Parish v. Ulster & Delaware Railroad

90 N.Y.S. 1000 | N.Y. App. Div. | 1904

Parker, P. J.:

The action is for an assault and battery on the part of the conductor for ejecting the plaintiff from the defendant’s train. The trial judge charged the jury that she was unlawfully put off, and that the only question for them was the amount of damages which she suffered. Inasmuch as I have reached the conclusion that such instruction was erroneous, no other question need be examined.

On August 6, 1902, the plaintiff got upon the defendant’s train at Hobart for the purpose of riding to Davenport Center, She refused to pay her fare; that is conceded. Unless, therefore, the book which she then presented to the conductor was one that, upon its face, authorized her to be carried upon such train, the conductor was justified in putting her off. (Monnier v. New York Central & H. R. R. R. Co., 175 N. Y. 281.) It seems too clear for discussion that upon its face the book did not authorize her to ride upon it. In the month of August it was good only to those to whom it was issued, and it was not issued to her. Being addressed to Mr. H. M. Parish, it repels the idea that it was intended for her. And the conductor was not bound to hear her explanation and to determine from it whether her money had paid for the book and, through an error of the defendant’s clerk, it had been made out to the wrong party. In the Monnier case, above cited, it is distinctly held that even though the fare which the conductor demanded was, as between the traveler and the company, an unlawful exaction, yet it was not unlawfully exacted as between the traveler and the conductor, because he was not in a situation to determine that question. The conductor has the right to rely upon appearances, and if the ticket or book on its face does not apply to the plaintiff, or authorize him to ride upon it, then the conductor may enforce the reasonable rules of the company, even to the extent of ejecting the traveler from the train. It is hardly disputed that, so far as appearances were concerned, this plaintiff had no ticket or other evidence of any right to ride upon the train in question. She squarely refused to pay the regular and usual fare, and, therefore, within the clear authority of the above-cited case, the conductor was justified in putting her off.

It makes no difference that the plaintiff had paid her money and was entitled to a boob, proper in form, to permit her to ride upon it. She did not have such a boob, and, therefore, she was not in a position to .demand being carried without paying fare to the conductor.

If she has any claim against the company for issuing the ticket in the wrong name, that question must be determined in a proper action; but it is very clear that she neither had a ticket which authorized the conductor to carry her, nor, as against the conductor, did she have the right to be carried because she had paid for a book that she had not as yet received.

The situation was not substantially changed on August twenty-third, when the plaintiff a second time attempted to ride with this same conductor upon the same book, except that the plaintiff was then assured that under the defendant’s rules she could not ride upon that book until she had sent it in to the company’s office to be corrected. Olearly the action of the conductor had as full a justification the second time as it had the first.

Without discussing any of the many other questions raised in the case, for the reasons above given the judgment should be reversed.

All concurred.

Judgment and order reversed and new trial granted, with costs to appellant to abide event.