As applied to a regulation of a carrier of passengers, if it is unreasonable the passenger is not bound to comply with it; but he may refuse compliance, stand on his rights, and appeal to the judic courts.31 9935 34 33 § 3108. Confusing Theories on this Question.-Judicial opinion has not, however, been uniform upon the question whether the reasonableness of the regulations of a carrier of passengers is a questi of law, or a question of fact. By some courts it is held to be a question of fact,32 by others a mixed question of law and fact, an by others a question of law. Thus, it is said: "The reasonable ness of a rule or regulation is a mixed question of law and fact, to be found by the jury on the trial, under the instructions of the court. It may depend on a great variety of circumstances, and may not inproperly be said to be in itself a fact to be deduced from other facts It is not to be inferred from the rule or regulation itself, but must be shown positively." "There are strong reasons why the reasonableness of railroad regulations should, in the absence of any positive proof as to their effect, be submitted to the court as a question of law. rather than to the jury as one of fact. Ordinarily, jurors are not aware, nor can they readily be made aware, of all the reasons calling for the rule. They are apt to listen readily to any allegations of injuries on railways. What one jury might deem an inconvenient rule. another might approve as judicious and proper. There would be to uniformity." There is great force in this last utterance; and though there is some authority to the effect that it is a mixed question of l and fact, yet the weight of judicial opinion and of reason makes it a question of law, as stated in the preceding section. 37 9936 ro § 3109. To what Extent Passengers Chargeable with Notice of Carrier's Regulations. 3-We have already had occasion to note the close resemblance, if not the substantial identity, subsisting between what is usually called a by-law of a private corporation and a regu St. 368; s. c. 45 Am. Rep. 383; Commissioner v. Northern Liberties Gas Co., 12 Pa. St. 318; Fisher v. Harrisburg, 2 Grant Cas. (Pa.) 291; Dayton v. Quigley, 29 N. J. Eq. 77; 1 Dill. Mun. Corp., 4th ed., §§ 319, 320, 321. 31 Central R. &c. Co. v. Strickland, 90 Ga. 562; s. c. 52 Am. & Eng. Rail. Cas. 216; 16 S. E. Rep. 352. 32 State v. Overton, 24 N. J. L. 435. 33 Day v. Owen, 5 Mich. 520; s. c. Thomp. Carr. Pass. 306; Jencks V. Coleman, 2 Sumn. (U. S.) 221; s. c. Thomp. Carr. Pass. 11; Du Lauraus v. St. Paul &c. R. Co., 15 Minn. 49: Bass v. Chicago &c. R. Co., 36 Wis 450; s. c. Thomp. Carr. Pass. 311. 34 Hibbard v. New York &c. R. Cc. 15 N. Y. 455, 459; Vedder v. Fellows 20 N. Y. 126. $5 Per Manning, J., in Day v. OWEL 5 Mich. 520, 527; s. c. Thomp. Carr. Pass. 306. 36 Per Strong, J., in Vedder v. Feb lows, 20 N. Y. 126, 131. 37 1 Redf. Rail., 6th ed., p. 82. 39 lation of an incorporated common carrier. Keeping in mind this resemblance, and resorting to decisions of the courts with reference to corporate by-laws for the elucidation of the question before us, it is now proposed to consider to what extent the regulations adopted by a common carrier of passengers for the conduct of his business, will be binding upon his passengers; and here the true distinction is believed to be that regulations directly affecting the passenger, such as regulations requiring him to purchase a ticket before entering upon the transit, or regulations as to the running and stopping of trains, enter, in a sense, into the contract of carriage, and affect his rights, although he may not have known of them,-provided they have been reasonably published, so that he might have learned of them by the exercise of due diligence; whereas regulations which operate merely upon the servants of the carrier, prescribing the manner in which they shall discharge their duties, do not affect the rights of passengers who have no notice of them."1 Passengers are neither presumed nor required to know the rules and regulations made by a railway carrier for the guidance of its conductors and other employés, as to the internal affairs of the company,42 nor the secret instructions which such a carrier gives to its conductors; but, in contracting with such a carrier, they have the right to rely upon the statements made by its agents as to its rules and regulations. 