printed upon it, but, acting upon the assurance of the conductor that he would be permitted to stop over at The Dalles, he did so, and, after remaining some hours, he took another train for the completion of his journey to Grant's. A short time after he entered upon this train, the conductor called upon him for his ticket, and he presented the draw back check and the receipt, which the conductór refused to accept, stating that it did not entitle him to ride upon that train, when he then explained to him the circumstances under which it was delivered to him by the other conductor, and claimed the right to continue his ride to Grant's station. The conductor told him that he was required by the rules and regu lations of the company to collect fare, or a ticket entitling the passenger to ride, and that none of the papers which he had presented entitled him to ride on that train, and that, unless he paid his fare, his duty would require him to expel him from the cars. After waiting until the train had proceeded several miles and arrived at a station, the conductor informed him that, unless he paid his fare, he would be under the necessity of requiring him to leave the train. The plaintiff pointedly refused to leave or to pay his fare, when the conductor, finding he would do neither one nor the other, with the aid of the brakeman undertook to expel him from the car, which the plaintiff resisted with all his force, and manifested a disposition to fight, but when finally expelled from the train he tendered his fare, was received again on the train, and carried to his destination. His own evidence concedes that the duty of expelling was an unpleasant task to the conductor, and performed under the circumstances indicated. From this statement of the facts it is apparent that the plaintiff was without any proper evidence or token of his right to transportation on that train, other than his statements to the second conductor of the oral representations of the other conductor of such permission. Although a disputed fact at the trial, the conductor denying he ever made such representations or gave such permission, we shall assume its verity after verdict. Under such circumstances, was it the duty of the plaintiff when notified by the conductor that he could not receive the drawback check, to pay his fare under protest, or leave the train without rendering it necessary for the conductor to resort to force to secure his removal? The drift of the defendant's contention is that it is a recognized right of every railroad company to make such reasonable rules and regulations for the conduct of its business as may be necessary, and that it is a reasonable exercise of this right to require that every passenger shall, when

Plaintiff should have paid fare or left train quietly.

called upon by the conductor, present a ticket conforming to its reasonable rules and regulations, or, if he is unable so to do, that he shall pay his fare, but if he cannot produce the required ticket, and refuses to pay his fare, that he may be lawfully ejected from the train. In this view, as between the plaintiff and the conductor of the train from which he was expelled, unless he could produce the required ticket as evidence of his right to ride on that train, or in default thereof to pay his fare, the conductor would not be authorized to allow him to proceed to his destination on such train on his statement of the oral representations of the other conductor, inconsistent with the face of his ticket, and contrary to the rules and regulations of the company. To that conductor the ticket which the plaintiff produced was to be taken as conclusive evidence of his right to travel on that train, and, it failing, the conductor could not receive the statements of the plaintiff contradicting its plain terms, and allow him to retain his seat. Upon this assumption, when the plaintiff was unable to produce the required ticket evidencing his right to travel on that train, and refused to pay his fare or to leave the train when requested, stopped at a proper place, the conductor was authorized lawfully to expel him from the train, and the defendant is not responsible in damages for injuries incurred in resistance to such expulsion. Summed up, then, the considerations in support of the principle invoked are: That as between the conductor and passenger, the right of the latter to ride must be evidenced by some proper token or ticket; that neither the time nor the occasion is suitable for an investigation, whether of explanation, or representations of another conductor in conflict with the terms of the ticket, and contrary to the rules of the company that it is better, under such circumstances, that the passenger comply if he is unable to produce the required ticket, and pay his fare, or leave the train quietly and suffer the temporary inconvenience which results, than that the business of the road be interrupted to the annoyance of the travelling public; that such a course would avoid all liability to unseemly struggles, often occurring in the presence of women and children, and prevent breaches of the peace, and at the same time secure the passenger ample redress in the remedies which the law provides. The application of this principle includes a variety of cases, as where the passenger is unable to produce any token or ticket as evidence of his right to ride, or the ticket which he does produce is irregular or defective, due to the fault or negligence of the agents of the

company.

In Frederick . Marquette, H. & O. R. Co., 37 Mich. 342,

supporting defendant's position.

the plaintiff held an insufficient ticket, caused by the fault of the company's agent in delivering to him a ticket Authorities to the wrong station. He asked and paid for a ticket to a given station, and received what he supposed was such ticket, but which on its face was only good to a point short of his destination. In passing upon this question the court observed: "How then, is the conductor to ascertain the contract entered into between the passenger and the railroad company, where a ticket is purchased and presented to him? Practically there are but two ways,-one, the evidence offered him by the ticket; the other, the statements of the passenger contradicted by his ticket. Which should govern? In judicial investigations we appreciate the necessity of an obligation of some kind, and the benefit of a cross-examination. At common law, parties interested were not competent witnesses, and even under our statutes the witness is not permitted, in certain cases, to testify as to facts which, if true, were equally within the knowledge of the opposite party, and cannot be procured. Yet here would be an investigation as to the terms of the contract where no such safeguards could be thrown around it, and where the conductor at his peril, would have to accept the statement of the interested party. I doubt the practical workings of such a method, except for the purpose of encouraging and developing fraud and falsehood, and doubt if any system could be devised that would so much tend to the disturbance and annoyance of the traveling public generally. As between conductor and passenger, and the right of the latter to travel, the ticket produced must be conclusive evidence, and he most produce it when called upon, as evidence of his right to the seat he claims. Where a passenger has purchased a ticket, and the conductor does not carry him according to its terms, or if the company, through the mistake of its agent, has given him a wrong ticket, so that he has been compelled to relinquish his seat, or pay his fare a second time in order to retain it, he would have a remedy against the company for a breach of the contract, but he would have to adopt a declaration differing essentially from the one resorted to in this case." In Townsend v. New York Cent. & H. R. R. Co., 55 N. Y. 295, the court say: "The question in this case is whether a wrongful taking of a ticket. of a passenger by the conductor of one train exonerates him from compliance with the regulations on another on which he wishes to proceed upon his journey. I am unable to see how the wrongful act of the previous conductor can at all justify the passenger in violating the lawful regulations upon another train. The conductor of the train upon

