Pease v. Delaware, Lackawanna & Western Railroad

11 Daly 350

• Court: New York Court of Common Pleas
• Decided: January 12, 1883
• Status: Published

Opinions

J. F. Daly, J.

[After stating the facts as above.] —If train arrived at a regular- stopping place, and while there the conductor proceeded to eject a passenger for non-payment of fare, the latter might offer to pay before he was actually ejected, and such payment should be received. But if the stoppage of the train was for the sole purpose of putting the passenger off, and he had rendered the stoppage necessary by a factious refusal to pay the fare, he would not have the right to terider the fare and continue his trip after having caused such an interruption (O'Brien v. New York Central &c. R. R. Co., 80 N. Y. 236).

The evidence in this case is that the train had started on its way from a regular stopping place, and was stopped again for the express purpose of putting plaintiff off. There was, therefore, a stoppage of the train for the sole purpose of ejecting the plaintiff, and he had no right to tender his fare afterwards, for he had forfeited his right to continue his journey (Hibbard v. New York Brie R. R. Co., 15 N. Y. 455). It can make no difference in principle whether the train has proceeded a longer or shorter distance when it is stopped again, nor whether the second stoppage was made while it was within the limits of the ordinary stopping place. It is the fact that a stop has to be made through the pertinacity of the passenger in wrongfully refusing his fare that determines the question.

The charge seems to me to be erroneous in disregarding the facts of the case which called 'for the application of the principle. There was no conflict of evidence on this point.

The plaintiff says that the train did not go on after the time they took hold of him till he was put off. This was undoubtedly so. They stopped to put him off and started again after he was off. But this was the second stoppage. The witness Kearney saw the train just at the time of the ejection of the plaintiff. The train came to a standstill then, and did not start again till after the ejection. This is not a contradiction of the positive testimony of several witnesses as to two stoppages. Kearney only saw the one that was made for the purpose of ejecting plaintiff. The plaint-^ iff himself states that the conductor pulled the bell to stop and put him off.

The judgment and order should be reversed with costs of this appeal to defendant to abide event, and a new trial ordered, with costs of former trial to abide event.