43 § 3110. Analogous Doctrine in Regard to Corporate By-laws and Ordinances. There are cases to the effect that a corporate by-law is binding on third persons doing business with the corporation, who Ante, § 3105. * Pennsylvania Co. v. Whitcomb, 111 Ind. 212; s. c. 12 N. E. Rep. 380; Southern &c. R. Co. v. Hinsdale, 38 Kan. 507; s. c. 16 Pac. Rep. 937; Lake Shore &c. R. Co. v. Kelsey, 180 III. 530; s. c. 54 N. E. Rep. 608; aff'g s. c. 76 Ill. App. 613. For example, it is the duty of a person about to take passage on a railroad train to inform himself as to when, where, and how he can go or stop, according to the regulations of the company: Atchison &c. R. Co. v. Gants, 38 Kan. 608; s. c. 17 Pac. Rep. 54. So, if a passenger disregards regulations adopted by the company, as to the purchase of tickets or the running of trains, by failure upon his part to make any inquiries, and such neglect is not induced by the company's agent, having authority in the matter, the com South pany is not liable therefor: 41 Lake Shore &c. R. Co. v. Brown, 123 Ill. 162; s. c. 14 N. E. Rep. 197; Edgerton v. Baltimore &c. R. Co., 6 App. (D. C.) 516; s. c. 23 Wash. L. Rep. 369. In this case a train was run past a station, while another was discharging its passengers. There was a rule of the company forbidding this. It was held that this rule would not absolve the company from liability to a passenger injured through its violation. 42 New York &c. R. Co. v. Winter, 143 U. S. 60; s. c. 36 L. ed. 71; 11 Rail. & Corp. L. J. 146; 12 Sup. Ct. Rep. 356; Hanson v. Mansfield &c. R. Co., 38 La. An. 111; Dunn v. Grand Trunk R. Co., 58 Me. 187. 43 Georgia &c. R. Co. v. Murden, 86 Ga. 434; s. c. 12 S. E. Rep. 630. 44 have knowledge of the by-law. But it is suggested that this prin ciple can operate no further than this: Where the third person who deals with the corporation knows of its course of business, and follows a prescribed regulation which it has enacted for the conduct of its business, it will be presumed, in the silence of his contract with the corporation, that it was made with reference to such known course of business, exactly as, in the silence of a contract, a known custom may be presumed to enter into it and to form a part of it. This principle is also operative in respect of those public regulations of corporations which assume public duties to be performed toward the members of the public distributively, such as incorporated common carriers. In these cases, as elsewhere suggested, 45 the incorporated carrier may make and enforce, as against the members of the public who deal with it, reasonable regulations; and those regulations, wher known to such third persons, will be binding upon them. For ex ample, a regulation of a railway company touching the carriage of passengers, when known to a passenger, will be binding upon him. This principle may also operate in respect of the by-laws, called ordinances, of municipal corporations, which, within the incorporated territory, have the effect of laws, governing all persons upon whom they operate by their terms, provided they are valid and legal, in conformity with the principles heretofore stated. But, with the erception of these cases, it must be constantly kept in mind that the primary conception of a by-law of a private corporation is that it is a mere rule for the determination of the rights of the members inter sese, and for the government of the officers of the corporation in conducting the corporate business; and that it can have no effect as å law upon other persons, and can have no influence upon contracts between the corporation and other parties, except as above stated.“ A third party can enforce them only when he shows some prirityas where he has advanced money, or other value, upon the credit of a corporate by-law, or the like. Accordingly, a by-law of a bark. that all payments made and received must be examined at the time. does not prevent a party dealing with the bank from showing afterwards that there was a mistake in his account of deposits and receipts. The fact that the by-laws of a corporation express an individual liability of members for company debts, and that each mem 49 48 44 Cummings v. Webster, 43 Me. 192. 197. Contra, State v. Overton, 24 N. J. L. 435, 440. 45 See 1 Thomp. Corp., § 937. 46 Mechanics' &c. Bank v. Smith, 19 Johns. (N. Y.) 115, 124; Flint v. Pierce, 99 Mass. 68; s. c. 96 Am. Dec. 691. 47 Samuels v. Central &c. Ex. Co. McCahon (Kan.) 214. 48 Flint v. Pierce, 99 Mass. 68; s. c. 96 Am. Dec. 691. "Mechanics' &c. Bank v. Smith, ber subscribed the by-laws merely to become a member, is not enough to sustain an action by a creditor of the company against a member for the amount due: he must at least show that he gave credit, or parted with value, on the faith of the by-laws having been so drawn up and signed by the members.50 § 3111. When such Knowledge does not Excuse Negligence of Passenger. A rule of a railroad company requiring approaching trains to stop until a train standing at a station has cleared the station, does not absolve a passenger, even though he knows of the rule and relies upon its observance by the company's employés, from the duty of exercising ordinary care for his own protection.51 § 3112. Posting of Rules and Regulations in the Cars.