140 N.Y.S. 950 | N.Y. App. Div. | 1913
Plaintiff brings this action to recover a penalty claimed to have been incurred by defendant for violation of section 59 of the Railroad Law (Consol. Laws, chap. 49; Laws of 1910, chap. 481), which is as follows:
“§59. Penalty for excessive fare. Any railroad corporation, which shall ask or receive more than the lawful rate of fare, unless such overcharge was made through inadvertence or mistake, not amounting to gross negligence, shall forfeit fifty dol*800 lars, to be recovered with the excess so received by the party paying the same; but no action can be maintained therefor, unless commenced within one year after the cause of action accrued.”
This is a penal statute. To recover under it plaintiff has the burden of bringing the case clearly within its terms, and defendant is entitled to the benefit of any reasonable doubt of the application of the statute to the case as made. As was said by Marvin, J., in Chase v. N. Y. C. R. R. Co. (26 N. Y. 523): “In statutes giving a penalty, if there be reasonable doubt of the case made upon the trial or in the pleadings coming within the statute, the party of whom the penalty is claimed is to have the benefit of such doubt.” This doctrine is cited with approval in Goodspeed v. Ithaca St. R. Co. (184 N. Y. 351).
To recover here plaintiff was bound to show by preponderance of evidence that the acts of defendant’s agents, by which he was required to pay the lawful rate of fare twice over, was not by reason of the “inadvertence or mistake” of those agents “ not amounting to gross negligence.” This was not a case of charging an excessive rate of fare within this statute, but a case of charging the lawful rate of fare twice over because of the mistake of defendant’s agents, not as to the lawful rate, but as to whether it had once been paid, and is like the case of Robinson v. International R. Co. (54 Misc. Rep. 163), where Justice Brown ruled that the statute did not apply to the case of a street car conductor demanding and collecting the lawful fare of five cents the second time, under the mistaken belief that the fare had not been previously paid.
But if I am wrong in this view, still I think plaintiff did not make a case to show that the failure of defendant’s ticket agent at Dayton to give plaintiff a ticket at the time he paid his fare was due to anything more than ordinary inadvertence or mistake. The evidence shows that this agent had four trains to take care of at this station at this time, and that he was alone in the ticket office; that ordinarily the baggageman attended to issuing the dog checks, but at this time the baggageman was engaged in transferring baggage from one train to another, and so the agent in the midst of his other duties,
The conductor of the train was, of course, right in collecting the fare from the plaintiff. It was his duty to do so and it was the duty of the plaintiff to pay because he had no ticket, but the jury has evidently punished the company in this case because of the conduct of this conductor. The case must turn upon the conduct of the ticket agent, and the case as made does not show that the failure of the ticket agent to give the plaintiff a passenger ticket was not through inadvertence or mistake. On the contrary, no other inference can properly be
Our conclusion is that the verdict in this case is against the weight of the evidence, and that the judgment and order appealed from should be reversed and a new trial ordered, with costs to the appellant to abide the event.
All concurred, except Kruse and Robson, JJ., who dissented.
Judgment and order reversed and new trial granted, with costs to appellant to abide event..