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which he was was not bound to take his word that he had had a ticket showing his right to a passage to Rhinebeck, which had been taken up by the conductor on the other train. His statement to that effect was wholly immaterial, and it was the duty of the conductor to the company to enforce the regulation as was repeatedly held by the trial judge by putting the plaintiff off in case he persistently refused to pay his fare. The question is whether, under the facts found by the jury, his resistance in the performance of this duty was lawful on the part of the plaintiff. If so, the singular case is presented where the regulation of the company was lawful, where the conductor owed a duty to the company to execute it, and at the same time the plaintiff had a right to repel force by force, and to use all that was necessary to retain his seat in the car. Thus a desperate struggle might ensue, attended by very serious consequences, when both sides were entirely in the right, so far as either could ascertain. All this is claimed to result from the wrongful act of the conductor of another train in taking a ticket from the plaintiff, for which wrong the plaintiff had a perfect remedy without inviting the commission of an assault and battery by persisting in retaining a seat upon another train, in violation of the lawful regulations by which those in charge were bound to govern themselves." In Yorton v. Milwaukee, L. S. & W. R. Co., 54 Wis. 234, 6 Am. & Eng. R. Cas. 322, the plaintiff had purchased a ticket to the place of his destination, and asked the conductor for a stop over ticket, and, through the fault or mistake of the conductor, he received a trip or train check instead of a stop over ticket for which he asked, and which the conductor undertook to give him. The conductor of the second train refused to recognize it for fare, and demanded passage money or a ticket, which being refused, the plaintiff was ejected from the train. The court say: "Then the question arises, was the plaintiff entitled to ride on a subsequent train, not having the proper stop over check, or was the second conductor justified, under the circumstances, in putting him off the train when he refused to pay his fare? was perfectly justified in ejecting plaintiff from his train when plaintiff had no proper voucher, produced no sufficient evidence of his right to ride thereon, and refused to pay fare, and he himself was ignorant of the transaction between plaintiff and Conductor Sherman, [the first conductor.] It seems to us there was no other course for him to pursue under the rules of the company, for he was certainly not bound to take the plaintiff's word that he had paid his fare, and that Sherman had made a mistake in not giving him a stop over check. It is apparent that the right of plaintiff to ride on the train

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without a proper voucher, and the right of the second conductor to eject him for want of said voucher, were inconsist ent rights. Each could not co-exist at the same time. Mistake or fault of the conductor in not giving him, on request, such a check, would not give him a lawful right to ride on the second train, though he might require damages against the company for the wrongful act of the first conductor." In Bradshaw v. South Boston R. Co., 135 Mass. 407, 16 Am. & Eng. R. Cas. 386, the court say: "It is no hardship upon the passenger to put upon him the duty of seeing to it in the first instance that he receives and presents to the conductor a proper ticket or check, or, if he fails to do this, to leave him to his remedy against the company for a breach of its contract. Otherwise the conductor must investigate and determine the question as best he can while the car is on its passage. The circumstances would not be favorable for a correct decision in a doubtful case." See also, Mosher 7. St. Louis, I. M. & T. R. Co., 23 Fed. Rep. 325, 21 Am. & Eng. R. Cas. 283; Hall v. Memphis & C. R. Co., 15 Fed. Rep. 57, 9 Am. & Eng. R. Cas. 348; Petrie v. Pennsylvania R. Co., 42 N. J. Law, 449, 1 Am. & Eng. R. Cas. 258; Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 618, 34 Am. & Eng. R. Cas. 290; Chicago, B. & Q. R. Co. v. Griffin, 68 Ill. 499; Shelton 7. Lake Shore & M. S. R. Co., 29 Ohio St. 214; Louisville & N. R. Co. v. Fleming, 14 Lea, 128, 18 Am. & Eng. R. Cas. 348 ; Pennsylvania R. Co. v. Connell, 112 Ill. 295, 18 Am. & Eng. R. Cas. 339; Prince v. International & G. Ñ. R. Co., 64 Tex. 146, 21 Am. & Eng. R. Cas. 152; Hufford v. Grand Rapids & I. R. Co., 53 Mich. 118, 18 Am. & Eng. R. Cas. 336; Downs v. New York & N. H. R. Co., 36 Conn. 287; Jerome v. Smith, 48 Vt. 230.

On the other hand, the contention for the plaintiff is that when he paid his fare from Portland to Grant's, upon the representation and promise of the conductor that Contention he could stop over at The Dalles and ride upon the for plaintiff. next train, and the conductor delivered to him a drawback check with a receipt for the money indorsed on the back thereof, and that, in pursuance of such agreement and promise, he, having stopped over, and then gone upon the second train without notice of any contrary regulation until after he commenced his journey, was not compelled to pay fare or leave the train, but that he was lawfully there, and might stand upon his rights, and, if wrongfully ejected by the conductor, he could recover damages for any injuries which he suffered in consequence of such ejection. Upon the facts there is no doubt but that the plaintiff had no knowledge of the rules or regulations of the company, and, as the agree