Argument of Counsel.

[43 App. 184 U. S. 695; Missouri R. Co. v. Smith, 152 Fed. 608 (C. C. A.), 10 Ann. Cas. 939; Monnier v. New York Cent. R. Co. 175 N. Y. 281; Montgomery Traction Co. v. Fitzpatrick (Ala.) 43 So. 136; Morse v. Southern R. Co. 102 Ga. 308; Muldowney v. Pittsburgh Traction Co. 8 Pa. Super. Ct. 335; Mullins v. Illinois C. R. Co. 93 Miss. 184, 13 A. S. R. 542; Nelson v. Long Island R. Co. 7 Hun, 140; Nicholson v. Brooklyn Heights R. Co. 118 App. Div. 13; Norman v. East Carolina R. Co. (N. C.) 77 S. E. 345; Northern R. Co. v. O'Connor, 76 Md. 207; O'Brien v. Boston & W. R. Co. 15 Gray, 20, 77 A. D. 347; O'Brien v. New York C. & H. R. R. Co. 80 N. Y. 236; Ogdensburg & L. C. R. Co. v. Pratt, 22 Wall. 123; Owings v. Speed, 5 Wheat. 420; Pease v. D. L. & W. R. Co. 101 N. Y. 367, 54 A. R. 699; Pennsylvania R. Co. v. Perry, 55 N. J. L. 551; Pennsylvania R. Co. v. Wabash R. Co. 157 U. S. 225; People v. Jillson, 3 Park. Crim. 234 (N. Y. Sup. Ct. Genl. Term); Petrie v. Pennsylvania R. Co. 42 N. J. L. 449; Phillips v. Atlantic Coast Line R. Co. 90 S. C. 187; Pickens v. Richmond R. Co. 104 N. C. 312; Pittsburgh R. Co. v. Daniels, 90 Ill. App. 154; Poulin v. Canadian Pac. R. Co. 52 Fed. 197 (C. C. A.); Republic Fire Ins. Co. v. Weide, 14 Wall. 375; Rogers v. Atlantic City R. Co. 57 N. J. L. 703; Rubinger v. New York R. Co. 144 N. Y. S. 765; Runkle v. Burnham, 153 U. S. 216; St. Louis R. Co. v. Ramsay, 96 Ark. 37; St. Louis R. Co. v. Sutton, 169 Ala. 389, 404–409, 23 Ann. Cas. 372; San Antonio R. Co. v. Newman, 17 Tex. Civ. App. 606; States v. Quincy R. Co. 125 Mo. App. 334; Shelton v. Erie R. Co. 73 N. J. L. 558; Shortsleeves v. Capital Traction Co. 28 App. D. C. 365; Smith v. Collins, 94 Ala. 394, 406; Spiess v. Erie R. Co. 71 N. J. L. 90; State v. Campbell, 32 N. J. L. 309; State v. Overton, 24 N. J. L. 435; Taylor v. Sparton R. & Elec. Co. (South Carolina Supreme Court, July 16, 1914), 82 S. E. 404; Texas, etc., R. Co. v. Bond, 62 Tex. 442, 50 A. R. 532; Thomas v. Geldhart, 20 N. B. 95; Townsend v. New York C. R. Co. 56 N. Y. 300; United States v. Stone, 106 U. S. 525; Van Dusan v. Grand Trunk R. Co. 97 Mich. 439; Weber v. Rochester St. R. Co. 145 App. Div. 84;

Weber v. Southern R. Co. 65 S. C. 356, 378; Western Md. R. Co. v. Stockdale, 83 Md. 245.

Mr. Wm. J. Neale, Mr. James N. England, Mr. Thos. W. Bramhall, and Mr. Frank J. Werzinger, for the appellee:

1. In Shortsleeves v. Capital Traction Co. 28 App. D. C. 365, there was no question of good faith; there was an absolute attempt to defraud. The passenger knew that his transfer was absolutely void at the point where he boarded the car, and his actions warranted the court in so holding as a matter of law. In the case at bar the plaintiff testified "he did not at any time look at the time limit punched on his transfer."

