One who keeps a vicious bull tethered on his own land, knowing his viciousness, but within reach of a road which the public had been accustomed to use, although not a highway, is liable for an injury by the bull to a passer on the road.

A

CTION for death from an injury by a bull. The opinion states the case. The plaintiff had judgment below.

W. H. Munger, Ballard & Walton, and E. F. Gray, for plaintiffs in error.

L. W. Osborn, for defendant in error.

COBB, J. [Omitting other points.] The cause of action against the plaintiff in error (defendant in the court below) was for keeping and negligently and inefficiently tethering a certain vicious bull, known to be dangerous to mankind, near to a certain highway or path along which persons were accustomed to travel and pass. By which bull plaintiff's intestate, while lawfully passing along said highway, was attacked, gored and killed.

Glidden v. Moore.

The evidence is sufficient as to the vicious and dangerous character of the bull, owned and kept by plaintiff in error, which was well known to him. That on the day in question the bull was tethered by a rope, in which was a wooden swivel, near to but out of reach of the path leading across the land of plaintiff in error, and near by where said path crosses a small stream of water. That some time in the afternoon defendant in error's intestate and father, an old man sixty-three years of age, living on the adjoining farm, started from his residence on foot to go to the neighboring village on business; that his way to said village was along the said path; that toward evening he was found in a bruised, wounded, and dying condition, near the said path where it crossed the said small stream of water, at which time said bull, having loosed himself by breaking the said wooden swivel, was found standing in the water of said stream near the said path. The injured man died before ten o'clock that evening.

[Omitting other points]

The fourth and only remaining point urged by plaintiff in error is that the third and fifth instructions prayed by him should have been given. Said instructions were in the following words :

"3. It is not negligence nor want of ordinary care for a person to keep a vicious bull upon his own premises at a place remote from where other persons had a right to go.

“5. If you find from the evidence that the defendant, Solon I. Glidden, had notified Wm. B. Moore, the deceased, prior to the receiving of the injuries complained of, to keep off from his land, and not cross the same, and that the deceased, in violation of this notification, did go upon said land, at or near where the bull was, and in consequence thereof was attacked by said bull, and received the injuries complained of, then in that case plaintiff cannot recover."

The third instruction was properly refused, as it does not state the law correctly, nor is it applicable to the evidence in the case. It is negligence and want of ordinary care for a person to keep a vicious bull or other dangerous animal insecurely fastened upon his own premises at a place where other persons are known to go, whether they have a right to go there or not. 1 Thomp. Neg. 222, and cases there cited.

The same is true of the fifth instruction. If the plaintiff in error allowed the general public to use a road, though not laid out as a

Post v. Chicago and Northwestern Railroad Company. highway, across his land, and it was so used by the public for a long time, and the plaintiff in error insecurely tethered the said bull near the said road, knowing him to be vicious and dangerous, and the said bull broke his fastening and set upon and killed the deceased while passing along the said road, it would make no difference as to the liability of the owner of said animal that he had forbidden the deceased to use the said road. See authority above cited. Also id., p. 300 et seq.

We therefore reach the conclusion that there is no error in the record, and that the judgment of the District Court must be affirmed. Judgment affirned.

POST V CHICAGO AND NORTHWESTERN RAILROAD COMPANY.

(14 Neb. 110.)

Carrier-railway tickets at reduced fare — damages.

A railway company may lawfully issue tickets at reduced rates and impose the condition of non-transferability; but has no right to take up the tickets and exclude the transferee from the train under the condition that it may refuse to accept it. The measure of damages is the value of such a ticket.

A

CTION for unlawful exclusion from a railway train. The opinion states the case. The plaintiff had judgment and appealed.

John I. Redick and W. J. Connell, for plaintiff in error.

