58 N.J.L. 1 | N.J. | 1895
The opinion of the court was delivered by
This suit is grounded on an expulsion from the cars of the plaintiff in error.
The gravamen of the case was thus constituted: The plaintiff took passage in one of the cars of the plaintiff in error, intending to go to the vicinity of Park street. She purchased and paid for a ticket that entitled her to go to that destination. At a certain point on its line the company was changing its tracks, so that the plaintiff could not complete her trip without changing cars. It appeared from the evidence that this condition of things had existed for some time, and that it had been the established practice of the road to permit the passengers to pass beyond the obstruction, into a second car, without any transfer tickets. In the belief that such regulation was still in force, the plaintiff made the change. After she had gone a short distance the conductor of this second car demanded her fare, and, on her refusal to pay and having no transfer ticket, the car was stopped and she was ordered to leave it. This order she obeyed, and this expulsion is the ground of action. It was also in proof that, on the day in question or the day preceding it, the regulations of the company had been changed so that passengers being transferred at this point were to be given transfer tickets showing their right to a seat in the car to which they were transferred. The plaintiff had no knowledge of this alteration in the methods of the company.
Upon this subject the Circuit judge, in the course of his accurate and lucid charge to the jury thus propounded the rule of law pertinent to it. After stating that the company had the right to establish reasonable regulations for the con
That this judicial direction was legally correct in all respects seems to us indubitable. The exception taken to it on the part of the defence is devoid of all substance.
Neither with respect to the second objection touching .the form of the action do we find any difficulty. That objection is that the procedure should have been in the form of an action .of assumpsit, and not as it is, in tort. The rationale of the exception was that if the defendant was in fault as insisted on, such fault amounted simply to a breach of its contract to carry the passenger to her destination. But it is obvious that there was in the transaction proved an element of misconduct that does not belong to the non-performance. It clearly presents a case not merely, on the part of the company, of nonfeasance but of malfeasance. The plaintiff, by force of her contract, was in the lawful possession of a seat in the car in question, and she plainly was compelled to give up that right by the unlawful act of the servant of the defendant. The car was stopped by the conductor, and the passenger was ordered to leave it, and under such circum
In the opinion of the court the act of the conductor, on the occasion referred to, was tortious, and that the action is properly grounded.
The other objections have been examined and are overruled. Let the judgment be affirmed.