BALTIMORE & O. R. CO. v. THORNTON, 188 F. 868

CONNOR, District Judge. Defendant in error, hereinafter called plaintiff, instituted this action against plaintiff in error, hereinafter called defendant, and the Merchants’ & Miners’ Transportation Company, for the recovery of damages alleged to have been sustained by reason of her wrongful expulsion from the car of defendant Baltimore & Ohio Railroad Company. The action was instituted in the corporation court of Newport News, Va., and removed into the Circuit Court of the United States. Plaintiff, in her original declaration, set forth a cause of action sounding in tort.

An amended declaration was filed, alleging the same facts as in the original, but averring a breach of contract of carriage. The facts disclosed by the declaration are: On August 10, 1907, plaintiff purchased from the agent of the Merchants’ & Miners’ Transportation Company at Newport News a ticket from said point to Parkersburg, W. Va., over the railroad of the defendant, Baltimore & Ohio Railroad Company, via Baltimore and Washington City, paying the fare ($13.75) charged therefor.

She was given a ticket entitling her to travel from Newport News “to the station printed thereon, which was punched.” The. ticket attached to the declaration contained a printed list of stations over defendant road as far as Cincinnati, Ohio, including Parkersburg. The agent selling the1 ticket neglected to “punch” the word “Parkersburg,” which failure was not noticed by plaintiff. The ticket was duly stamped by the agent at Newport News.

She exhibited the ticket to the baggage agent at Newport News for the purpose of having her baggage checked and received from him a check to Parkersburg; he punched through the ticket the letters “B. C.,” signifying that the passenger’s baggage was checked. Plaintiff entered upon the boat of the Merchants’ & Miners’ Transportation Company and was carried; that is, her ticket was received and punched by the captain on said boat to Baltimore.

She was permitted, upon exhibiting the ticket, to pass through the gate of defendant’s yard at Baltimore and directed to enter defendant’s train of cars for Parkersburg — the ticket was punched — this was about 8 o’clock a. m. About 20 minutes after boarding the train the conductor came to plaintiff and called for her ticket, which she presented, when he refused to accept it and compelled her to leave the car at Washington, and conducted her to an agent of defendant company to have the ticket fixed.

The agent to whom the conductor conducted plaintiff said that he was not authorized to “fix” the ticket — that it could not be done until the next morning. Plaintiff told him thát she was a stranger in Washington — without friends. The agent said that probably the other agent, when he came on duty, might possibly fix it up for her that day — to have a seat until he came. When the other agent came in, he beckoned plaintiff to the window “took his pencil and marked on the ticket, and said at the same time, ‘Your ticket is all right, it will carry you to any place that is marked on here.

Your train will leave this evening at 4:05.’ ” Plaintiff gave an account of her condition and experience while waiting for the train, which she took, reaching Parkersburg the following morning at about 3 o’clock. Defendant demurred to the declaration, saying: “R’or specification of the grounds of its demurrer, this defendant alleges that the ticket declared upon in the count of plaintiff's amended declaration does not, upon its face, conform to the contract' of carriage set up by the plaintiff.

As between the conductor and the passenger, who is the plaintiff here, the ticket declared upon and filed as a part of the declaration is conclusive evidence of the passenger’s right: to ride and the extent of that rigid. The ticket declared npon shows, upon its face, that there was no destination indicated and, therefore, there being no allegation that the conductor used more force than was necessary in ejecting the plaintiff from the Baltimore & Ohio train, the ejection was not wrongful or tortious, ami the plaintiffs action in tort cannot be sustained as matter of law.

The face of the ticket not entitling the passenger to ride to any destination on the Baltimore & Ohio Railroad, it was the right and duty of the conductor to eject, her, using no more force than necessary, and the plaintiff cannot sustain an action in tort for the ejection.

Any action the plaintiff may have against the defendant must he by suit for damages for the breach of the contract made by the ticket, agent at Newport News, who failed to deliver her a ticket to Parkers-burg.” It will be convenient to dispose of the question raised by, and argued upon, the demurrer, before discussing the exceptions pointed to the rulings of the lower court during the trial.

Defendant’s contention is thus clearly stated in the brief: “The ticket being invalid upon its face, the ejection was not wrongful; therefore, plaintiff’s declaration sounding in tort for the wrongful ejection cannot be maintained. She has mistaken her form of action which is for breach of the contract of carriage a dually made and for failure to deliver her a true token or ticket conforming to the contract made.” The court overruled the demurrer, and for this ruling defendant makes its first assignment of error.

