| Ill. | Apr 15, 1867
delivered the opinion of the Court:
This was an action of trespass, brought by Whittemore against the Illinois Central Railroad company and H. W. Cole, a conductor in the service of the company, for wrongfully expelling the plaintiff from a train. It appears, the plaintiff had taken passage from Decatur to El Paso, and had procured the necessary ticket. After the train passed Kappa, the station preceding El Paso, the conductor demanded the plaintiff’s ticket, which the latter refused to surrender without a check. This the conductor refused to give, and after some controversy with the plaintiff, stopped the train and with the aid of a brakeman expelled the plaintiff. There is considerable evidence in the record given for the purpose of showing, that, even admitting the right of the defendants to expel the plaintiff, an unnecessary and wanton degree of violence was used, from which the plaintiff received a permanent and severe injury. As, however, the case must be submitted to another jury, we forbear from any comments on this portion of it. The jury gave the plaintiff a verdict for three thousand, one hundred and twenty-five dollars, for which the court rendered judgment, and the defendants appealed.
In sustaining a demurrer to the fourth plea, and in giving the instructions, the Circuit Court held, that, although the rules of. the road required the conductor to take up the plaintiff’s ticket, and notwithstanding he may have refused to surrender it when demanded, the defendants had no right to expel him from the cars, except at a regular station. In support of this position, it is urged by counsel for appellee, that the refusal to surrender the ticket was merely equivalent to a refusal to pay the fare, and that the statutory prohibition against the expulsion of passengers for this cause, except at a regular station, should be applied to cases like the present. We held, in the case of C. & A. R. R. v. Flagg, decided at the January Term, 1867 (ante, p. 364), that the neglect to buy a ticket before entering the train, when required by the rules of the road, was the same thing in substance as the refusal to pay the fare, and justified an expulsion only at a regular station. But the refusal to surrender a ticket, for which the requisite fare has already been paid, is certainly not the same thing as refusal to pay the fare. It may be no Avorse offense against the rights of the railroad company than the refusal to pay the fare, but it is not the same offense. Perhaps there was no good reason why the legislature should have forbidden railways to expel a passenger only at a regular station for the non-payment of fare, and have left them at liberty to expel one at any other point, for the disregard of any other reasonable rule. But it has done so, and it is our duty to leave the laAv as the legislature thought proper to establish it.
What, then, is the right of a railway company in reference to its passengers? Clearly, to require of them the observance of all such reasonable rules as tend to promote the comfort and convenience of the passengers, to preserve good order and propriety of behavior, to secure the safety of the train, and to enable the company to conduct its business as a common carrier with advantage to the public and to itself. So long as such mason able rules are observed by a passenger, the company is bound to carry him, but if they are wantonly disregarded, that obligation ceases, and the company may at once expel him from the train, using no more force than may be necessary for that purpose, and not selecting a dangerous or inconvenient place. This is a common law right, arising from the nature of their contract and occupation as common carriers, and, as already remarked, it has been restricted by the legislature only in cases where the offense consists in non-payment of fare. Ch., B. & Q. R. R. Co. v. Parks, 18 Ill. 460" date_filed="1857-04-15" court="Ill." case_name="Chicago, Burlington & Quincy Railroad v. Parks">18 Ill. 460; Hilliard v. Gould, 34 N. H 230; Cheny v. Boston & Maine R. R. Co., 11 Metc. 121. If, then, the regulation requiring passengers to surrender their tickets was a reasonable one, the ruling of the court below on this point was erroneous.
That the rule is a reasonable one really admits of no controversy. It was shown by witnesses on the trial, and must be apparent to any one, that the company must have the right to require the surrender of tickets, in order to guard itself against imposition and fraud, and to preserve the requisite method and accuracy in the management of its passenger department.
The Circuit Court left it to the jury to say whether the rule was reasonable. This was error. It was proper to admit testimony, as was done, but, either with or without this testimony, it was for the court to say whether the regulation was reasonable, and, therefore, obligatory upon the passengers. The necessity of holding this to be a question of law, and, therefore, within the province of the court to settle, is apparent from the consideration, that it is only by so holding, that fixed and permanent regulations can be established. If this question is to be left to juries, one rule would be applied by them torday and another to-morrow. In one trial a railway would be held liable, and in another, presenting the same question, not liable. Neither the companies nor passengers would know their rights or their obligations. A fixed system for the control of the vast interests . connected with railways would be impossible, while such a system is essential equally to the roads and to the public. A similar view has recently been taken of this question in the ease of Vedder v. Fellows, 20 N.Y., 126" date_filed="1859-09-05" court="NY" case_name="Vedder v. . Fellows">20 N. Y., 126.
The judgment must be reversed; but if it appears, upon another trial, that unnecessary violence was used, the defendants must respond in damages.
Judgment reversed.