Peterson v. Chicago, etc., Ry. Co by cross-examination or otherwise. Two witnesses swore the animals were watered at Sioux Falls and Hudson. One witness swore 19 of them were dead when the car reached the stockyards. The latter fact can be ignored as easily as the former. It is usually cooler at night than in the daytime. It does not appear that this night was exceptionally warm. Blookington says the following morning was "warm, hot." What one person considers hot may be regarded as cool and comfortable by another. Where weather conditions are exceptional, the impressions of witnesses may be given in general terms, but reliable testimony concerning temperature can be expressed only in degrees as observed by the witness or recorded by signal service officers. The best evidence should always be produced, or its absence accounted for. Where thermometers are so plentiful and signal stations so numerous as they are in this age and country, courts and juries should not be required to depend upon loose expressions of opinion, unless it appears that resort to more reliable sources of information is impracticable. No attempt was made to show how often the animals should have been watered while in transit. In the absence of evidence to the contrary, it should be assumed that defendant's employees did their duty-that they watered the hogs as often as the circumstances required. Negligence cannot be presumed. So we say there was no evidence which justified. the conclusion that ordinary care was not taken of the stock while in transit on defendant's lines. And there is another respect in which the evidence is insufficient. Excluding the testimony of defendant's employees, and giving full force and effect to plaintiffs' evidence, it is not shown that defendant's failure to water the stock while in transit was the proximate cause of the loss. The record discloses no effort to discover such cause by an examination of the animals or otherwise. Under the special contract defendant was not liable if death resulted from smothering, or arose from the condition of the stock. When unloaded the hogs were "hot," 19 of them were dead, and the car was dry. That is all we know, all the jury knew. What caused the hogs to die? Smothering, some latent. disease, or failure to "wet them down"? There was not a scintilla of evidence from which any fair-minded person could determine to which of these causes the loss should be ascribed. The burden was upon the plaintiffs to establish facts from which the jury might legitimately infer that failure to water the stock was the proximate cause of death. The evidence did not need to be direct and positive, but it should have been such as to justify reasonable men in finding that death resulted from the alleged cause. Mere probability was not enough. Facts and circumstances should have been shown sufficient to convince fairminded men without resort to conjecture or uncertain and inconclusive inference. Harrison v. Railway Co., 6 S. D. 100, 60 N. W. 405. The judgment is reversed, and a new trial ordered. ELLIOTT V. SOUTHERN PAC. Co. (Supreme Court of California, Nov. 25, 1904. On Rehearing, Dec. 24, 1904.) [79 Pac. Rep. 420.] Ejectment of Passenger-Acceptance of Ticket Offer to Pay Fare -Insufficiency of Evidence. In an action against a railroad for the wrongful ejection of a passenger, evidence held insufficient to support findings that the conductor received plaintiff's ticket as entitling him to travel, or without notifying him that it was of no value, or that plaintiff intimated in any way that he would pay his fare or present a valid ticket if the ticket which was taken up should be returned. Excursion Tickets — Extension of Time Limit-Reasonableness.— Where a railroad sold special excursion tickets limited to three days, which expired on July 6th, and could not be used within the prescribed time, owing to a strike and interruption of train service, an extension of the time limit for six days from July 13th was a reasonable period of extension; nor was it rendered unreasonable, as to a particular passenger, by reason of his having no occasion to use his ticket until August 13th. Same Time Limit.*—A_railroad may limit the time within which a ticket sold at reduced rates may be used. Same Same-Delay Caused by Strike-Rights of Ticket Holder.† -The fact that a railroad which sold limited return-trip tickets failed, owing to a strike, to carry the passengers on the return trip within the period prescribed by the ticket, and thereby put them to the trouble, inconvenience, and expense of returning by other means, while it might give rise to liability for damages proximately caused by its failure to perform its contract according to its terms, did not give the passengers the right to enforce a passage under the original contract, and on another journey taken by them within a reasonable time subsequent to the time specified in the contract. Same Same-Fraud-Rights of Ticket Holder.-Fraudulent concealment by a railroad company of the fact that it might not be able to carry a passenger on his return trip within the time prescribed in a ticket which is sold to him does not give the passenger a right to use the ticket at a time subsequent to that limited in the contract, and thereby make a new and different contract. Same Same Same Statute.