Johnson v. Concord Railroad

46 N.H. 213

Opinions

Bartlett, J.

Footnotes

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Whether or not in the absence of evidence as to any regulations or usage of the defendants, the plaintiff, upon the purchase of a ticket from Concord to Nashua, would be held entitled merely to a continuous passage and by the next train, and whether he would have had legal ground of complaint if the cars had not stopped at Manchester, are questions that need not be considered in this case. By the purchase of such a ticket from the defendants and payment for it the plaintiff would become entitled to be carried , by the defendants over their railroad from Concord to Nashua; and if, in the absence of express stipulations, the contract on the part of the defendants should be held an agreement so to carry the plaintiff in a reasonable time and manner, the reasonableness must in general bo determined with reference to other matters than the plaintiff’s peculiar situation merely, for he could not properly claim to be thus carried except at such reasonable times as might be fixed by the corporation for the running of their trains between those places : and so the contract, which the ticket does not attempt to set forth in full, will be found in various other respects.

Ordinarily the ticket is not and does not contain the contract, Quimby v. Vanderbilt, 3 Smith (N. Y.) 313, Nevins v. Bay State Co., 4 Bosw. 225, Railroad v. Page, 22 Barb. 132, Railroad v. Bertram, 11 Ohio (N. S.) 462, although it may furnish evidence of the contract, Barker v. Clafflin, 31 Barb. 556, Brown v. Railroad, 11 Cush. 101, Railroad v. Proctor, 1 Allen 268. Practically, the only construction, that can well be given to the contract in such a case, is that it is an agreement by the defendants "to carry the plaintiff from Concord to Nashua in a reasonable time and manner agreeably to their reasonable rules and regulations, if they have such, whether the same are established by formal regulation or by settled usage; and this is the reasonable manner in which the contract is to be performed; otherwise it might be a question for a jury in each case whether the passage was claimed or furnished in a reasonable time or manner, Tyler v. Webster, 43 N. H. 151; and if each case instead of being settled by some general rule were left to be determined upon its peculiar circumstances, the result would not only be found extremely inconvenient to the public, but public carriers, like our railroads, would be practically disabled to perform their duties in the transportation of passengers. Public convenience, as well as the nature and necessity of the case, requires that such carriers should have the power to make reasonable regulations as to the mode of their performance of their duty as carriers, and where such regulations are made they so far establish definite rules of general application, which may obviate the necessity of submitting the question of reasonable time and manner to the jury in every individual case. Tyler v. Webster. We find that similar views of the law have been taken elsewhere. State v. Overton, 4 Zabriskie 435; Cheney v. B. & M. R. R., 11 Met. 121; Redfield on Railways, 32; 1 Am. Law Reg. (N. S.) 7; and see State v. Chovin, 7 Clarke (Iowa) 204; Railroad v. Vanatta, 21 Ill. 189; Day v. Owen, 5 Mich. 520; Railroad v. Dalby, 19 Ill. 353.

Nearly a year before the plaintiff purchased his ticket, the defendant® had established a rule that tickets over their road should be dated on the day of their sale, and should only entitle each .holder to a passage on that day, provided that joint tickets should be good for such further time as might be necessary to enable the holders by the regular trains of the road to reach the stations to which the tickets were sold. This regulation seems designed to protect the corporation against fraud, to epable them to perform their duties as passenger carriers easily and properly, to facilitate their settlements with connecting roads, and to secure prompt and convenient transportation for the public, and it throws no real hardship upon the traveller, for if he desires to make two different journeys he may purchase a ticket for each. Therefore, considering these circumstances and the length and situation of the Concord railroad, we are of opinion that this regulation was not unreasonable. In the present case we have had no occasion to inquire how far such a regulation would be legally applicable to the case of a purchaser of a ticket, detained by inevitable accident or pure misfortune, and we have not examined that question.

