thereon, subject to reasonable regulations, is equally assured as upon the regular passenger trains.192 § 3155. But Subject to Reasonable Regulations Peculiar to that Branch of Service. But persons taking passage upon freight trains do so subject to any reasonable regulations which the railway company may make with reference to that peculiar branch of service. For instance, they are bound to keep in view the fact that the primary object of that service is the carriage of freight, and not of passengers, and that the convenience of the passengers must therefore be subordinated to the necessary movements and stoppages of the train, required in taking on and discharging freight. It follows that a regulation of a railway company that passengers on a freight train can not require the passenger coach attached to the train to be pulled up to the platform at stations, for the purpose of getting off, but may be compelled to get on or off at some other reasonable and safe place,-is reasonable.193 $3156. Such as Requiring Passengers to Purchase Tickets before Boarding the Train.-A very common regulation is that passengers, before going on board freight trains, shall procure their tickets at the company's office, and on failure to do so shall be expelled from the train. The reasonableness of a regulation of this kind is not denied;194 but in order that the company may be in a position to enforce such a regulation, it is necessary that proper facilities be provided for passengers to obtain their tickets, and that the ticket office of the company be open for a reasonable time previous to the departure of the train.195 For a person to board such a train without purchasing 192 Chicago &c. R. Co. v. Flagg, 43 Ill. 364; Hazard v. Chicago &c. R. Co., 1 Biss. (U. S.) 503; Mobile &c. R. Co. v. McArthur, 43 Miss. 180. 193 Connell v. Mobile &c. R. Co. (Miss.), 7 South. Rep. 344 (no off. rep.); Browne v. Raleigh &c. R. Co., 108 N. C. 34; s. c. 12 S. E. Rep. 958. 194 McCook v. Northup, 65 Ark. 225; s. c. 45 S. W. Rep. 547 (holding a rule reasonable which requires a conductor of a freight train to refuse to receive on his train at a ticket station, any person who has not provided himself with a ticket); Cross v. Kansas City &c. R. Co., 56 Mo. App. 664; Chicago &c. R. Co. v. Flagg, 43 Ill. 364; Cleveland &c. R. Co. v. Bartram, 11 Ohio St. 457; St. Louis &c. R. Co. v. Myrtle, 51 Ind. 566; Lake Shore &c. R. Co. v. Greenwood, 79 Pa. St. 373; Evans v. Memphis &c. R. Co., 56 Ala. 246; Kansas &c. R. Co. v. Kessler, 18 Kan. 523; Illinois &c. R. Co. v. Johnson, 67 Ill. 312; Toledo &c. R. Co. v. Patterson, 63 III. 304; Illinois &c. R. Co. v. Sutton, 42 Ill. 438; Illinois &c. R. Co. v. Nelson, 59 Ill. 110; Law v. Illinois &c. R. Co., 32 Iowa 534; Indianapolis &c. R. Co. v. Rinard, 46 Ind. 293: Brown v. Kansas City &c. R. Co., 38 Kan. 634; s. c. 16 Pac. Rep. 942; Southern &c. R. Co. v. Hinsdale, 38 Kan. 507; s. c. 16 Pac. Rep. 937. 195 St. Louis &c. R. Co. v. Myrtle, 51 Ind. 566; Evans v. Memphis &c. R. Co., 56 Ala. 246; Chicago &c. R. Co. v. Flagg, 43 Ill. 364; Illinois &c. R. Co. v. Johnson, 67 Ill. 312; Illinois &c. R. Co. v. Sutton, 42 III. 438; a ticket amounts to a refusal to pay fare, because it is in factarfsl to pay fare to the agent designated by the company to receive it! places the person in the attitude of a trespasser, and justifies his et pulsion, though without unnecessary force, and not at a place f bidden by statute.196 For the same reason, a railroad company justified in using such reasonable force as will prevent a passenge from getting on board a train, where he refuses to show his tit in compliance with a proper request made therefor, and with ar of the company requiring this to be done before the passenger boar the train.197 If it has been customary to receive passengers upe freight trains without requiring them previously to procure tickets the company's office, a person who has travelled upon these tr before the adoption of such a regulation, and indeed afterwards without objection by the company's servants for want of a ticket, can not be put off the train without proof of express notice to hir of the regulation requiring tickets to be