§ 2615. Meaningless Conditions in Tickets.-A condition in a railroad ticket as to travelling "via direct line," is meaningless and will be rejected in a suit for ejection of the passenger, where each of three possible routes is circuitous, although one is shorter than the others.303

§ 2616. Commutation, Coupon and Round-trip Tickets.-A stipulation in a commutation book, or book of railroad tickets, that coupons therefrom are not good if detached, is a reasonable condition;30+ and the same rule would undoubtedly hold good in the case of the ordinary coupon ticket which is sold by one railway company for a continuous passage over its own line and other connecting lines. But it has been held that an excursion ticket having the words "Not good for passage," on the going part of the ticket, and the words "if detached" on the returning part, is valid when both parts are presented together at the same time, to the same conductor, on the going trip, although the parts have become separated by inadvertence.305 But where a passenger attempts to use the return part of a round-trip ticket before using the going part, this does not authorize the conductor to demand that he surrender the whole ticket, nor justify a conductor in refusing to accept the return part, when detached by the passenger in his presence, although the other part is marked "Not good if detached," and may be worthless.300 The condition that the coupons of a railway commutation ticket will not be good if detached, is one which may be and is waived by the habitual action of the company; and where the condition has been customarily disregarded by the conductor, a passenger who has taken only a detached coupon is entitled to have it accepted, unless reasonable notice of an intended revocation of the waiver has been given; and this can not be first given on the presentation of such coupon.307 The mere fact that a railroad company has been accustomed, on a given. day in each week, to sell round-trip tickets between two stations along its line of road at a rate of fare below the maximum rate fixed by law, does not entitle a person, who fails to procure such ticket by reason of the fact that the agent is absent and the ticket office is

limitation, then it has been held to be the duty of the conductor to accept as true the statement of the passenger that it has not expired, in the absence of knowledge to the contrary: Houston &c. R. Co. v. Crone, supra.

503 Dancey v. Grand Trunk R. Co., 19 Ont. App. 664; s. c. 52 Am. & Eng. Rail. Cas. 181.

304 Norfolk &c. R. Co. v. Wysor, 82 Va. 250.

305 Whightman v. Chicago &c. R. Co., 73 Wis. 169; s. c. 40 N. W. Rep. 689; 2 L. R. A. 185.

306 Chicago &c. R. Co. v. Holdridge, 118 Ind. 281; s. c. 20 N. E. Rep. 837. 307 Thompson Truesdale, 61 Minn. 129; s. c. 63 N. W. Rep. 259.

V.

closed, to be carried the round trip between such stations upon a tender to the conductor of the fare which the company has been in the past accustomed to charge. The closing of the ticket office is prima facie evidence that the company intended to abandon its custom, which it had a right to do; and, in the absence of facts showing that such was not its intention, such custom can not be relied on to constitute a contract of carriage at the reduced rate which the company was formerly in the habit of charging.308 The conductor has the right to determine from what part of a railroad mileage book the coupons to pay the passenger's fare shall be taken, under a provision of the contract annexed to the book, that the coupons shall be detached by the conductor; and the taking of coupons from a different part of the book than that indicated by the passenger does not constitute a conversion of the book.309

§ 2617. Rights of Persons Travelling on Free Passes.310_The high degree of care which the law puts upon carriers of passengers extends to the protection of persons travelling lawfully, although gratuitously, or by invitation, upon the vehicle of the carrier, so that any negligence of the carrier, or of his servants, whereby such a person is injured, may well deserve the epithet of gross.311 It is therefore easy to conclude that a railroad company is liable for an injury to a person travelling on a free pass arising from gross negligence,312 a subject considered in a future chapter.313 Upon the question. whether a stipulation contained in a pass issued to a person as a mere gratuity, which exempts the carrier from liability for injury to the holder of the pass under any circumstances, whether it proceeds from the negligence of the carrier or his agents or otherwise, is valid, there is a difference of judicial opinion. One view is that the recipient of such a pass may agree with the donor of it that he will stand in the position of a bare licensee, and that such a condition will hence be binding upon him.814 But, as a railroad company is liable to a tres

208 Johnson v. Georgia R. &c. Co., 108 Ga. 496; s. c. 34 S. E. Rep. 127. Eaton v. McIntire, 88 Me. 578;

s. c. 34 Atl. Rep. 525.

7 Wash. 528; s. c. 22 L. R. A. 794; 35 Pac. Rep. 422. In New Jersey a person using a pass as a gratuity can not recover against the carrier

10 This section is cited in §§ 3328, for such injuries, though such in3492.

311 Philadelphia &c. R. Co. V. Derby, 14 How. (U. S.) 468; Steamboat New World v. King, 16 How. (U. S.) 469.

312 Illinois R. Co. v. O'Keefe, 63 Ill. App. 102.

313 Post, § 2720, et seq.

14 Muldoon v. Seattle City R. Co.,

VOL. 3 THOMP. NEG.-6

juries are caused through the negligence of the carrier's servants: Camden &c. R. Co. v. Bausch (Pa.), 6 Cent. Rep. 121 (no off. rep.); decided on the authority of Kinney v. Central R. Co., 34 N. J. L. 513, where numerous authorities sustaining this ruling are cited.