2. The authorities cited in appellant's brief we do not care to answer further than to invite attention to the fact that they deal either with cases where the right to use invalid transfers as the sole medium for the payment of fares or where the offer to use invalid transfers constituted fraud per se, thereby forfeiting any rights to become a passenger, and constituting the plaintiffs trespassers per se, or cases of similar nature.

Mr. Justice ROBB delivered the opinion of the Court:

It is conceded that plaintiff's transfer was void when presented. This the plaintiff was bound to have known, and the conductor to whom it was presented, in the nature of things and under the reasonable regulations of his company, was bound by what appeared on the face of the transfer. If a mistake had been made (and here it does not even appear that one was made) by the conductor issuing the transfer, the plaintiff would have had his right of action therefor against the company. Shortsleeves v. Capital Traction Co. 28 App. D. C. 365, 8 L.R.A. (N.S.) 287; Pouilin v. Canadian P. R. Co. 17 L.R. A. 800, 3 C. C. A. 23, 6 U. S. App. 298, 52 Fed. 197; Bradshaw v. South Boston R. Co. 135 Mass. 407, 46 Am. Rep. 481; Stockdale's Case, 83 Md. 245, 34 Atl. 880; Hufford v. Grand Rapids & I. R. Co. 53 Mich. 118, 18 N. W. 580, 8 Am. Neg.

Opinion of the Court.

[43 App. Cas. 430; Monnier v. New York C. & H. R. R. Co. 175 N. Y. 281, 62 L.R..A. 357, 96 Am. St. Rep. 619, 67 N. E. 569, 14 Am. Neg. Rep. 423; Shelton v. Erie R. Co. 73 N. J. L. 558, 9 L.R.A. (N.S.) 727, 118 Am. St. Rep. 704, 66 Atl. 403, 9 Ann. Cas. 883.

It is the business and duty of this class of common carriers to transport passengers for hire, and it is the privilege of the public to be so transported. Realizing the proneness of the travelling public to carelessness, the courts have adopted the very reasonable rule that if a passenger tenders a ticket void on its face, he must be given a reasonable opportunity to pay lawful fare before he may be considered a trespasser. In other words, the conductor, at least in the absence of convincing evidence to the contrary, may not assume that he is acting in bad faith until he has been informed that his ticket is not good and has failed, within a reasonable time, to pay his fare. But, after notice, he must seasonably elect whether he will pay his fare and receive the privileges of a passenger, or leave the car as a trespasser. "And while there is some contrariety of opinion respecting the effect of a subsequent tender of compliance, the better and prevailing rule is that, when the refusal is wilful, persistent, or capricious, or proceeds from a fraudulent purpose to evade paying for transportation to which he knows he is not otherwise entitled, the passenger cannot, * * * after the process of ejection has begun, entitle himself to transportation and render the completion of the ejection wrongful." Missouri, K. & T. R. Co. v. Smith, 81 C. C. A. 598, 152 Fed. 608, 10, Ann. Cas. 939. In that case Judge Van Devanter now Justice Van Devanter of the Supreme Court, wrote the opinion for the circuit court of appeals. It appeared that after the conductor had given the signal for the train to stop for the purpose of ejecting the plaintiff, a third person offered to pay plaintiff's fare. This offer the court ruled did not operate to render the completion of plaintiff's ejection wrongful. In Garrison v. United R. & Electric Co. 97 Md. 347, 353, 99 Am. St. Rep. 452, 55 Atl. 371, 14 Am. Neg. Rep. 314, the court said: "In the case at bar the transfer was void

