24 Conn. 249 | Conn. | 1855
Lead Opinion
The defendants were a railroad corporation, running regular trains of cars on their road between the cities of Norwich and New London, and transporting passengers in said cars, as a part of their business.
They had established, and given public notice of “ a rule or regulation,” that the fare for passengers, in their cars from Norwich to New London, should be fifty cents, if it was paid and a ticket procured by the passenger before taking his ..seat in the cars, otherwise it should be fifty-five cents.
The plaintiff took a seat in the car, without a ticket, and when called upon by the conductor of the train, offered to pay fifty cents for his passage to New London, but refused to pay any more. And upon the trial, he claimed to have proved that he went to the office of the company, where tickets were usually sold, at a reasonable time before the starting of the train, to procure a ticket, which he was ready to pay for; that he found the office closed, and that there was no person at the office of whom a ticket could be obtained, at that time, or afterward, until after the departure of the train, and that he informed the conductor of these facts at the time his fare was demanded. And the court charged the jury in substance, that, if the facts were as claimed by the plaintiff, he had a right to retain his seat; the conductor had no right forcibly to remove-him from the car, and the defendants were liable to the plaintiff for the personal injury to him, occasioned by such removal.
The first enquiry arises upon this part of the charge.
The defendants were common carriers of passengers, and as such, they were bound (except in certain peculiar cases, which need not here be specified) to carry all who applied for transportation, upon payment of their reasonable compensation; and they had the right to prescribe reasonable rules, and regulations, regarding the performance of their
In this case, it was agreed on the trial, that the regulation of the company, regarding their fare as above-mentioned, was a reasonable and legal one. It was, probably, established for the protection of the company against the errors, and possible frauds, of the conductors of its trains, while, at the same time, it would facilitate the performance of the conductors’ duties.
It was notified to the public, in order -that passengers might be induced, and prepared, to conform to it. As a rule for the government of the conductor, it was imperative. It made it his duty to account, at the treasury of the company, for the fare of every passenger, by the delivery there, of a ticket, or of fifty-five cents in money. It gave him no discretionary power.
It is of no importance in this enquiry, whether the rule was wise or efficacious, for the purpose for which it was established, or not; it is enough, that it was reasonable and legal; one which the company had a right to make, and to enforce, and the only legitimate enquiry would seem to be, what was the' rule, and what its import and effect. The passenger’s right to his passage must depend, either upon the common law obligation of the carrier to carry all who apply, or upon some special contract of the carrier. The common law obligation attaches only upon the payment of, or readiness to pay, the carrier’s reasonable compensation, and compliance with the carrier’s reasonable regulations.
It is said that the admitted reasonableness of the regulation mentioned, is applicable to that regulation only as a whole, and not to its distinct alternatives, independent of each other. I think, that by fair construction of the motion, it appears that fifty-five cents, payable to the conductor in the car, was a reasonable price for the passage. It is agreed, that that sum was refused by the plaintiff; the common law obligation to carry the plaintiff, then, had not attached upon
That the meaning and import of the regulation were what the plaintiff claims, may be conceded ; but did it, like a valid contract, impose upon the defendants a legal obligation, from which they could not recede at pleasure? Was the rule thus promulgated, and thus construed, a contract ?
I think it was in the nature of a mercantile advertisement, rather than a contract; proffered on one side,to be closed by a mere acceptance on the other. Such advertisements, it is believed, are now considered, or treated, as proposed contracts, to the performance of which, the advertisers may be held by a mere acceptance, without further negotiation. For example, could a merchant advertising goods for sale, at a price specified, be subjected, in an action at law, if he should raise the price, or withdraw the goods altogether from the market?
But suppose that published rule was a proffered contract, which might be closed by a mere acceptance; like all other proposals, until accepted, it might be withdrawn at pleasure.
It has been already remarked, that the defendants’ obligation to furnish a ticket, and the right of the plaintiff to obtain one, on request, if such right and obligation existed, must have had their foundation entirely in the supposed special
His claim is, that having, on his part, done everything required by the defendants’ regulation, to entitle himself to a ticket, and having failed to obtain one, through the fault of the defendants, he has, as against them, acquired the same rights, as if his efforts to obtain such ticket had been successful. However true the legal principle involved in this claim may be, that principle has no application in the case before us. The published regulation being a mere proposal, until accepted, imposed upon the defendants no legal duty; the minds of the parties not having met, no contract between them had been made. Before the plaintiff’s appearance, the agent had closed the office, and retired, and so the proposal was withdrawn, and withdrawn before acceptance. An intention, or a readiness, to accept an offer, is a very different thing from an actual acceptance. True, according to the plaintiff’s claim, his failure, by a timely acceptance of the offer, to make a binding contract, was chargeable entirely to the defendants, but still there was no actual acceptance of the proposal, no uniting of the minds of the parties, and no contract made.