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passer or a mere licensee for a willful or wanton injury;315 or for an injury which is special to him, and which proceeds from a want of ordinary or reasonable care after his discovery by the servants of the carrier in a position of dangerous exposure,—it is difficult to say on what ground any contract which a person riding on a carrier's vehicle may make, ought be held to release the carrier from liability for such an injury. The other view is that a common carrier of passengers, employing the powerful but dangerous agency of steam, can not relieve himself by any contract from his duty to exercise the greatest possible care and diligence to secure the safety of his passengers; and the fact that a passenger when injured is travelling on a free pass, by which he assumes all the risk of accident or damage, whether occurring from negligence or otherwise, is no defense to an action to recover for an injury on the ground that it was caused by the negligence of the company or its employés.316 This rule was applied to an employé of a railroad company who was injured while travelling on business of his own, on an employés' pass, which contained a stipulation exempting the railway company from liability for the negligence of its agents or otherwise. It was held that he was a passenger, and that an action to recover for the injury visited upon him was governed by the principles applicable to the relation of carrier and passenger, and not by those applicable to the relation of master and servant; and that the stipulation relieving the railway company from liability for negligence would not be enforced. against the plaintiff, although he voluntarily assented to it.817

216 Farmers' Loan &c. Co. v. Baltimore &c. R. Co., 102 Fed. Rep. 17; Vette v. Harmon, 102 Fed. Rep. 17.

317 Whitney v. New York &c. R. Co., 102 Fed. Rep. 850. A mere statement made to a railway employe, by an official of the company, in giving him a pass, that in riding upon it he waived all right of action against the company in case of injury, was held not to relieve the company from liability for future acts of negligence in relation to such employé while he was being transported home from work without any pass or special agreement: Pendergast v. Union R. Co., 41 N. Y. Supp. 927; s. c. 10 App. Div. 207. Upon the question what is a free pass, it has been held that an annual pass from a railroad company to a railroad policeman travelling over the lines of the company in the

discharge of his duties as such, and receiving as compensation therefor a specified sum and such pass, which he can use in his private as well as in his official business, is not a "free pass" within the meaning of N. Y. Const., art. 13, § 5, prohibiting any public officer from receiving any such pass: Dempsey v. New York &c. R. Co., 146 N. Y. 290; s. c. 66 N. Y. St. Rep. 651; 40 N. E. Rep. 867. It has been held that the use over railroads of free passes signed by the Secretary of State, under statutory authority, by public officers while engaged in the public business, is not prohibited by N. Y. Const. 1895, art. 13, § 5, prohibiting any public officer from receiving "for his own use or benefit" any free pass: Re Railroad Comrs., 11 Misc. (N. Y.) 103; s. c. 32 N. Y. Supp. 1115; 66 N. Y. St. Rep. 570.

§ 2618. Actions by Railroad Companies against Passengers to Recover Fares.-Actions of this kind are very unusual; but one case is found where a railroad company was so small as to bring an action against a passenger to recover the fare for a transit of a few miles, in which action the railroad company succeeded in recovering the sum of forty-eight cents. The defendant was the holder of a season ticket over the road of the plaintiff, and, by a mistake, in which he appears to have been aided by the gate-keeper of the plaintiff, got upon a train which did not regularly stop at the station which was his destination. The ticket contained the words "good only for passage on train which stops regularly at the station named." The train did not stop regularly at the station named, which was Walpole, but stopped at Franklin, which was the next station beyond. The conductor refused the coupon, on the ground that, as the train did not stop at Walpole, the ticket was not good on that train, and demanded the fare to Franklin, which the passenger refused to pay. The conductor did not eject the passenger, but merely reported the matter to the company; and the great and powerful corporation brought an action against the passenger to recover fare from Boston to Franklin. The evidence showed that at Walpole, the station called for by the ticket, the railroad crossed another at grade, and that, because of the grade crossing, the train stopped about five hundred feet from the station. The evidence also showed that on two other occasions conductors of this train had accepted the defendant's coupon, and that he had alighted when the train so stopped. The railroad company recovered a judgment for forty-eight cents, which was the fare to Walpole, but did not recover anything for carrying the defendant from Walpole to Franklin. This judgment was affirmed. So far as the writer can see, the only questions of law ruled in this case were that the fact that the conductor of the particular train had, on two previous occasions, taken up the coupons for the passage to Walpole, did not amount to a waiver of the provision of the season ticket; and that the defendant could not avail himself of the rule that a passenger who, by mistake, takes a wrong train, is not subject to pay for his ride to the first station at which he has the opportunity to alight, as a defense to the action.318

§ 2619. Other Holdings Relating to Railway Tickets.-Where the plaintiff sues for damages for a wrongful ejection from a train upon which he was travelling on a mileage ticket, and the defendant pleads that the ticket was issued upon the condition of which plaintiff

218 New York &c. R. Co. v. Feely, 163 Mass. 205; s. c. 40 N. E. Rep. 20.

had notice, that it was not available over that portion of the road upon which he was travelling, evidence that the defendant had sold. the same kind of ticket to another person about the time of the sale to plaintiff, and that such ticket was used without objection by the company, is inadmissible.319 The fact that one conductor accepts less than the regular fare from a passenger, does not preclude another conductor on the same train from subsequently demanding the proper fare 320

2626. Assent of passenger to condi- 2628. Waiver of conditions in pastions in such contractstheory under which assent presumed.