Robb v. Railway Co.

14 Pa. Super. 282, 1900 Pa. Super. LEXIS 49

• Court: Superior Court of Pennsylvania
• Decided: July 26, 1900
• Docket: Appeal, No. 109
• Status: Published

Opinion

Opinion by

W. D. Pouter, J.,

The plaintiff had purchased, at the office of the Pennsylvania company at Wellsville, Ohio, an interchangeable 1,000 jnile rebate exchange ticket, issued by the Central Passenger Association, which was exchangeable for tickets over the lines of the companies designated in the contract, one of which was the defendant company. The Central Passenger Association represented a number of separate and distinct railroad companies operating independent lines; among the companies composing the association were the Lake Shore, Michigan Central and Pennsylvania lines. The interchangeable mileage tickets in question were sold by the various companies at their ticket offices, to all persons who desired to purchase, the company selling acting as the agent for the other lines in so far as the so-called ticket was available to procure transportation on such lines. The price at which these mileage books were sold was $80.00, but the contract contained a provision that “if the ticket was used in its entirety and exclusively by the lawful owner, and that fact stated by the record pertaining thereto, a rebate of $10.00 would be paid, provided the cover was properly certified and returned to the mileage ticket bureau of the Central Passenger Association, Chicago, Ill., within eighteen months from the date of its issue.” This was a reduced rate of fare, available to all who desired to purchase this contract concerning transportation, and was a sufficient consideration to support the covenants of the contract, entered into by the purchaser, imposing limitations and regulations as to the manner in which the right of carriage was to become available. The covenants contained in this interchangeable mileage book which are material to the consideration of this case are contained in the following paragraphs of the contract, signed by the plaintiff: “ 1. The original purchaser, whose signature is fixed to the contract bearing the same form and number as this ticket, and who is, therefore, the only lawful owner hereof, is entitled to receive 1,000 miles of transportation in exchange tickets over the lines named in back cover, under the local regulations and subject to all of the conditions of the contract.” “ 2. This mileage ticket will not be honored on the train or in checking baggage, but must be presented at the ticket office by its original purchaser and lawful owner, and there exchanged for a continuous passage ticket, which will be honored in checking baggage and for passage when presented in connection with this mileage ticket.” “ 7. In consideration of the rebate to be paid to the original purchaser and lawful owner of this ticket, he or she agrees to sign his or her name to the contract, and to the mileage stub and exchange ticket when requested to do so by the agent or conductor of any line named hereon. 8. This ticket must be presented to conductor with the exchange ticket received from the ticket agent. An exchange ticket will not be accepted for passage unless it is accompanied by the mileage ticket upon which it was issued.”

The plaintiff on January 11, 1898, being at Collier station, on the line of the defendant company, presented his Central Passenger Association interchangeable mileage ticket to the ticket agent, surrendered the necessary number of coupons and obtained an exchange ticket westward to New Cumberland junction, intending to take an express train eastward from that point which did not stop at Collier station. The train upon which the plaintiff arrived at New Cumberland junction was due there one minute after the express train going eastward, which plaintiff intended to take, would have arrived if it had been on time, but the express train was behind time and did not arrive until a few minutes later. The plaintiff testified that he immediately went to the ticket office and found the ticket window open but no person inside the office. He there presented his mileage book, but there was no person to furnish him with an exchange ticket. He then went to the door and saw a number of men on the platform and again returned to the window of the ticket office. After he had thus been waiting some time, the ticket agent came in and thereupon the plaintiff tendered his mileage book and demanded an exchange ticket, whereupon the ticket agent said: “ I can’t give you a ticket off that now; I haven’t got time. There is the train has whistled.” The plaintiff replied, “ I have been here time enough to get half a dozen tickets and nobody here to give me a ticket and the window open for doing business.” The ticket agent repeated, “ I can’t help .that; I haven’t got time; I can’t give you a ticket.” The plaintiff then said : “ I am going on that train anyway.” Plaintiff did get onto the train without a ticket. After the train was under way, when the conductor in making his rounds, reached the plaintiff the latter presented his interchangeable mileage book. The conductor informed him that he could not accept this mileage book on the train. The plaintiff said, “ I cannot help that; here is my fare. I have $30.00 invested in this book; my fare is paid at two cents a mile, and I don’t propose to pay three cents a mile when my fare is already paid at two cents a mile.” The conductor refused to accept the mileage book and demanded that the plaintiff pay his fare, which the latter refused to do. The conductor notified him that unless he paid his fare he would have to put him off, but the plaintiff still declined to pay fare. When the train arrived at Collier station it was stopped and the conductor motioned for the plaintiff and said tins was the place to get off, and thereupon the plaintiff left the train and subsequently brought this action in trespass to recover damages for the alleged wrongful expulsion from the train. The agent of the defendant company at New Cumberland junction testified that there was only three minutes’ time between the departure of the train by which the plaintiff arrived and the arrival of the east-bound express train, on which plaintiff wished to depart, and that he, the agent, was busily engaged in taking care of the baggage and mail matter which had come in upon the same train with the plaintiff, and further, that it required considerable time to make out the exchange tickets required under the mileage book contract, and that he did not have sufficient time to make out such ticket.