Counsel for defendant frankly conceded that, if his proposition that the ticket given to plaintiff by the agent at Newport News was invalid could not be maintained, the demurrer was properly overruled. This invites an examination of the question whether the ticket was so manifestly invalid that it conferred upon plaintiff no right to he treated as a passenger or to b,e carried to Parkersburg. The ticket was properly stamped, showing the station at which it was issued. There could, therefore, be no suggestion that it had come into the possession of plaintiff through any other than a lawful channel.

It was not mutilated. The date was the same day upon which it was tendered. It contained unmistakable evidence that it had been recognized by the baggage man at Newport News, and that the plaintiff'had received a check for her baggage — it was “'punched” showing that the officer on the boat had recognized it as valid, and that the gateman at Baltimore had passed plaintiff into defendant’s station upon it. The ticket contained the names of stations over defendant’s road beyond Parkers-burg, as far as Cincinnati.

The only respect in which there was any ambiguity, therefore, was the failure to “punch” the station to which plaintiff was entitled to be carried. Her claim that she was entitled to go to Parkersburg was not contradicted by any printed or written words on the ticket. It must have been apparent to any person of reasonable intelligence that the agent had neglected to “punch” the station to which plaintiff had paid her fare. In this respect the case differs from those cited by counsel or found in the reports.

Conceding the soundness of the rule that, as between the conductor and the passenger, the ticket is conclusive evidence of the contract with the company and of the extent of the passenger’s right to- remain on the car and pursue her journey, it is manifest that the conductor could not arbitrarily, or without at least a reasonable effort, by an inspection and resort to such sources of information as the ticket contained, ascertain the terms, and proyisions of the contract made with defendant, refuse to receive it and expel her from the car.

It is well settled that the company may make and enforce reasonable rules prescribing and. regulating the conditions upon which persons may- become passengers and determining their right to remain on the cars, and' be carried to their destination. There is no evidence in this record showing any rule of defendant company prohibiting the conductor from accepting the ticket as presented; on the contrary, it is conceded that another conductor, on the same day, accepted the ticket without being “punched,” and carried plaintiff over the same route pursued by the first train to. Parkersburg.

The only change made on the ticket was a slight pencil mark made by an employé of the company who, it seems, had no power to change or “fix it.” Conceding that the conductor was under no obligation to accept, as true, plaintiff’s statement that she paid $13.75, the fare from Newport News to Parkersburg, or to resort to any other source for explanation of the ambiguity, than was indicated by the ticket itself, we yet think that the ticket contained, upon its face, information which any reasonable man, under the circumstances, would promptly, and without hesitation, have resorted to and accepted as conclusive evidence of the extent of plaintiff’s right to travel on the train.

The letters “B..C.” punched through the ticket, were plain and of unmistakable meaning. It is attached to, and.made a part of, the declaration. It is but a reasonable construction of the ticket to treat the check as a part of the evidence of the contract of carriage and to construe them together. The contract to carry the plaintiff included the carriage of her baggage to the- same point, and that this was evidenced by the check referred to on the ticket and limited to the destination of the passenger was well known to the conductor.

The law imposed upon the defendant the duty to give to plaintiff, upon payment of the prescribed fare, a ticket for herself and check for her baggage, which entitled her to all of the rights and privileges of a passenger.' The possession of the check is evidence that she was entitled to go to Parkersburg as a passenger. Moore on Carriers, 548.

If, by reason of the negligence of defendant’s agent, the ticket was ambiguous or uncertain, it was the duty of the conductor to resort to any source of information on the- ticket to explain the ambiguity. “When, from the circumstances appearing on the face of the ticket and the surrounding circumstances known to the conductor, it. is probable that a. mistake has been made by the company issuing the ticket, and this probability is so strong that the conductor should, under the circumstances, investigate further before ejecting the passenger,” the ticket cannot be said to be invalid. Kreuger v. Ry.

Co., 68 Minn. 445, 71 N. W. 683, 64 Am. St. Rep. 487. An examination of the decided cases, cited by counsel, discloses facts distinguishable from those found in this record. In Pouilin v. Canadian Pac. R. R. Co., 52 Fed. 147, 3 C. C. A. 23, 17 L. R.

A. 800, Judge Taft says: “The plaintiff, before he went aboard the train from which he was ejected, discovered that the agent had made a mistake, and that he had not delivered him a ticket which, on its face, entitled him to return from Quebec to Detroit.” The plaintiff relied upon the statement of some person in the office of the ticket agent that the conductor would understand the mistake and make it all right.

While the learned judge, wilting for a majority of the court, states the rule that the face of the ticket is conclusive evidence to the conductor of the terms of the contract of carriage between the passenger and the company, plaintiff was not permitted to recover because of his contributory negligence, lie said: “As the conduct of the plaintiff, in attempting to ride on a ticket which he knew did not give him a right to do so was, in our view, negligence in law, ihe fact that ihe conductor was negligent could not affeet the proper standard of care on the part of the passenger.”