29 A.D. 8 | N.Y. App. Div. | 1898
This action was brought to recover damages, the plaintiff having been ejected from one of the cars of the defendant company under circumstances which, he contends, entitle liinrto recover. The action came on at a Trial Term of this court, and, at the conclusion of the defendant’s evidence, the court granted the defendant’s motion to dis
Briefly stated, the facts, as developed on the trial, are as follows : The plaintiff rode from the Wall street ferry on the Montague street car of the defendant, and at the corner of Montague and Court streets received a transfer ticket of the defendant, authorizing him to take a Fulton street car from the corner of Court and Montague streets. The transfer ticket read : lc Yoid after time punched, and good only for this current trip on any line of this company, and in either direction from the junction of Court and Montague street.” It was two-thirty r. ar. when the plaintiff received this transfer ticket, and it was punched at the figures two-forty, allowing ten minutes for the transfer. The plaintiff, ivho was afflicted with hernia, his truss irritating him, desired to get a car in which he could sit down. The first car which came along was so crowded with passengers that it did not stop to take on any who were waiting. The second car stopped, but was already so full that passengers were standing in the aisle. The plaintiff did not attempt to get on board. The third car which came along going in the right direction afforded vacant seats, and the plaintiff got aboard.
The evidence is that the conductor took up the transfer ticket of the plaintiff, along with others, and went out upon the rear platform, when, after sorting over the transfers, he came back into the car and told the plaintiff that the time limit on his transfer had expired, and that he would have to pay his fare, at the same time calling attention to a posted rule of the company which provided that the transfer tickets must not be honored after the time puched in the margin, and, if they were taken by the conductors, they would not be allowed in the accounting. The conductor tendered the plaintiff the transfer ticket which he held in his hand, and demanded that the plaintiff pay his fare. This he refused to do, and the conductor called a ]3oliceinau and ejected the plaintiff, and it is alleged that the policeman, acting on the orders of the conductor, arrested the plaintiff, taking him to the Police Court where he was afterwards discharged, but this evidence was not allowed to appear in the case. It does not appear that any more force was used than was necessary
The main question- presented is whether the plaintiff was within his legal rights. If he had a right to be in that car, without the payment of a second fare, then it was clearly unlawful for the defendant, through its servants, to eject him, and he has a right to have the judgment of a jury upon his action: The real question involved, then, is whether the defendant has the right to make an arbitrary rule, which compels its patrons to take the first car which comes along, regardless of its capacity to give them accommodations, in order that they may have the benefits intended to be secured by the law of this State. It is true, as was held in the case of Townsend v. N. Y. C. & H. R. R. R. Co. (56 N. Y. 295), citing the case of Hibbard v. New York & Erie R. R. Co. (15 id. 455), that a railroad company has the right to “ establish reasonable regulations for the government of passengers upon its trains, and forcibly eject therefrom those who refused to comply with such regulations,” and that a regulation “ requiring passengers either to present evidence to the conductor of a right to a seat, when reasonably required so to do, or to pay fare, is reasonable; ” but the case now under consideration presents no facts to bring it within this rule. Section 104 of chapter 565 of the Laws of 1890, as amended by chapter 616 of the Laws of 1892, provides that “ Every such corporation entering into such contract shall carry or permit any other party thereto tó carry between any two points on the railroads or portions thereof embraced in such contract any passenger desiring to malee one continuóles trip between such points for one single fare, not higher than the fare lawfully chargeable by either of such corporations for an adult passenger. Every such corporation shall upon demand, and' without extra charge, give to each passenger, paying one single fare, a transfer, entitling such passenger to one continuóles trig? to any point or portion of any railroad embraced in such contract, to the end that the public convenience may be promoted by the operation of the railroads embraced in such contract substantially as a single railroad with a single rate of fare.” This is a statute extending the rights of the individual, and “ to the end that public convenience may be promoted,” and is to be liberally