The learned court below was of opinion that the whole case depended upon whether there was, after the moment when the plaintiff first presented his mileage book at .the ticket office, a sufficient time to have made out an exchange ticket prior to the actual arrival of the train, if the ticket agent had been actually at his window. The language of the learned judge was: “ So the question for you to determine is whether there was a sufficient time for the agent to give Mr. Robb this new ticket, after he presented the interchangeable ticket at the window; whether there was a reasonably sufficient length of time for him to make out the new ticket to enable him to go to Burgettstown; if there was, then it was the duty of the company to have the agent there for the purpose of making the ticket out, and if he was not there, and did not come until it was too late to make out the ticket, then the company is liable in this action.” This portion of the charge and the refusal of the court to grant the prayer of the defendant for a binding instruction, cover all the assignments of error. The jury haying found that there was a reasonably sufficient time to have made out such an exchange ticket after the presentation of the mileage book at the ticket office, we must assume that there was a breach of the contract entered into by the agent of the defendant company, on its behalf, to furnish an exchange ticket'good for transportation over its lines. The rights of the plaintiff under such circumstances did not involve any regulation of the company or a lack of knowledge thereof by the plaintiff, and are not to be determined by the same principles which governed in Railway Company v. Greenwood, 78 Pa. 373. The plaintiff fully understood his rights under the contract which he had signed and was not deceived as to the character of the ticket which he held by the mistake of any agent of the defendant company, and for that reason the case of The Railroad v. Bambrey, 2 Monaghan, 109, does not apply. No rule or regulation of the company, limiting the rights of the plaintiff under the express terms of his contract, was invoked by the conductor when he expelled the plaintiff from the train. The rights of the plaintiff are to be determined, therefore, under the express terms of his contract. The breach of the contract, if there was any, involved in the failure of the ticket agent to make out an exchange ticket in time, consisted simply in the failure to furnish that exchange ticket. The result of the failure to furnish the exchange ticket was that the plaintiff could not avail himself of the advantages to be derived from using his mileage book upon that journey. If, because of such failure to furnish an exchange ticket, he was' compelled to wait until the next train in order to use his mileage book, the measure of damages would be the delay which resulted from the breach of the contract. As soon as the breach of contract occurred it was the duty of the plaintiff to take such steps as reasonable care and foresight require, under the circumstances, to prevent an undue inflation of the damages arising from the breach. If it was necessary that he should proceed by the train which was then approaching, he could buy a general passenger’s ticket; or, if he did not have time to do that, he could take the train and pay his fare; in either of which cases the measure of damages would be the additional expenditure involved in making the journey in this way. The failure of the company to furnish an exchange ticket, because of the neglect of the ticket agent to be at his window, did not enlarge the contract nor change its terms; if the plaintiff was injured he had his right of action, but he still remained bound by every covenant into which he had entered. The right of a railroad company to make reasonable regulations, not only as to the amount of fare, but as to the time, place and mode of payment, is unquestionable. This right includes the right to refuse altogether to carry without the previous procurement of a ticket. And so such a company has the right to make a regulation that special tickets only shall entitle the holder to transportation by certain trains. They have the power to make a regulation ■that excursion or special tickets shall only be available for transportation upon particular trains and subject to peculiar conditions, which, if not complied with, would warrant an ex.pulsion of the passenger: Railway Company v. Rosenzweig, 113 Pa. 519; Reese v. Penna. R. Co., 131 Pa. 422. A contract is made between the parties when the passenger purchases his ticket. The ticket may not embody the whole contract, which must be gathered, so far as not expressed, from the rules and regulations of the company in running its trains; but so far as the terms of the contract are expressed, they are binding not only upon the railroad company but upon the passenger. When his contract, under the circumstances under which he attempts to use it, does not give him the right to ride, the company may lawfully eject him in a proper manner and at a proper place: Dietrich v. Penna. R. Co., 71 Pa. 432; Railway Company v. Clark, 72 Pa. 231. In this case the mileage ticket or contract which the plaintiff presented to the conductor, and upon which he now brings this action, declared upon its face that it was not within itself a contract of carriage. The plaintiff when he boarded the train knew that his contract contained this provision, viz: “ This mileage ticket will not be honored on the train, nor in checking baggage.” He knew that this mileage book must be presented in connection with an exchange ticket, and he knew that if the conductor of the train permitted him to ride to his destination, he would be violating his dutjr. The presumption that the plaintiff knew the contents of the contract which he had signed is conclusive, but the plaintiff testified that he had already used the book in the manner required by the contract at Collier station, and that he had again demanded an exchange ticket at New Cumberland junction, so that it is not necessary to rely upon the mere presumption of his knowledge. The provisions of section 7 of the contract, with regard to the passenger signing the mileage stub and exchange ticket when required by the ticket agent or the conductor, were for the purpose of identification of the passenger as the person who was the original purchaser of the ticket. All these provisions for the identification of the passenger who presented himself as the person who had originally purchased the ticket, were for the purpose of making up the record referred to in the 6 th section of the contract, in order to determine whether or not the holder of the ticket was entitled to the $10.00 rebate, upon the return of the cover of the ticket after the mileage had been used.

