cept, persists in declining to pay his fare until after the conductor has rung his bell and called upon the motorman to assist in ejecting him, and the car has been stopped for that purpose, the passenger becomes a trespasser, and his ejection may be completed even if he then offers to pay his fare. (Citing Shortsleeves v. Capital Traction Co. supra.)

3. Where, in an action by a former passenger of a street railway company against the company for his alleged unlawful ejection from one of the defendant's cars, it is claimed by the plaintiff that he presented an overdue transfer in good faith and within ten minutes after the car had reached the transfer point, while the company contends that it was not presented until over half an hour after the car reached that point, the regularly kept transportation records of the company, offered by it, are admissible in evidence to show that twentysix cars passed the transfer point between the time the car on which the plaintiff was riding reached that point and the time he boarded the car from which he was ejected.

No. 2761. Submitted March 2, 1915. Decided April 5, 1915.

HEARING on an appeal by the defendant from a judgment of the Supreme Court of the District of Columbia, on verdict, in an action for the alleged wrongful ejection of the plaintiff from one of the defendant's street cars.

Reversed.

The COURT in the opinion stated the facts as follows:

Appeal from a judgment for the plaintiff, Fohl C. Brinley, in the supreme court of the District in an action for the alleged wrongful ejection of the plaintiff from one of the defendant's

street cars.

Shortly before 6 o'clock in the evening of April 7th, 1913, the plaintiff boarded one of defendant's cars at Fourteenth street and Pennsylvania avenue, the terminus of the car being Fourteenth street and Park road. As he desired to be transported on Fourteenth street north of Park road he obtained a transfer which, according to its terms, was good from point of issue in the direction indicated until the time canceled; in this instance, until 6: 20. The transfer also contained the following: "Passengers are required to see that time punched

is correct and accept transfer subject to company's rules and as not transferable or giving stop-over privileges."

Plaintiff's evidence tended to show that when the car reached the point of transfer, that is, Fourteenth street and Park road, plaintiff got off and went to a house one street north, where he transacted some business, after which he returned to the transfer point (having consumed in all, according to his estimate, about ten minutes time) and boarded a north-bound, pay-within car. He handed the transfer to the conductor and sat down. The conductor then said: "Your transfer is overdue; it's no good; it's out of date." Plaintiff replied: "No, I guess it's all right; I don't think it's overdue." The conductor, insisting that the transfer was overdue, rang the bell and the car stopped at Fourteenth and Monroe streets. In the meantime the conductor had called the motorman back and had informed the plaintiff that he would have to get off the car. The plaintiff jumped up and said, "Well, I will give you another fare rather than have any trouble and be put off;" but the conductor would not then receive any fare. Later on in his testimony plaintiff said that he "offered to pay his fare between Park road and Monroe street when the conductor was contesting his transfer; when the motorman came back at the call of the conductor, the plaintiff jumped up and said, 'Very well, I will pay you another fare rather than be put off.' It was just about the time the car stopped at Monroe street that he offered to pay his fare; it was after the car stopped at Monroe street that the conductor called the motorman back, and just before the motorman got to where conductor and plaintiff were, plaintiff offered to pay his fare; when he jumped up and offered to pay his fare, the car had stopped at Monroe street." Plaintiff did not at any time look at the time limit punched on his transfer. A witness for the plaintiff testified that he heard the plaintiff and conductor arguing over the terms of the transfer, and that finally "the conductor pulled the bell and called the motorman, and the motorman came back; just before the motorman reached plaintiff, the conductor put both hands on plaintiff's shoulder and said, 'Well, you will

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D. C.]

Statement of the Case.

get off, the transfer is no good;' and the plaintiff replied, 'Why, it is good, and why should I pay another fare;' by that time the motorman was possibly two seats from plaintiff and conductor, and the conductor caught hold of plaintiff's arm, the latter started to rise from his seat, and put his hand in his right vest pocket, and said, 'Rather than be put off the car, I will pay you another fare,' but the conductor replied, 'You won't pay me any fare,' and while he did not push the plaintiff, he followed him around with his hand until plaintiff stepped from the car; this occurred at about thirty-four or thirty-five minutes past 6."

It is conceded that the transfer was overdue, and it is not contended that excessive force was employed in ejecting plaintiff. According to the evidence for the defendant, the Fourteenth street car from which plaintiff alighted reached the point of transfer at about 6 o'clock. Its evidence further tended to show that the conductor to whom the transfer was presented made repeated unsuccessful efforts to induce the plaintiff to pay his fare before resorting to the extreme measure of putting him off the car. The defendant offered to show, from regularly kept transportation records, that twenty-six cars passed the transfer point between the car from which plaintiff alighted and the car from which he was ejected. This offer was rejected and an exception noted.

At the close of the evidence counsel for the defendant moved the court for an instructed verdict, which motion was overruled and an exception noted. Thereupon the court instructed the jury that if the plaintiff, when he offered the void transfer, was acting in good faith, it was the duty of the conductor, after informing him that the transfer was not good, to give him a reasonable time in which to pay his fare before putting him off. Among other things the court said: "If all that time he (plaintiff) was acting in good faith, honestly thinking his transfer was good, and the conductor insisted on his side that it was not good, and then called the motorman back to help him eject the passenger, who said, 'Why, I do not want any trouble; I will pay my fare rather than be put off,' all the while acting

Vol. XLIII.-28.

Argument of Counsel.

[43 App. as an honest man in good faith, it would be the duty of the conductor in those circumstances to accept his fare, and not put him off. That is the case as the plaintiff tries to show you on the evidence. The plaintiff says that as he saw

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the motorman coming back he tried to reach his vest pocket, and said, 'I will pay the fare rather than have any trouble,' and the other passengers said the same thing, that that did occur." In response to a question from a juror the court again stated the issue as follows: "The question is whether he (plaintiff) offered to pay his fare before he was put off. If he did offer to pay it, they had no right to put him off, no matter about the transfer." To this portion of the charge the defendant excepted.