This is not a case where the corporation seek to enforce a penalty or recover damages by virtue of a rule or by-law, and if the plaintiff had desired to know the regulation of the defendants in this respect, he should have inquired, State v. Overton, Cheney v. B. & M. R. R., Redfield on Railways, 295, 296 and n., St. John v. Nostrand, 6 Hill 157; see Bank v. Champlain Co., 23 Vt. 211, 212; and this could have been no greater hardship than the inquiries that passengers are daily obliged to make to learn the hours at which trains start and the like. Had the plaintiff shown that he was without information upon this subject, and that upon proper inquiries he obtained only a false answer, or eould get no information, a case would have been presented that we have not here been called on to consider. The fact that in the present case the ticket was sold to the plaintiff - by Wentworth at a distance can make no difference, for the receipt of their proportion of the ¡massage money by the defendants can bind them no farther than a sale of the ticket by themselves would have done. Schopman v. Railroad, 9 Cush. 29.

If a regulation of the railroad can be shown by usage; see Smith v. Railroad, 44 N. H. 332, Vedder v. Fellows, 6 Smith (N. Y.) 126; and if it was competent for the plaintiff to show a usage of the road existing at the time he bought his ticket, such as would have governed the defendants in the future so far as their contract with him was concerned, yet we think he has offered no competent evidence of any usage existing at the time he purchased his ticket or while he held it, which would entitle him to ride in the defendants’ cars by virtue of a ticket nearly four months old. If any such usage existed prior to the establishment of the regulation stated in the case, it then ceased to have effect as to future contracts, and there is no competent evidence of the existence of such a usage after the adoption of this regulation. The evidence of the plaintiff as well as of the defendants goes to show that the defendants’ conductors were instructed to enforce this regulation, and no question is made that such was the fact; and the instances testified to by the plaintiff and his witnesses where tickets had been used contrary to this regulation merely show that the conductors failed to do their duty, and have no tendency to prove a usage on the part of the defendants in conflict with this regulation, for the conductors had no power to repeal or alter it and no right to violate it, and these instances are not shown to have come to the knowledge of the governing officers of the corporation ; and the tickets thus misused cannot be presumed to have been received as valid by the conductors with the assent of the corporation, for such a reception of them was not within the scope of the authority of the conductors and was in disobedience to their positive instructions. Martin, v. Great Falls Co., 9 N. H. 51; Tebbets v. Moore, 19 N. H. 371; Beebee v, Ayers, 28 Barb. 283; and see Smith v. Railroad, 44 N. H. 332: Elkins v. Railroad, 23 N. H. 287; March v. Railroad, 29 N. H. 9.

But it has been urged that the evidence tended to show a usage by the defendants to allow passengers "to stop over,” existing for some time immediately prior to the adoption of the new regulation ; and that the plaintiff, knowing that usage but having no information of any change, could not be affected by the new regulation; but we think this latter position is founded upon a mistake.

If the contract is to be deemed an agreement by the defendants to carry in the usual manner, to the usual terminus and with the customary stops, Cheney v. Railroad, Story Bail. secs. 597, 600, Angell on Carriers, secs. 531, 533, 5 Petersd. Abr. *48 n., we need not inquire whether this is anything more than an agreement to carry according to their reasonable regulations, for at most it is in each of these cases but a contract to cany according to the reasonable usage, upon the ground that in the absence of any special agreement the parties are deemed to have contracted with reference to the established existing usage. Foye v. Leighton, 22 N. H. 76; Farnsworth v. Chase, 19 N. H. 534. It would introduce a most unnecessary and unprofitable embarrassment into the conduct of the business of such public carriers, if they were always to be bound by a usage, because it had at some former time existed, as to every person who had ever known the usage, unless notice of a change is brought home to him ; and it would create such practical difficulties in the performance of their duties by railroads as would in effect render them profitless to their owners and useless to the public. The recurring changes of travel and the frequent exigencies of business, for which provision must be made, are such that the changes essential to the public accommodation could hardly be made if railroads were thus hampered; and it would seem that our legislature deemed it necessary by statute to forbid the increase by railroads of their rates of fare without notice. Laws 1852, ch. 1277, sec. 1.

