Kennedy v. Birmingham Railway, Light & Power Co.

138 Ala. 225 | Ala. | 1902

TYSON, J.

Substantially but one question is presented by this record. It is the reasonableness of a regulation of defendant company requiring the plaintiff as a passenger to pay in cash a greater sum than is charged by it for a ticket between the same points.

It is shown both by the averments of counts one and two and by the evidence, that the car boarded by plaintiff stopped at or near the intersection of certain streets in the city of Birmingham for the purpose of taking on passengers, and that defendant had no depot or agent or tickets for sale at that point. The point was designated by the defendant’s conductor, in his testimony, as a flag' station. It is true, that the evidence discloses that the defendant had a depot, ticket agent and tickets on sale in the city of Birmingham at a point some two and a half blocks (about one thousand feet) from the point where plaintiff boarded the car.

All the cases agree that carriers of passengers may require persons to purchase tickets before taking passage on their cars, and to this end may adopt a rule or regulation establishing a higher rate to be paid the conductor than the rate charged for a ticket. But to justify a discrimination in the rates, the carrier must provide the proper facility and accommodation for so purchasing the ticket. If the carrier fails to give the passenger a convenient and accessible place and an opportunity to buy his ticket before entering the car, the regulation is unreasonable and void, and is no defense to an action brought by the passenger for his ejection by the conductor after he has paid the ticket rate. — 25 Am. & Eng. Ency. Law (1st ed.), 1104-5; Redfield on Railways, 104-105 and note; Elliott on Railroads, § 200; Reese v. Pa. R. R. Co., 131 Pa. St. 422; Sage v. Evansville R. R. Co., 134 Ind. 100; Swan v. Manchester R. R. Co., 132 Mass. 116; Pullman Co. v. Reed, 75 Ill. 125; Snellaker v. P. R. R. Co., 94 Ky. 597. This principle was clearly recognized and enforced in Evans v. M. & C. R. R. Co., 56 Ala. 246, which was an action for damages by a passenger of a mixed train, operated by defendant, carrying both freight and passengers, on account of ejection by the conductor after a tender of the amount of the fare, where it was held, that a railroad company, as a common carrier, may make reasonable rules for the regulation of the business and the performance of its public duties; but, in the adoption of these rules, regard must be had to the convenience and interest of the traveling public. It may forbid the transportation of freight and passengers on the same trains, or may require passengers, traveling on freight trains, to procure tickets before entering the cars; but, in such case, reasonable facilities for procuring tickets at or about the time of the arrival or departure of the trains, must be afforded, according to the established usage of all railroads; and it is not reasonable, while allowing passengers to travel on freight trains, to afford them no opportunity to procure tickets except at such hours as would make it more expeditious to travel by the passenger trains.

84 Wis. 412, that a passenger going upon a train at a station at which tickets are not sold cannot lawfully be charged more than the regular fare because of his not having a ticket. Likewise in Poole v. Northern Pacific R. R. Co., 16 Oregon, 261, it was decided that a company which had provided a station without a ticket office and at which its passenger trains stop, has not put it in the power of the traveler to comply with such rules, and such rule would be unreasonable as applied to such stations or to such traveler, when he offered to pay the usual fare. If the railroad company has failed or neglected to furnish the traveler the opportunity to procure a ticket and he applies for a passage or enters the train, without having such ticket, but offers to pay the regular fare, it cannot lawfully eject him.

In Sternberg v. The State, (56 Am. & Eng. R. R. Cases, 424), it is said: “A street railway has no depots. Its stopping places are on each street corner and it transacts its business with the public in its cars and its tickets should be kept for sale where it transacts its business with the public.”

We do not think that the plaintiff, under the facts of this case, should have been required to go two and a half blocks to purchase a ticket before boarding the car of the defendant át a flag station, in order to have the benefit of the ticket rate. If defendant desires to enforce, the rule or regulation at all points along its line where it receives passengers for transportation, it should have tickets on sale at those points. The keeping them for sale at one station will not justify its discrimination against passengers who take passage at other and different stations.

The several rulings of the trial court are not in harmony with these views.

Reversed and remanded.