Again. There can be no breach of a contract, until the contract itself has been first completed by the meeting of the
By the very terms of the original regulation, upon one alternative of which the plaintiff relies, if a ticket was not paid for and procured by the passenger, before entering the car, his fare should be fifty-five cents. When the plaintiff entered the car, without his ticket, he knew the terms on which the defendants proposed to carry him ; he made no objection to those terms, until after the train had started, and so entering the car and proceeding on the way, he must be
Upon the whole, I think that the plaintiff refusing to pay the fifty-five cents, the conductor had a right to remove him from the car, using no unnecessary force for that purpose, and that for such removal, the defendants ought not to be subjected in this action, and, consequently, that the charge, on this point, was wrong.
Upon the second point, the legal principles, enunciated in the charge, are in my judgment correct. If the plaintiff was wrongfully put out of the car, he had a right to re-enter, and if in his endeavor to do so, he received an injury, in the manner stated in the motion, he was entitled to recover for such injury, unless there was, on his part, a want of reasonable care and prudence which produced, or essentially contributed to produce, said injury. But if the plaintiff’s removal from the car was rightful, or if, in his attempting to re-enter, there was on his part a want of reasonable care, or prudence, which’ produced, or contributed essentially to produce, said injury, then he was not entitled to recover for it.
The plaintiff claimed that, for the purpose of removing him from the car, and keeping him off, the conductor called to his assistance a servant of the defendants; that thereupon a struggle ensued between the plaintiff, on the one side, and the conductor and his assistant on the other, and that before the termination of the struggle, and immediately upon the plaintiff’s coming from the car to the ground, the servant intentionally kicked him in the face. The defendants claimed that such kick, if given, was without the knowledge, and without any particular, or express, direction of the conductor, or any other officer, or agent of
The court charged the jury that, upon the facts, as claimed by the plaintiff, the defendants were liable for the kick, and omitted to charge, as requested by the defendants.
The jury should have been instructed in substance, that, if the kick was given by the servant, for the purpose of keeping the plaintiff off from the car, and was, under the circumstances, but the exercise of necessary and proper force for that' purpose, the defendants were responsible for it, provided the plaintiff had been wrongfully put out, and had a right to re-enter; but, if he had no right to re-enter, then the kick was justifiable. But, if such kick was not necessary, and proper, for the purpose of keeping the plaintiff off, and was by the servant intentionally given, without the knowledge or direction of the conductor, or any other officer or agent of the company, the defendants were not liable for it.
The liability of the master for acts of his servant seems to depend upon the question, whether the servant, at the time, and in the particular in question, was acting under, and in execution of, authority from the master. Salk., 282. 20 Conn. R., 284.
In this case, the servant was called to assist the conductor, and may be considered as having a general order, or command, to keep the plaintiff off; but that order authorized the employment of none but usual, and legal, means for the purpose, and the intentional employment of such an unusual, unnecessary, and unjustifiable measure, as a kick in the face, could not have been contemplated by the conductor, and, in the absence of proof, the law will not deem it authorized by him.
■ In Noyes’ Max., ch. 44, it is said, “ If I command my servant to distrain, and he ride on the distress, my servant shall be punished, not I.”
This authority is cited with approbation by Lord Ellenbor
But whether the defendants would be liable, or not, in a proper form of action, it is quite clear they are not liable in trespass. In order to render the master liable for the servant’s act, in trespass, it must be shown that the act was done in the execution of the master’s order, or with his assent,' or approbation.
And where it is shown that the act was done without his knowledge, or direction, his silence can not operate against him. 20 Conn. R, 284. 2 Met., 606.
But this question has been so recently under examination in this court, in the case of The Thames Steamboat Company v. The Housatonic Railroad Company, ante p. 40, decided at the last term, and has been so thoroughly discussed by the judge, who gave the opinion of the court in that case, that the further consideration of it seems now unnecessary.
I advise that a new trial be granted.
In this opinion, Waite, Ch. J., concurred.
Concurrence Opinion
concurred in advising a new trial, but not for the reasons assigned by the majority of the court.
He thought the only error of the court below, consisted in so putting the case to the jury, as to have it turn upon whether the plaintiff applied for a ticket at a reasonable time before the train left, and was unable to obtain one. In his opinion, the office for the sale of tickets might have been open the greater part of the day, previously to the leaving of the train, and yet been closed a few minutes before, in con
Storrs, J., concurred with Hinman, J., in his dissent from the views of Judges Waite and Sanford. He was also of opinion that, as the case was presented on the trial, the question, on which it was put to the jury, as to the right of the defendants to eject the plaintiff from their cars, was substantially, although not in terms, the same as that on which Judge Hinman thought the verdict ought to depend; and therefore that a new trial should not, on that ground, be advised.
His views on the case will be given in a subsequent part of the volume.
New trial to be granted.