Notice, unless brought home to the passenger, can be of no real consequence in such a case. It might be suggested, that, in a case like the present, it would be quite practicable to endorse some notice of the change of rule upon the ticket: but when we take into account the number of the changes of different regulations important to travellers, that may become essential to convenient and safe transportation, and the frequency of their necessity, we think it can hardly be practicable to place notices of all such changes upon the ticket, and if it were, it would be far from insuring actual notice to all passengers. It seems to us that such a requirement would not prove of sufficient practical value to counterbalance its inconveniences. If it is understood by the public that the duty is on the traveller to inquire as to all such reasonable regulations as it may be important for him to know, we think there will result less inconvenience than from any holding of the law that tends to relieve the traveller from the duty of inquiry as to a part of such matters of regulation. The public would be quite as likely to be misled, if they were induced to rely upon the probability of seeing notices, not necessary to be brought home to the knowledge of individuals, as if they understood that the duty of inquiry rested upon the person desiring to know. Besides if knowledge of the notice is not necessary to be brought home to the individual, but only a reasonable publication of it is required, then a party is held charged with notice in effect upon the ground that he might have ascertained the change by reasonable inquiry, and we see no good reason why he may not as properly be held to make such inquiry of the proper officers or servants of the carrier corporation as among notices reasonably published in newspapers and handbills.

Usage is considered in the construction of such a contract, solely because, in the absence of express stipulations, parties are deemed to contract with reference to the known existing usage; and if the usage has ceased at the time of the contract the reason of the rule fails, and the contract is not ordinarily deemed to have been made with reference to the abolished usage. Cookendorfer v. Preston, 4 How. 317. And so in Walker v. Jackson, 10 M. & W. 161, the jury found the existence of "an invariable usage and custom but the real question in that case was how fa,r the defendants were carriers; and it was decided that if they habitually held themselves out as carriers to a certain extent, (which was shown by their usage,) they could not divest themselves of the ordinary common law liabilities of such carriers by a notice like that shown in the case; so that the question was not- as to the necessity of notice of reasonable regulations established by them for the performance of their carrier duties, but of their power to relieve themselves of part of their common law liability and duty as carriers by such a notice.

If, then, the former usage made no part of the contract, it could not be operative in the present case unless by way of estoppel. But here the defendants, by the performance of their daily duty, cannot be taken to have so conducted as to induce a reasonable man to believe that they would at any future timé' maintain the same regulation; Drew v. Kimball, 43 N. H. 285; and the plaintiff’s conduct cannot properly be said to have been influenced by any intentional act or neglect on ’their part. As we have seen, the plaintiff is presumed to have contracted with reference to the reasonable regulations of the railroad; Beebee v. Ayers, 28 Barb. 280; and of these no notice was necessary in a case like this. Cheney v. B. & M. R. R.; and the same reasons would seem to ex ist for holding that no prior notice of a change of regulation was essential, because the duty of inquiry was on the plaintiff. Indeed, where the necessity for change of such regulations is so obvious and their frequency so notorious, a passenger who neglects to make any inquiry can hardly have good ground for complaint because of his ignorance of the new regulation. Odlin v. Gove, 41 N. H. 463.

The numerous cases as to the power of common carriers to limit their common law liability are distinguished from the present; for, as the carrier cannot divest himself of his common law responsibilities unless by a special contract, his own act alone must be insufficient to relieve him from such duties while he remains a common carrier. Moses v. B. & M. R. R., 24 N. H. 71; but he may and must in many respects regulate the mode in which he is to perform those duties, lb. 90, Day v. Owen, 5 Mich. 525 ; and so of inn-keepers. Nor are the cases, where a known partner has been held liable for the debts of the firm contracted after his retirement, in point here, for they can be explained upon the ordinary ground of estoppels in pais. Story Part. see. 160.

In the present action on the case the plaintiff claims to recover simply for his removal from the cars, and not on account of the manner of his removal, and, as he refused to pay his fare, his removal was perfectly justifiable. Laws 1852, ch. 1277, sec. 3; Hilliard v. Gould, 34 N. H. 240. As a complete answer in law to the cause of action set forth in the declaration appeals, the plaintiff cannot recover in this action, and therefore we need not examine the questions, whether, if more force was used in the removal of the plaintiff by the conductor, not through mere carelessness or negligence, but wilfully and intentionally, the defendants would he liable for such excess in any action; see Story’s Agency, secs. 452—456 & n., Hibbard v. Railroad. 1 Smith (N. Y.) 456, Sanford v. Railroad, 9 Smith (N. Y.) 343, Hewitt v. Swift, 3 Allen 420; or whether, if liable at all in such case, they would be so in this form of action. See Savignac v. Roome, 6 T. R. 125; McManus v. Crikett, 1 East 106.

There must be

Judgment on the verdict.

Perley, C. J., having been of counsel, did not sit.