purchased before enter the train. The posting of the new regulation in the station ho of the company, in such a case, is not notice sufficiently express Contrary to what has been elsewhere stated,199 it has been held that an intending passenger is not presumed to know of a regulation of a railroad company that passengers upon freight trains must prourtickets before starting, but that a knowledge of such a regulati must be brought home to him; so that if he gets on the train in ignorance of it, he is not to be deemed a trespasser until he is formed of it.200 But an announcement in the caboose of a freigt. train, before the train starts, that all persons that desire to ride uve the train must procure tickets before it starts, is sufficient notie of the rule of the company, and will justify the expulsion from th train of a passenger refusing to buy his ticket. 201 Where there such a regulation, a single instance of fare having been accepted' a conductor in violation of it will not justify a person in disregar ing it, in case previous notice of it has been given by posters in the station house.202 Moreover, where there is such a regulation company is bound to keep its ticket offices open a sufficient lengt of time before the departure of trains to enable intending passe Cross v. Kansas City &c. R. Co., 56 196 McCook v. Northup, 65 Ark. 225; s. c. 45 S. W. Rep. 547 (under the Arkansas statute, at a regular station only). 197 Illinois &c. R. Co. v. Louthan, 80 Ill. App. 579. 198 Lake Shore &c. R. Co. v. Greenwood, 79 Pa. St. 373. 199 Ante, § 3109. 200 Brown v. Kansas City &c. R Co., 38 Kan. 634; s. c. 16 Pac Rep 942. 201 Southern &c. R. Co. v. Hinsdale 38 Kan. 507; s. c. 16 Pac. Rep. 937. 202 Southern &c. R. Co. v. Hinsdale supra. on freight trains to procure tickets;203 and where this is not done, and, for this reason, an intending passenger on a freight train is unable to procure a ticket after making reasonable efforts to do so, and boards a train without a ticket,-if he is expelled therefrom, he will have an action against the company for damages.204 $3157. Rights of Persons so Boarding the Freight Train in Case of a Negligent Injury.-When, by the regulations of the company, passengers are forbidden to ride upon freight trains, and a person nevertheless does so with the knowledge of the conductor of the train, it is sometimes a question as to what are the rights of this person under these circumstances. In one case205 the facts were that the plaintiff was invited by the conductor of a coal train to ride upon. his train to a certain point, with a promise to get him employment as a brakeman. While making this journey, the caboose in which the plaintiff was seated was run into and demolished by a following train, on account of the negligence of the conductor of the coal train. In an action for injuries received by this accident, it appeared that there was a printed regulation of the defendants for the use of their employés, by which passengers were forbidden to ride upon coal trains, but of this the plaintiff had no actual knowledge. It did not appear that passengers were habitually or occasionally permitted to ride in the caboose. The court held that, as the conductor of the coal train acted wholly without authority in the premises, and in violation of express instructions, there was nothing in the foregoing circumstances which would imply the existence of the relation of carrier and passenger between the plaintiff and the defendant; hence, as the plaintiff was on the train without authority, he was there unlawfully, and could not recover for the injuries received. The foregoing decision is strictly in accord with the circumscribed views of the courts of the State of New York in regard to the scope of a servant's authority, and the immunity of the master from liability for the results of acts for the doing of which the servant was not hired.206 But as courts in general are not disposed thus to limit 233 Ante. § 2610; Brown v. Kansas City &c. R. Co., 38 Kan. 634; s. c. 16 Pac. Rep. 942; Southern &c. R. Co. v. Hinsdale, 38 Kan. 507; s. c. 16 Pac. Rep. 937. 