Mr. Frank J. Hogan, for the appellant, in his brief, cited: Abra Silver Min. Co. v. United States, 175 U. S. 423; Etna Ins. Co. v. Weide, 9 Wall. 677; Note to Com. v. Power, 41 Am. Dec. 465; American Surety Co. v. Pauly, 170 U. S. 133; Atchison, T. & S. F. R. Co. v. Dwelle, 44 Kan. 394; B. & 0. S. W. R. Co. v. Evans (Ind.) 82 N. E. 773; Bates v. Preble, 151 U. S. 149; Beck v. Quincy, 129 Mo. App. 7; Behr v. Erie R. Co. 69 App. Div. 416; Berkleheimer v. Joline, 113 N. Y. S. 921; Bradshaw v. South Boston R. Co. 135 Mass. 407, 46 A. R. 481; Bright v. Young, 56 Ala. 112, 116, 117; Brown v. Rapid R. Co. 134 Mich. 591; Callaway v. Mellett, 15 Ind. App. 366; Callihan v. Wash. Water Power Co. 28 Wash. 154, 56 L.R.A. 772, 91 A. S. R. 820; Cathey v. Missouri R. Co. (Tex.) 124 S. W. 217; Chaffee v. United States, 18 Wall. 516; Chin Wah v. United States (Court of Appeals, District of Columbia), 43 W. L. R. 50-52; Cincinnati R. Co. v. Skillman, 39 Ohio St. 444; Clark v. Wilmington R. Co. 91 N. C. 506, 49 A. R. 647; Crowley v. Fitchburg St. R. Co. 185 Mass. 279; Dixon v. New England R. Co. 179 Mass. 242; Donovan v. Boston R. Co. 158 Mass. 450; Duke v. Metropolitan St. R. Co. 166 Mo. App. 121; 4 Elliott, Railroads, 1594; Elliott v. Southern Pac. Co. 145 Cal. 441, 68 L.R.A. 393; Firemen's

Ins. Co. v. Seaboard Air Line R. Co. 138 N. C. 42, 107 A. S. R. 517; Freeman v. Costley (Tex. Civ. App.), 124 S. W. 458; Freidenrich v. B. & O. R. Co. 53 Md. 201; Fulton v. Grand Trunk R. Co. 17 U. C. Q. B. 428; Galveston R. Co. v. Turner (Tex. Civ. App.) 23 S. W. 83; Garrison v. United R. & Elec. Co. 97 Md. 347, 99 A. S. R. 452; Georgia R. Co. v. Davis, 6 Ga. App. 645; Georgia Southern R. Co. v. Asmore, 88 Ga. 529, 16 L.R.A. 53; Gorman v. Southern Pac. Co. 97 Cal. 1; Gould v. Chicago R. Co. 18 Fed. 155; Gurley v. McLennan, 17 App. D. C. 170, 172, 173, 175, 176, 177-180; Hanley v. Brooklyn Its. R. Co. 110 App. Div. 429; Harrison v. Fink, 42 Fed. 787; 1 Harvard Law Review, 20; "Tickets;" Hibbard v. New York R. Co. 15 N. Y. 455; Hoffbauer v. Delhi & N. W. R. Co. 52 Iowa, 342, 35 A. R. 278; Hornesby v. Georgia R. & Elec. Co. 120 Ga. 913; Iufford v. Grand Rapids R. Co. 53 Mich. 118; Hutchinson, Carr. §§ 574, 580, 1085; Illinois Cent. R. Co. v. Bauer, 66 Ill. App. 124; Illinois C'ent. R. Co. v. Jackson, 117 Ky. 900; Iowa v. Patrick Brady (1896 Ia.), 36 L.R.A. 693, 695-697; Jones v. Omaha St. R. Co. 95 Neb. 798; Kansas City R. Co. v. Foster, 134 Ala. 244, 92 A. S. R. 25; Kansas City R. Co. v. Holden, 66 Ark. 602; Keen v. Detroit Elec. R. Co. 123 Mich. 247; Kiley v. Chicago St. R. Co. 189 Ill. 384, 52 L.R.A. 626, 82 A. S. R. 460; Kirk v. Seattle Elec. Co. 58 Wash. 283, 109 Pac. 604; Little Rock R. & Elec. Co. v. Goerner (Kansas Supreme Court, 1906), 95 S. W. 1007; Loeb v. Huddleston, 105 Ala. 257, 261; Louisville R. Co. v. Cottengim (Kentucky Supreme Court), 104 S. W. 280; Louisville R. Co. v. Daniel, 122 Ky. 256, 3 L.R.A. (N.S.) 1190; Louisville R. Co. v. Harris, 9 Lea, 180, 42 A. R. 672; Louisville R. Co. v. Klyman, 108 Tenn. 304, 56 L.R.A. 769, 91 A. S. R. 755; Loy v. Northern Pac. R. Co. 68 Wash. 33; McCoul v. LeKamp, 2 Wheat. 111; McDonald v. Central R. Co. 72 N. J. L. 280; McGhee v. Reynolds, 117 Ala. 413; McKay v. Ohio River R. Co. 34 W. Va. 65; Mason v. Seaboard Air Line R. Co. 159 N. C. 183; Metropolitan R. Co. v. Collins, 1 App. D. C. 383; Mims v. Sterterant, 18 Ala. 359, 364; Missouri R. Co. v. Elliott, 102 Fed. 96 (C. C. A.), affirmed,