* *

*

on its face when the appellant attempted to use it. It therefore did not entitle him to ride on the Wilkins avenue car, and the conductor was justified in demanding the appellant's fare, and upon the refusal of the latter to pay, the conductor was warranted in ejecting him. Both upon authority and principle it is clear that when the conductor has given the passenger a reasonable time and opportunity to pay the fare, and the passenger has persistently refused to comply, and the conductor has begun the process of expulsion by stopping the car or by applying force to the passenger when necessary, 'the passenger thereupon forfeits his rights as a passenger, and his ejection may be completed even though he may thereafter tender the performance demanded.'" See also Shortsleeves v. Capital Traction Co. 28 App. D. C. 365, 8 L.R.A. (N.S.) 287; Shelton v. Erie R. Co. 73 N. J. L. 558, 9 L.R.A. (N.S.) 727, 118 Am. St. Rep. 704, 66 Atl. 403, 9 Ann. Cas. 883; Cincinnati, S. & C. R. Co. v. Skillman, 39 Ohio St. 444, 8 Am. Neg. Cas. 571; O'Brien v. New York C. & H. R. R. Co. 80 N. Y. 236. The reasonableness of the above rule is apparent upon a moment's reflection. The passenger, by presenting a void transfer, becomes prima facie a trespasser, for the obvious reason that his right to be upon the car as a passenger is dependent upon his proffer of proper fare. If he fails or declines within a reasonable time to pay his fare, after the invalidity of his transfer has been brought to his attention, he becomes in fact a trespasser, and the conductor may treat him as such. Deliberately having assumed the status of a trespasser, he is thereafter in no position to complain because he is treated accordingly. To perinit him, after he discovers that his wilfulness has resulted in the commencement of the process of ejection, to resume the status of a passenger by the tender of his fare, would invite attempts at fraud and greatly interfere with the orderly and expeditious running of cars.

In the light of the foregoing, the defendant's motion for a directed verdict should have been granted, since, according to the plaintiff's evidence, he persisted in his failure or refusal to pay his fare until the conductor had rung the bell and called

Opinion of the Court.

[43 App. upon the motorman to assist in ejecting him. Indeed, the conclusion is irresistible from the plaintiff's evidence that actually the car had been stopped for the purpose of his ejection before he offered to pay his fare, for he testifies, as does his witness, that the motorman had started back before he (plaintiff) offered to pay. Of course, the motorman would not have started back while his car was in motion. That such was the purport of plaintiff's evidence is apparent from the charge of the learned trial justice. The plaintiff had then voluntarily assumed the status of a trespasser, and his offer to pay his fare came too late. His own evidence leaves no room for doubt that he was afforded ample opportunity to pay his fare before the conductor fixed his status as a trespasser by ringing the bell and calling upon the motorman to assist in ejecting him.

We think the defendant should have been permitted to show the number of cars that passed between the time the plaintiff reached the transfer point and the time when he boarded the car from which he was ejected, and that its regularly kept transportation records were competent for that purpose. St. Louis & S. F. R. Co. v. Sutton, 169 Ala. 389, 55 So. 989, Ann. Cas. 1912 B, 366; Louisville & N. R. Co. v. Daniel, 122 Ky. 256, 3 L.R.A. (N.S.) 1190, 91 S. W. 691; Donovan v. Boston & M. R. Co. 158 Mass. 450, 33 N. E. 583; Firemen's Ins. Co. v. Seaboard Air Line R. Co. 138 N. C. 42, 107 Am. St. Rep. 517, 50 S. E. 452. The plaintiff contended that he presented the void transfer in good faith and within about ten minutes after he reached the transfer point. The conductor who issued the transfer testified that his car reached the transfer point at about 6 o'clock, and it is conceded that it was not presented until about 6:35. Evidence that twenty-six cars passed this point after the plaintiff reached it tends to support the statement of the conductor issuing the transfer, and has some bearing upon the plaintiff's contention of good faith.

The judgment will be reversed, with costs, and the cause remanded for a new trial. Slocum v. New York L. Ins. Co. 228 U. S. 364, 57 L. ed. 879, 33 Sup. Ct. Rep. 523, Ann. Cas. 1914D, 1029; Pedersen v. Delaware, L. & W. R. Co. 229 U. S.