-Under Civ. Code, § 1568, providing that consent to a contract is deemed to have been obtained through fraud only when it would not have been given, had fraud not existed, concealment by a railroad ticket agent of the fact that the railroad might not be able to return a passenger within the time limited by the ticket sold him is not such a fraud as to vitiate the contract, where it is not shown that, if the passenger had known the fact so concealed from him, he would not have purchased his ticket. Same Same-Waiver.‡-A statement by a railroad employee, two days after the sale of a ticket, that it would be good as soon as trains *As to the validity of stipulation fixing time for expiration of ticket, see extensive note appended to Walker v. Price (Kan.), 20 Am. & Eng. R. Cas., N. S., 432. As to the damages recoverable for refusal or failure to carry a passenger, see foot-note appended to Schmidt v. Cleveland, etc., Ry. Co. (Ky.), 12 R. R. R. 149, 35 Am. & Eng. R. Cas., N. S., 149. As to the authority of employees to waive conditions on ticket, see note, 20 Am. & Eng. R. Cas., N. S., 440. Elliott v. Southern Pac. Co began to run, was not a waiver of the time limit on the ticket, where the employee making the statement was not the one who sold the ticket, and he was not shown to have any authority to make the waiver. Ejectment of Passenger-Expiration of Ticket-Refusal to Pay Fare. Under Civ. Code, §§ 487, 2188, providing that a passenger who refuses to pay his fare or exhibit or surrender his ticket when reasonably requested so to do may be ejected, a passenger who exhibited a limited ticket, which had expired and was void, and refused to pay his fare, was properly ejected, although the conductor wrongfully retained the void ticket presented by the passenger. Department 1. Appeal from Superior Court, Alameda County; John Ellsworth, Judge. Action by Samuel W. Elliott against the Southern Pacific Company. From a judgment for plaintiff, and from an order denying a new trial, defendant appeals. Reversed. A. A. Moore, for appellant. ANGELLOTTI, J. Defendant appeals from a judgment rendered in favor of plaintiff for the sum of $700, and from an order denying its motion for a new trial. The action was for damages alleged to have been suffered by plaintiff by reason of his alleged wrongful and forcible expulsion from a train of defendant on August 13, 1894, on which train, it was alleged, the plaintiff was a passenger. The case was tried without a jury. The record shows the following facts: On August 13, 1894, the plaintiff boarded defendant's train at the Oakland Pier, Alameda county, for the purpose of being transported thereon to Pleasanton, in the same county. He presented to the conductor for his passage on such train a round-trip ticket, "From Pleasanton to San Fran. and return," which he had purchased from defendant's ticket agent at Pleasanton on July 3, 1894, at a reduced rate, to wit, one fare for the round trip, viz., $1.10, and which he had used on July 3d in traveling from Pleasanton to San Francisco. This ticket was distinctly marked upon its face, "Void after July 6, 1894," and this limitation, and the fact that the ticket was sold at a reduced rate, were known to plaintiff at the time he purchased the ticket. The conductor at once handed the ticket back to plaintiff, informing him that it was no good; that it had expired. The plaintiff told the conductor that he thought he was entitled to ride on it; that he had bought and paid for it; and that it was no fault of his that he had not ridden on it. The conductor then left the plaintiff, but, returning presently, said, "Let me see that ticket," and, upon plaintiff handing it to him, said, "That is no good," and put it in his pocket. He further said, "You will either have to pay your fare or get off the train at San Leandro." Plaintiff said, "Then give me back my ticket." The conductor said, "Well, I will look out for that ticket." When near San Leandro, he returned and said, "Now you will have to get off here or pay your fare." The plaintiff said, "I don't propose to do Elliott v. Southern Pac. Co either until you give me back my ticket." The conductor said, "I will take care of the ticket. You will have to get off the car." The plaintiff said, "I don't propose to do either." The conductor said, "I will put you off," and plaintiff said, "Bring your crowd." The foregoing statement as to what took place on the train is from plaintiff's testimony, and is as favorable to him as any of the evidence given. The plaintiff forcibly resisted all attempts to eject him, and was by means of force ejected by defendant's servants from the train, but no more force or violence was used than was reasonably necessary to effect the ejection. "Neither his [plaintiff's] bodily suffering nor his mental suffering were very great, nor were his bodily injuries serious." The foregoing statement of facts is in accord with the findings of the court, except in so far as certain findings may be capable of being construed as showing that the conductor received the ticket as in any degree entitling plaintiff to travel, or without notifying plaintiff that it was of no value