204 Cross v. Kansas City &c. R. Co., 56 Mo. App. 664. It has been held that if the ticket agent is absent when the intending passenger seeks to purchase his ticket, he is not put in the wrong by reason of the fact that he fails to ask for a ticket from a mere office boy in the ticket office: Cross v. Kansas City &c. R. Co., 56 Mo. App. 664,-a conclusion which certainly seems untenable, provided the office boy was left there to sell tickets in the absence of the regular agent. 205 Eaton v. Delaware &c. R. Co., 57 N. Y. 382. 206 Isaacs v. Third Avenue R. Co., 47 N. Y. 122; Parker v. Erie R. Co., 5 Hun (N. Y.) 57. the responsibility of the master for the acts of his servant, it will not be surprising to find that a contrary opinion is entertained unc this question. Thus, the Supreme Judicial Court of Maine hare held that where a person enters the "saloon-car" [caboose?] of freight train, and, after the train has started, remains there, with being requested or directed to leave by the conductor, who receive from him the usual fare of a first-class passenger, such person is to be regarded as a passenger, and the corporation incurs the same liality for his safe transportation as if he were in the regular passenger coaches at the time of the injury, although the regulations of the defendant prohibit the carrying of passengers upon freight traits The court said: "The regulations of the defendant corporation arbinding on its servants. Passengers are not presumed to know them Their knowledge must be affirmatively proved. If the servants of the corporation, who are bound to know its regulations, neglect or violate them, the principal should bear the loss or injury arising from such neglect or violation, rather than strangers. The cor poration selects and appoints its servants, and it should be respotsible for their conduct while in its employ."20s To the same eže is a decision of the Supreme Court of Pennsylvania.209 These last two cases would seem to express the better view of this question, and they have the support of authority in analogous cases.210 § 3158. Compelling Stockman to Ride in Caboose.—A regulation of a railroad company, that persons given free passage while I charge of live stock shall remain in the caboose attached to the train. is reasonable.2 211 Such a regulation may be waived even where it's embodied in the written contract of transportation on which the passenger is riding, by the railroad company, through the act of its conductor in consenting that the passenger may ride elsewhere.— as, where the passenger is accompanying a horse, that he may r in the car with the horse.212 207 Dunn v. Grand Trunk R. Co., 58 Me. 187; s. c. Thomp. Carr. Pass. 328. 208 Dunn v. Grand Trunk R. Co., 58 Me. 187, 192. 200 Creed v. Pennsylvania R. Co., 86 Pa. St. 139. See also Lawrenceburgh &c. R. Co. v. Montgomery, 7 Ind. 474; Lucas v. Milwaukee &c. R. Co., 33 Wis. 41. 210 Lackawanna &c. R. Co. v. Chenewith, 52 Pa. St. 382; Wilton v. Middlesex R. Co., 107 Mass. 108; s. c. 125 Mass. 130; O'Donnell v. Allegheny 211 Tuley v. Chicago &c. R. Co. Mo. App. 432. 212 Missouri &c. R. Co. v. Cook. !! Tex. Civ. App. 203; s. c. 33 S. W Rep. 669; rehearing denied in 34 S. W. Rep. 178 (no off. rep.). CHAPTER XCVI. LIABILITY OF THE CARRIER FOR MALICIOUS TORTS COMMITTED AGAINST PASSENGERS BY THE CARRIER'S SERVANTS. ART. I. In General, §§ 3162-3181. ART. II. Liability of Carrier for Assaults upon and Insults to Passengers, $$ 3184-3191. ART. III. Liability of Carrier for Ejection of Passenger, §§ 31953269. SUBDIV. 1. Grounds of Action for Wrongful Ejection, §§ 3195-3204. SUBDIV. 3. Expulsion of Passengers for Causes Connected with SUBDIV. 4. Time, Place and Manner of Expelling Passengers, §§ 3244-3258. SUBDIV. 5. Questions of Procedure in Actions for Expulsion of P23sengers, §§ 3262-3269. ART. IV. Liability of Carrier for Arrests of Passengers, §§ 32723281. ART. V. Damages Recoverable by the Passenger for Expulsions, Assaults, Insults, and Other Positive Wrongs, $$ 3285-3298. 3164. Further reasons for applying 3168. Enough that the servant acts the modified doctrine to such carriers. 3165. Further of this subject. 3166. The same subject continued. within the scope of his employment, though in violation of his duty to the carrier. |