E. Wakeley, for defendant in error.

MAXWELL, J. On the 7th day of January, 1879, one John Tristas purchased in San Francisco a third-class ticket via the Central Pacific, Union Pacific, Chicago and Northwestern, Michigan Central, Canada Southern, N. Y., L. E. and Western railroad to Boston, the price paid being the sum of $66. This ticket contained the following conditions:

"Checks to be detached by conductors only. No stop-over privileges will be given on this ticket. Baggage checked only to destination. In consideration of this ticket being sold at a reduced price from the regular, full, first-class rate, I, the undersigned,

Post v

Chicago aud Northwestern Railroad Company.

hereby agree that it not be good for passage after Twenty (20) days from (and including) the date indicated by the agent's punch marks in the margin, and that I will go through to place of destination by the proper train and connecting trains; also that this ticket is not transferable' and shall become 'void' if not presented for passage on the trip for which sold, and that I failing to comply with this agreement, either of the companies may refuse to accept this ticket or any coupons (checks) thereof, and demand the full regular fare, which I agree to pay. "Signature,

"JOHN TRISTAS.

"Witness,

"H. P. STANSWOOD. "DAIGHMAN.

"F. H. GOODMAN,

"Gen'l Passr. and Ticket Ag't C. P. R. R."

The price of a first-class ticket at that time over the same route is shown to have been the sum of $140, but the proof fails to show the price of a second-class ticket, or whether unlimited transferable third-class tickets were issued or not, and if so the price of the same: Tristas seems to have gone no further than Omaha, and there transferred his ticket to one Hobbie. Within twenty days from the date of issue Hobbie sold the ticket to the plaintiff for the sum of $25, the price of a regular ticket of the same class being about $30. The plaintiff commenced his journey over the defendant road, but at Denison the conductor, in pursuance of directions from Council Bluffs, examined the ticket and inquired of the plaintiff if his name was Tristas.

In answer to the inquiry he frankly stated his name, and that he was not the original party to whom the ticket was issued. The conductor then put the ticket in his pocket, and informed the plaintiff that he must pay fare or leave the train. The plaintiff demanded the return of his ticket, which being refused, and the conductor insisting that he should either pay fare or leave, he left the train at that point. He then returned to Omaha, and commenced this action. On the trial of the cause, the jury returned a verdict for $31.70, upon which judgment was rendered. The plaintiff brings the cause into this court by petition in error.

The errors relied upon are that the court erred in giving certain iustructions, and in refusing those asked by the plaintiff.

Post v.

Chicago and Northwestern Railroad Company.

The instructions are as follows:

1. If you find from the testimony that the ticket in question in this case was a third-class or emigrant" ticket, which had been sold at a reduced rate to a person in San Francisco other than the plaintiff, and said ticket was by its terins not transferable, and the purchaser thereof in San Francisco, in part consideration of such sale at a reduced price, agreed that it should not be transferable, and you further find that the plaintiff purchased in Omaha from some person other than defendants or their authorized agent, and offered and attempted to use it as entitling him to passage from Omaha to Chicago on the defendant's road, and refused to pay his fare on the defendant's road and did not pay his fare, then the defendants were not under obligations to allow the plaintiff to ride upon such ticket, and upon such refusal to pay fare, had a right to require the plaintiff to leave the train, and he can recover no damages based on the fact that he was so required to leave.

2. The taking up of the plaintiff's ticket however was a wrongful act on the part of the defendants, for which they are liable to plaintiff.

3. The measure of damage to which the plaintiff is entitled for the taking of such ticket would be the value thereof, which would not exceed the price of a third-class or emigrant passage from Omaha to Boston with interest to the first day of this term.

Every railroad has a right to adopt rules and regulations for the management of its business, provided such rules are not unreasonable, are within the scope of the powers of the corporation, and are not in conflict with the laws of the State. Elwood v. Bullock, 6 Q. B. 383; Navigation Co. v. Pilling, 14 M. & W. 76; 1 Redf. on Rail. 95.

The question whether rules are reasonable or not is a mixed question of law and fact, and is to be determined by the jury under the instructions of the court. Day v. Owens, 5 Mich. 520; Jencks v. Coleman, 2 Sumn. 221; Bass v. C. & N. W. R. Co., 36 Wis. 450; s. c., 17 Am. Rep. 495; Thompson Carr. of Pass. 335.

In Day v. Owen it is said the reasonableness 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 properly be said to be in itself a fact to be adduced from other facts.

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