45 Ark. 368 | Ark. | 1885
The contract between the passenger and the railway company upon which a ticket without qualification is issued, is by implication to the effect that the company will perform its whole duty as a carrier. Among these duties is that of furnishing the passenger the usual and reasonable accommodations for his comfort to the destination named in his ticket. This includes not only sufficient room, but also a seat in the usual mode of conveyance. Hutchinson on Car., Sec. 609; Thomps. on Car., p. 67; 2 Rorer on R. R., pp. 968-9.
The holder of the ticket agrees that he will conform to the reasonable rules and regulations of the company, and among others, that he will surrender his ticket to the company’s agent on demand after embarking on his journey under it. The conditions of this contract are not subject to division, so as to apportion the component parts. It is not within the power of either party to sever the terms of the contract, and demand a performance of the whole, while he, himself, complies with a part only. The carrier cannot claim a surrender of the ticket upon a proffer by it of transportation alone, because the contract calls for transportation in a seat. The pasj senger cannot avail himself of the benefit of the transportation offered him under his contract, and at the same time withhold from the carrier the effective evidence of the payment of his fare, i. e., the ticket. If he desires to repudiate the contract on his part, he must do so in toto. He cannot appropriate its benefits and get rid of its burdens. 1 Whart. Cont., Secs. 233, 552.
When the carrier proffers transportation without a seat, and the passenger refuses to surrender his ticket, what is then the attitude of the parties under the contract ? It is simply this : The carrier has offered the passenger less than his contract calls for and the passenger has refused it in satisfaction. This he has the unquestioned right to do. If he is not accommodated in a manner which may be deemed a fair compliance with the duty of the carrier, he may decline any compromise and resort to his action against the company for refusing to carry him as their contract or their duty requires. But lie cannot accept the part that is offered him in lieu of the whole —that is the transportation without the seat—and at the same time refuse to comply with his own undertakings, in this any more than in another contract. Upon the carrier’s neglect or refusal to comply with the terms of the contract of carriage, without a just excuse, the passenger is at liberty to treat the contract as violated by the company, and he may leave the train and sue for a breach of the contract.
It is not necessary to enter upon the determination, in this case, of the question whether he may not remain upon the train on compliance with the reasonable regulations of the company, without waiving his right to recover damages, under the contract, for the inconvenience of riding without a seat. However that may be, if he chooses to accept passage without a seat he must pay the fare for it. 2 Redf. R’y, p. 257 (See VII, Sec. 198;) Benj. on Sales, Sec. 690. If he goes on the train expecting to receive the accommodation he has contracted for, and is put off because he declines to deliver his ticket or pay fare without receiving the full measure of what he is entitled to under his contract, he may maintain his action upon the contract and recover any damages that are the proximate result of its breach, just as though he had disembarked of his own will. But if he is ejected without unnecessary force or violence because of his refusal to pay for his ride, the carrier has done nothing more than it has the legal right to do, and no recovery can be had for the ejection. Davis v. Railroad, 53 Mo., 317; Thompson on Car., p. 67; 2 Rorer Railroad, pp.. 968-9; Redf. R’y, sup.
The case was tried in the circuit court solely as an action of tort, and the recovery was had upon the theory that the appellant had been unlawfully expelled from the train, the court instructing the jury that the company could not lawfully expel him if they “ knowingly received him as a passenger, and then failed to furnish him a seat.” This, as we have seen, was error.
The judgment must be reversed and the cause remanded for a new trial.
