Union Pacific Railway Co. v. Wolf

54 Kan. 592

• Court: Supreme Court of Kansas
• Decided: January 15, 1895
• Status: Published

Opinion

The opinion of the court was delivered by

Johnston, J.:

Under the law as it existed in March, 1890, a railway company was permitted to discriminate in its rates between passengers who purchased tickets and those who did not, provided the company kept a ticket office open for sale of tickets for at least 30 minutes prior to the departure of the train, with an agent at hand, ready upon call to sell tickets to those who might apply for them. (Laws of 1886, ch. 139.) It appears that Wolf took passage on the train without a ticket, and when the conductor demanded the excess fare Wolf declined to pay the same, and was expelled from the train. The excuse of Wolf for failing to purchase a ticket is that the agent was not in the office, as the law requires, and that he had no opportunity to purchase the same before the departure of the train. The testimony and the findings of the jury, however, do not accord with his claim. He arrived at the depot shortly before the departure of the train, and about 9 o’clock at night, when he went to the door of the waiting room, where he met parties coming out, to whom he stated that he wanted to purchase a ticket, and one of them replied that he was too late. He then went out upon the platform, saw the agent, Harvey, there, but did not ask him for a ticket, although the train was a mile and a half away, and there was yet sufficient time to purchase a ticket. When he went to the door of the waiting room, the ticket office was lighted, and in it was Mr. Epps, who was authorized to sell tickets. The door of the ticket office was open, but Wolf did not go to the ticket office nor apply there to purchase a ticket. It is stated that the window of the ticket office, which opens into the waiting room was closed, but the door was open, and the room being lighted, an applicant could easily see through the window or door that the ticket office was occupied and that there was a person there authorized and ready upon call to sell tickets. The trial court instructed the jury as follows :

“If defendant, said railway company, had a particular office or place such as was easily noticeable in the depot building at Victoria, on March 29, 1890, for the sale of tickets, it was the duty of the plaintiff to apply therefor at that room or office; and if you find from the evidence in this case that the defendant company, by its agents, had a person or persons in that room or office 30 minutes immediately prior to the departure of the train in question going from Victoria to Russell, on the night of March 29, 1890, from whom plaintiff could have purchased a. ticket from Victoria to Russell, by paying regular and legal fare therefor, and did not make such application at said room or office, plaintiff cannot recover in this action.”

The application of this rule to the special findings of the jury necessarily defeats a recovery by Wolf, and requires an entry of judgment in favor of the railway company. The jury found that the ticket office was open for more than 30 minutes immediately prior to the departure of the train, in which there was a person authorized to sell tickets to all who applied for them and who offered therefor the proper amount of money, and that Wolf did not apply to such person for a ticket. It is true the jury found that the office window was not open, but this is unimportant, in view of the fact that the office was lighted and in charge of a person authorized to sell tickets. The door of the office was open, and anyone who approached for the purpose of purchasing a ticket could readily obtain one. It is also true, as found by the jury, that the principal and regular agent was not in the office all of 30 minutes previous to the starting of the train, but this affords no excuse for the failure of Wolf to purchase a ticket, since the office was open and in charge of one authorized to sell tickets. No excuse can be based on the statement heard by Wolf at the outside door of the waiting room, that it was then too late to get a ticket. This statement was made by Huyle, who was not employed by the railway company or by its agent. Instead of approaching the ticket office, where he could have obtained a ticket upon call, he turned around and left the depot, and although he saw the principal agent of the company upon the platform he made no application nor other effort toward obtaining a ticket. His own testimony and the findings of the jury show beyond question that the ticket office of the company was open for the sale of tickets until the departure of the train, and they show with equal clearness that Wolf did not apply at the ticket office to purchase a ticket, and although the office was easily noticeable and convenient of access, he did not even approach close enough to ascertain whether there was any person in the office or not. More than that, as we have seen, Harvey, the principal agent, was upon the platform, within call, and although Wolf saw him and there was sufficient time to have procured a ticket from him, Wolf did not ask him for a ticket. Under the testimony and the law, the railway company was entitled to collect excess fare, and Wolf is therefore not entitled to recover any damages. The judgment will be reversed, and the cause remanded, with instructions to enter judgment upon the findings in favor of the railway company.

All the Justices concurring.