Among other things, the court charged, at plaintiff's request:
(321) "If you find that while the train was standing at Campton, and before it had moved, the plaintiff, at any time, tendered or offered to pay the fare from Spartanburg to Hendersonville, the conductor should have received it and permitted the plaintiff to continue his journey, and his refusal to do so was wrongful, and his expulsion, if you find that he was expelled after making such a tender, was unlawful, and your answer to this issue should be in the affirmative." The plaintiff's first cause of action was founded on the failure and refusal of the defendant companies to perform the contract arising out of the purchase by plaintiff at Hendersonville, *Page 239 North Carolina, of a return ticket from that place to Jacksonville, Florida, and his ejection from the car of the Spartanburg Asheville Railroad Company, on his return, at a place called Campton, on their road, because he had failed to sign said ticket and have it stamped by the agent at Jacksonville, according to the contract printed in it. The second cause of action was, the alleged wrongful expulsion of the plaintiff and the refusal of the agent of the defendant, after he had been ejected from the train, and while he was being expelled, to accept the tender of money made by him for his fare.
We cannot consider the reasonableness of the regulation in reference to signing and stamping the plaintiff's ticket, for in the discussion of this appeal that cannot now be treated as an open question. The judge below instructed the jury as to the nature of the contract and the alleged waiver of it by the railroad companies, and the jury found the issue arising out of that cause of action for the defendants. The plaintiff did not appeal and the defendants assign as error only, the refusal of the court to give the instruction asked, and the giving of that substituted for it upon the issues involved in the second cause of action.
Following the general current authority in the United States, this Court has held that the officers of a railroad company have a right to expel a passenger who refuses to pay the railroad fare, provided no more force is used than is necessary in ejecting him. Clark v. R. R.,91 N.C. 512; Skillman v. R. R., 13 Am. En. R. Cases, 31; R. R., v. Wright, 34 Am. Rep., 277; R. R., v. Pierce, 3 Am. En. R. Cases, 340; 38 Am. En. R. Cases, 556, and note; Petrie v. R. R., 42 N. J., 449. InClark v. R. R., supra, the Court says further, in reference to the (324) expulsion of a passenger who has refused to pay, "Nor when the officer has stopped the train and he is descending the steps and is about to pass out will a tender of the fare entitle him to return to his seat. He forfeits his right of carriage by such misconduct, by breaking his own contract to pay when called on, and it is not regained by his repentance at the last moment and after he has caused the inconvenience and delay to the company by his wrongful act."
If the tender of fare is made by a passenger or any other person for him before the train is stopped to expel him, the company must accept it and allow him to remain, but after the train has been stopped for that purpose, he cannot reimpose upon the company the obligation to perform a contract which he had violated in the first instance, by an offer of the money that he ought to have paid when demanded. Hoffman v. R. R., 52, Iowa, 342. If persons were allowed, out of mere wantonness or mischief, or in order to test a legal question, to decline to pay fare, till a train is stopped to eject them, and then, at the moment of expulsion or *Page 240 immediately after, to reinstate themselves in all their original rights as passengers, by a tender of the usual fare, it would often subject the public to inconvenience, travelers to danger of accident, and corporations to useless risks, simply to gratify caprice, or malice, or a disposition to speculate.
It is a well settled principle, in which nearly all the authorities in this country concur, that, where the recusant passenger forces the company to put him off at a point other than a regular station, or at which there would have been no delay but for the necessity of ejecting him, the conductor must refuse his tender of fare after he is put off, and, even if during the delay he gets upon the train again to make the tender, may expel him a second time if he chooses to do so. 3 Hood's R. L., (325) secs. 361, 362, and notes; Hoffman v. R. R., supra. When a person is put off a train for refusal to pay fare at a regular station, or so near it that he can reach it while the train is stopping there, and buys a ticket from such depot to some point in the direction in which he is traveling, the weight of authority is in favor of the rule that he can be required, even then, to pay charges for the distance that he previously rode on the train without a ticket, and he ejected for refusal to do so. 3 Hood's R. L., sec. 361; Stone v. R. R., 29 Am. Rep., 458 (47 Iowa 83).
We think that there was error in the instruction given by the judge below. After careful scrutiny of the evidence of every witness we fail to find any testimony tending to show that tickets were sold at Campton and to justify the instruction predicated upon the idea that it was a regular station. But, conceding that tickets were sold there, and that passengers sometimes got on and off there, it is in evidence, and not disputed, that the particular train on which the plaintiff was traveling, would not have stopped at Campton but for the purpose of expelling him from it. If that be true, both reason and authority sustain the right of the conductor to put him off, and to refuse him readmission, just as he might have done at any point on the line where there was not even a house.
If Campton was a regular station, and while the train was detained there the plaintiff had bought a ticket to Hendersonville, and again entered the train and tendered the fare from Spartanburg to that point, in money, with the ticket, that state of facts would have presented a very different question. The ticket issued by its agent would have constituted a new contract on the part of the company, by which, with the tender of the amount previously due, and according to some authorities, without it, the company would have been compelled to transport him on its train to Hendersonville. But it is not essential that we (326) should pass upon that question. *Page 241
So far as this train was concerned, on this particular occasion, the conduct of the plaintiff was the only cause for stopping it at Campton. When the detention was due solely to his refusal to perform the implied contract, growing out of his getting on the train by paying the usual fare to his destination, the law will sustain the company in insisting that he shall pay the penalty of such persistent refusal by being himself subjected to inconvenience without compensation.
His Honor should have instructed the jury that, as the train was stopped only for the purpose of putting the plaintiff off, he was not entitled to recover damages for the refusal to accept fare after the train stopped or for again ejecting him while the train was standing there. O'Brien v. R.R., 80 N.Y. 236.
There is error for which a new trial will be granted.
Error.
Cited: Rose v. R. R., 106 N.C. 169; Browne v. R. R., 108 N.C. 42;Roseman v. R. R., 112 N.C. 716; Mason v. R. R., 159 N.C. 187; Norman v.R. R., 161 N.C. 340; Mott v. R. R., 164 N.C. 371.