and that he could not honor it, or that plaintiff intimated in any way that he would pay his fare or present a valid ticket if the other ticket should be returned. In so far as the findings may intimate any of these things, they are not supported by the evidence, as is fully shown by plaintiff's testimony on this subject, which has already been stated. The case in this respect is simply one where the conductor repudiated as absolutely void, and expressly refused to honor for passage, a ticket that was absolutely void, but, after so expressly refusing to honor it, neverthleess took it into his possession and retained it. It was further found by the court substantially as follows: From July 5, 1894, to July 13, 1894, defendant, notwithstanding its desire and attempts to operate its passenger trains between Oakland Pier and Pleasanton, was absolutely prevented from doing so by the forcible violence of a large body of men; the trouble having been caused by a "strike" of "engine firemen in its employ." On July 5 and 6, 1894, it did not operate any of its ferryboats between San Francisco and Oakland Pier. It did, however, operate a ferryboat between San Francisco and a place in Oakland near a station on the railroad from Oakland Pier to Pleasanton. On both days, the plaintiff went to the proper place in San Francisco for the purpose of taking passage, and learned that defendant was not operating its boats or trains. He however, on July 6th took passage on the ferryboat running to Oakland, using his ticket for that purpose, and, having arrived at the landing place in Oakland, proceeded upon his journey to Pleasanton, where he arrived the same day, walking a part of the way, and riding the remainder of the way upon conveyances not operated by the defendant. Train service was resumed on July 13, 1894, and defendant, by its order to its conductors, extended the time within which plaintiff and others similarly situated might use tickets of like character for return passage about six days, which period elapsed in the month of July, 1894, Elliott v. Southern Pac. Co but the fact of such extension was not communicated to plaintiff. The court further found that such period of extension was not a reasonable period; that the first opportunity that the plaintiff had of using said ticket for transportation between Oakland Pier and Pleasanton was on August 13, 1894; and that this was a reasonable time within which to use the same. These findings are attached as not being sustained by the evidence, and the attack is, in our opinion, well founded. Six days was twice the original life of the ticket, and certainly much more than sufficient to enable one who had come from Pleasanton to San Francisco upon such a ticket to make his return journey. August 13th was not the first opportunity that plaintiff had of using said ticket, for the train service had been resumed on July 13th, and continued uninterrupted thereafter. The only basis for a finding that August 13th was the date of plaintiff's first opportunity to use the ticket is the evidence of plaintiff that after July 6th he was not again in San Francisco or Oakland until August 13th; in other words, that he did not again have occasion to go from San Francisco or Oakland to Pleasanton until that time. This cannot, in a case of this character, be the criterion as to what was reasonable time or the first opportunity. The court further found that, at the time defendant sold the ticket to plaintiff, it knew, or had good and sufficient reason to know, from the facts and circumstances then existing and within its knowledge, that it would be or might be unable to transport plaintiff upon said railroad on July 5th or 6th; that it did not communicate these facts and circumstances to plaintiff; that plaintiff did not know thereof; and that, if he had known thereof, he would not have purchased the ticket. There is absolutely no evidence to sustain the finding embraced in the last clause. The court also found that, in selling the ticket under such circumstances, the defendant committed a fraud upon plaintiff. The plaintiff testified that on July 5th, when at San Francisco, he found that the trains were not being operated, he asked a man who was stationed at the ticket window of defendant to give him his money back. The man told him that his ticket was good until the next day, and, in response to plaintiff's inquiry as to what would happen if the trains were not then running, said: "It will be good when they do start." It further appears that on August 13th plaintiff, in San Francisco, purchased a ticket from San Francisco to Pleasanton, which, however, he never showed or offered to the conductor. The foregoing statement presents all the facts necessary to a discussion of the legal questions involved. There can be no question as to the right of a railroad company to limit the time within which a ticket sold at reduced rates may be used. As has been said, the passenger, by accepting and using such a ticket, makes a contract with the company according to the terms stated, and the reduction in the fare is the consideration for the contract. The passenger cannot take advantage of the reduction of the rate, and reject the terms on which alone the re |