appellant, the brakeman testified that he did not use any violence or rough language toward appellees. He said that he told the parties that a rule of the company required passengers to have tickets before entering the cars, and that it was his duty to enforce the rule.
The ticket agent testified that he was in his office before the departure of the train for the purpose of selling tickets and that he did sell tickets to other persons for passage on the train in question. He also testified that the railroad company had a rule in force at that time requiring passengers to purchase tickets before boarding the train, and that notices to that effect were posted around the station. He stated the rule had been in force for about two months.
Judgment reversed and cause remanded.
W. F. Evans and W. J. Orr, for appellant.
1. The relation of passenger and carrier is contractual, and before it is established there must be both an offer and acceptance as passenger. This relation, therefore, did not exist at the time appellees presented themselves at the entrance leading to the coach and were told that the rules of the company required them to provide themselves with tickets before they would be allowed to board the cars. 46 So. 776; 60 S.E. 1079; 84 N.E. 464; Id. 844; 105 S.W. 124; Moore on Carriers, 545, § 4; 43 So. 98. The statute, Kirby's Dig., § 6613, plainly refers to actual passengers, and has no application in a case where parties intend to become passengers. See also 39 S.W. 358; 67 Ark. 53; 58 S.E. 491; 104 S.W. 280.
2. A railway company has the right to make a rule requiring persons who intend to become passengers to purchase tickets before entering its trains; and if one who has notice of such rule, and is afforded reasonable opportunity to purchase a ticket, offers to enter a train without purchasing a ticket, he is not a passenger, nor entitled to be treated as such. 65 Ark. 225; 70 Ark. 114; 26 Am. & Eng. Ry. Cases, 234; 13 Id. 49; 3 Id. 340.
J. F. Gautney, for appellee.
1. The contention that one who, being ready, able and willing to pay his fare, offers himself as a passenger, does not become a passenger until he is accepted as such by the carrier, has been held to be the law in some States; but in this State the statute fixes a different rule. Kirby's Dig., §§ 6592, 6593, 6591, 6613. The relation of passenger and carrier did exist, when appellees presented themselves at the entrance of appellant's passenger coach, ready and willing to pay their fare. 67 Ark. 47, 52-4.
2. The rule requiring all persons to purchase tickets before entering appellant's trains is in contravention of § 6592, Kirby's Digest. But, even if it should be held to be a reasonable rule, notwithstanding the statutes, no reasonable opportunity was afforded in this case to procure tickets.
HART, J., (after stating the facts).
Counsel for appellant rely for a reversal upon the action of the court in refusing to give to the jury the following instruction:
It is undoubtedly competent for a railroad company, as a means of protection against imposition and to facilitate the transaction of its business, to require passengers to procure tickest before entering the car, and where this requirement is duly made known and reasonable opportunities are...
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