— Where a conductor is proved to have pointed out to a passenger, posted up in the car, the regulations of the company, and explained to him that he was required to collect from passengers riding in that car an extra charge, this is sufficient to show that the requirements of a statute,52 relating to the posting of rules and regulations in cars, were complied with.53 A railway company does not discharge its obligation to its passengers by posting a notice in its cars of a certain rule as to leaving cars on a side specified, if it permits the rule to be habitually disregarded." 54 § 3113. Carrier must Afford Passenger a Reasonable Opportunity to Comply with Regulations.-The carrier must afford the passenger a reasonable opportunity to comply with his regulations; otherwise he can not enforce them. Thus, if he has a regulation requiring the passenger to purchase a ticket before entering his vehicle, he must keep the ticket office open for a sufficient length of time to enable the passenger to do so.55 § 3114. Power of Station Agents to Establish Regulations.Station agents have the power, and it is their duty, as incident to their 50 Flint v. Pierce, 99 Mass. 68; s. c. 96 Am. Dec. 691. 51 Chaffee v. Old Colony R. Co., 17 R. I. 658; s. c. 24 Atl. Rep. 141. Compare Edgerton v. Baltimore &c. R. Co., 6 App. (D. C.) 516; s. c. 23 Wash. L. Rep. 369, where a passenger standing on the edge of a station platform was struck by a train running at the rate of fifty miles an hour and which could have been seen for about a mile. office, to make lawful and reasonable regulations as to the cordat of business at their stations, unless restricted, controlled, or limited in that respect by the company.56 58 § 3115. Effect of the Habitual Violation of its Rules by the Carrier.57—Clearly, a carrier of passengers can not hold the public to the observance of a rule which it habitually violates in the face of the public; a habitual or customary violation of a rule by the car, through its servants, may justly be treated by the public as an abandonment of the rule. The rule can not be relaxed or abandoned by the carrier when it shall suit its purpose to do so, and enforced against a particular passenger when it shall suit its purpose to do that. It is either a rule or not a rule, accordingly as the author of the rule treats it and enforces it. If it is habitually relaxed, the public have the right to act upon the assumption that the carrier has elected to abandon it, and this raises a species of estoppel against the carrier from enforcing it against a particular member of the public where the carrier has injured him, or against his personal representative where it has killed him. Difficulty arises in applying this principle to the facts of particular cases, and in determining, upon those facts. whether the rule ought to be treated as having been in force and as governing the conduct of the passenger at the time of the particular accident or incident, or whether it ought to be treated as having been abandoned. Where the action was to recover damages for the negligence of defendant towards the husband of the plaintiff while riding on a freight train of the defendant, and the plaintiff alleged in her petition that the rule of the defendant forbidding the carrying of passengers on its freight trains was habitually violated,—it was held that evidence tending to show that persons had so ridden, at times varying from six months to three years before the accident, was admissible." It seems that the question whether there have been such repeated and consecutive violations of such a rule as to amount to an abandonment of the rule, so that a reasonably prudent person might be justified in acting upon that presumption, presents a question of fact for the jury.60 Smith v. Chamberlain, 38 S. C. 529; s. c. 19 L. R. A. 710; 32 Am. L. Reg. 747; 17 S. E. Rep. 371. 57 This section is cited in § 2815. 68 Dublin &c. R. Co. v. Slattery, L. R. 3 App. Cas. 1155; Chicago &c. R. Co. v. Lowell, 151 U. S. 209. 59 San Antonio &c. R. Co. v. Lynch (Tex. Civ. App.), 55 S. W. Rep. 517. 60 Hence, it was held error for the court to instruct the jury that a particular state of facts would author ize the belief that the rule had been abrogated, or had been permitted to fall into disuse; but the issue should have been left to the jury: San Antonio &c. R. Co. v. Lynch (Tex. Civ App.), 55 S. W. Rep. 517. In the same case, it was also held that eridence of such violations of the rules of the company, subsequently to the accident, was not admissible, except as tending to furnish an excuse to the plaintiff's husband for acting |