The question is, therefore, simply upon a breach of the contract for carriage, and depends upon its terms. If the contract upon which the plaintiff relies was not in itself a contract for carriage, then he is not entitled to recover in the present action, nor for the injury of which he complains. Stress is laid on the fact testified to by plaintiff that he had been permitted to ride from the outer station at Steubenville, where there was no ticket office to Collier station without first obtaining an exchange ticket. This is directly in the teeth of the written agreement and could not operate to extend and free from all restrictions the rights of the plaintiff thereunder. If one conductor violated his duty by permitting the plaintiff to ride upon the faith of his mileage book alone, that clearly could not bind all the conductors upon the other trains of the road: Beebe v. Ayres, 28 Barb. 278; Dietrich v. Railroad Company, supra. If the plaintiff had shown a regulation of the company authorizing the use of his mileage book in the manner in which he attempted to use it, under the circumstances in which he was placed, he would have had a right to board the train, and would have had standing to maintain his action. In the absence of such evidence he is thrown upon his contract, and the terms it imports or recognizes as the evidence of his right of transit over the defendant’s road. The contract upon its face denies him the right to transportation unless accompanied by other and further evidence. It was not a contract for carriage in any sense of the word, although it was a contract concerning transportation. The agreement of the railroad company was to furnish exchange tickets over its lines, subject to all the conditions of the contract, and the mileage book was not to be honored on the train, nor in checking baggage. The obtaining of the exchange ticket and exhibition of it to the conductor was a condition precedent to the plaintiff’s right to ride. He knew this fact when he took his seat in the car. The conductor very properly declined to permit the plaintiff to ride unless be produced an exchange ticket, but he did not arbitrarily expel the plaintiff from the train without giving him an opportunity to pay his fare. When the conductor offered the plaintiff the alternative of paying fare or leaving the train, the latter elected to leave the train, and now seeks to recover damages in an action of trespass, because of the failure of the company to furnish him an exchange ticket. He knew before he boarded the train that an exchange ticket was required: he knew that he had no exchange ticket; yet he determined to take the chances, declined to pay his fare and was very properly expelled from the train. It may be true that the company had violated its contract in failing to furnish the exchange ticket, but that was not the proximate cause of this plaintiff’s expulsion from the train ; his own voluntary act in boarding the train, with full knowledge of the conditions, intervened and exposed him to a humiliation, which by refusing to pay his fare he pressed to the utmost limit. Damages for an ordinary breach of contract cannot be inflated at will by the party injured in this manner. There was no evidence of any damage sustained by plaintiff other than the mere order to leave the train and compliance therewith.

We are of opinion that the request of the defendant for a binding instruction ought to have been affirmed, and the judgment is reversed.