“ Standing room in the passageway,” say the court in the case of Willis v. Long Island R. R. Co. (34 N. Y. 670), “is not proper accommodation for passengers. That part of the car is just what its name indicates, a way through the car. Each passenger seated in the car has a right to pass along the way at any and all times, and he, therefore, has a right to insist that it shall be at all times open and unobstructed. The company cannot rightfully compel a passenger to stand in it instead of furnishing him with a seat, and even if he consents to do so, they have no right to place him there
In the case of Werle v. Long Island R. R. Co. (98 N. Y. 650) the court say: “ The sale of tickets by the defendant at that station for passage on that train bound it to furnish a safe and secure place for its passengers to ride and comfortable accommodations for their convenience.” To the same effect is the case of Thorpe v. N. Y. C. & H. R. R. R. Co. (76 N. Y. 402). The individual may waive these rights and may submit to the annoyance and discomfort incident to travel in over-crowded conveyances, but the fact that thousands of persons do waive their rights each day does not justify the railroad company in establishing a rule compelling people to do so, or to forfeit their rights under the law of the State. A regulation that the passenger should take the first ear which afforded him a seat or suitable accommodations would meet all the requirements of the law, as it would evidence the good faith of the individual in his desire to make a continuous trip, but an arbitrary time limit, applying equally to the feeble and infirm, and which is only sufficient to allow a very narrow choice of cars, cannot be said to be such a reasonable regulation as the company is justified in making under the law.
In a very similar case occurring in Detroit (Heffron v. Detroit City R. Co., 16 Law. Rep. Ann. 345), where the plaintiff was given a transfer ticket reading, “This slip will not be honored unless presented at the intersection of the Woodward avenue line and line punched in margin, within fifteen minutes of time punched, for a continuous trip only,” the appellate court sustained the trial court in its judgment in favor of the defendant, but the decision was based upon the proposition that the transfer was voluntary on the part of the company, and that it had a right to make such terms as it might elect. “ The company had the right,” say the court, “ under the ordinances of the city, to treat, the Jefferson avenue line as a single road, and to charge five cents fare; but it saw fit to make a continu
In the case of McMahon v. Third Avenue Railroad Co. (15 J. & S. 282) the plaintiff paid for a passage over the line of the defendant, and was given, at an intermediate point thereon, in return for an additional sum paid by him, a ticket, on which were these words: “ Third Avenue Railroad Company! Good only from- Sixty-fifth street up to Yorkville and Harlem for a continuous ride. By order of the president.” The plaintiff did not use the ticket immediately, but afterwards, and upon the same day, he entered one of the cars of the company below the point, paying his fare to Sixty-fifth street. After passing this point the plaintiff tendered the ticket which he had purchased earlier in the day, and it was refused by the conductor, who, upon the plaintiff refusing to pay his fare, ejected him from the car. The jury found for the plaintiff, and on appeal the court say : “ The ticket contains the contract between the plaintiff and the defendant. The meaning of the words on it is plain. They
The transfer ticket, which was given to the plaintiff, and which put an arbitrary limit upon the time, did not modify the original contract entered into at the time of paying the fare; nor did the plaintiff, in accepting it, waive any rights which he had under the original contract. As was said in the case of Lechowitzer v. The Hamburg-American Packet Co. (59 N. Y. St. Repr. 486): “ The paper relied on as limiting defendant’s liability was not given to him when and where he paid for his passage, but days afterward when he was already at sea on the steamer and powerless to repudiate the pretended contract. When a party has no freedom to reject a proposed stipulation, because then unable to reinstate liimself * * * an inference of his assent to the stipulation would he simply preposterous. His proceeding on the voyage and suffering his baggage to remain with the carriers were compulsory, and can, therefore, imply no assent to terms of transportation then for the first time communicated to him.” The plaintiff could not change the contract ; he was bound to accept the transfer ticket tendered, or none at all, and he cannot, therefore, be deemed to have given any assent to the condition imposed, which limited the right guaranteed by the statute.
It does not seem to be necessary to go into the consideration of the other points involved in this action to any great length, but as the case must be retried, it may not be out of place to say that in • our opinion the trial court was not justified in excluding the evi
The motion for a new trial is granted, costs to abide the event.
All concurred.
Exceptions sustained and new trial granted, costs to abide the event.