(after stating the facts). Counsel for appellant rely for a reversal upon the action of the court in refusing to give to the jury the following instruction:
“No. 2. The defendant railroad company had the right to establish a rule requiring passengers to purchase tickets before entering trains. If the jury finds that it had established such a rule, and that the passengers were afforded a reasonable opportunity to purchase tickets before the departure of the train on which they wished to take passage, and did not do so, and the brakeman refused politely to allow the passengers to enter for the reason that they had not procured tickets, the jury will find for the defendant.”
It is undoubtedly competent for a railroad company, as a means of protection against imposition and to facilitate the transaction of its business, to require passengers to procure tick-est before entering the car, and where this requirement is duly made known and reasonable opportunities are afforded for complying with it, it may be enforced, either by expulsion from the train regardless of a tender of the fare in money, or, as will be seen in the following section, by requiring the payment of a larger fare upon the train than that for which the ticket might have been procured. 2 Hutchinson on Carriers (3 ed.), § 1032, and cases cited. See also 6 Cyc. 547.
Such rules are reasonable because they not only facilitate the orderly and convenient conduct by the railroad company of its own business, but promote the safety and comfort of its passengers. That railroad companies, unless prohibited by statute, may make and enforce such regulations, provided they also afford to those desiring to become passengers reasonable opportunity to purchase tickets, is not denied by counsel for appellees; but they contend that, under our statutes, the railroad may not enforce such rules by refusing a person without a ticket the right to enter one of its passenger trains for the purpose of transportation. To sustain their position, they rely upon the case of St. Louis & San Francisco Railroad Co. v. Kilpatrick, 67 Ark. 47, in which section 6613 of Kirby’s Digest was construed. It reads as follows: .
“All passengers who may fail to procure regular fare tickets shall be transported over all railroads in this State at the same rate and price charged for such tickets _ for the same service.”
The opinion in the Kilpatrick case must be considered with reference to its own facts. There the one intending to be carried, without any intent to defraud or impose upon the carrier, and being ready, able and willing to pay his fare, was ejected from the train after it had been put in motion. The issue thus presented for determination was whether or not, under the facts stated, the carrier had the right to expel him from the train. The court held that it did not have that right because Kilpatrick had become a passenger within the meaning of section 6613 of Kirby’s Digest. The court said:
“We are of the opinion, conceding the facts to be as appellee states them and as the jury might have found, that appellee was a passenger. In other words, one who in good faith goes to a railroad station, intending to take passage upon one of its regular passenger trains, who is able and intends to pay his fare upon the demand of the carrier, and who enters over the steps of a passage way to a car where passengers ride, and through an entrance, unobstructed, which passengers may freely use — we say, one who embarks upon a passenger train under such circumstances is a passenger, although he may not have purchased a ticket, and may not have entered at a place where a porter or brakeman was stationed to inspect tickets, and although he may have passed over to, and may have been found standing temporarily upon, the platform of a coach in which passengers were not permitted to ride. The purchase of a ticket is not a prerequisite to the relationship of passenger and carrier under our statute.”
Instead of using the languge quoted, if the court had intended the broad construction now contended for by appellees, it should have said that the word “passenger,” as used in section 6613 of Kirby’s Digest, meant one going to a train which carried passengers, and being able and willing to pay his fare.
Section 6613, supra, is part of the act regulating passenger rates; and, when construed with reference to the evident intent of the Legislature, the section may be said to have been passed for the purpose of preventing railroad companies from enforcing regulations requiring passengers to purchase tickets before entering trains by exacting a greater fare from them than from those who purchase tickets.
To sustain the contention of appellees would be to hold that seotion 6613 of Kirby’s Digest affirmatively confers upon passengers the right to get on trains without tickets, and thereby deny to a railroad company the right to require of an intended passenger the purchase of a ticket as a condition-to entering the train. We do not think such was the intention of the Legislature, or that the language used is susceptible of that interpretation, when considered with reference to the legislative intent, but are of the opinion that it only intended to prescribe the fare in case the passenger is on the train and pays the conductor. It follows that the instruction should have been given.
Other assignments of error are pressed upon us for reversal; but as they are in regard to matters that will not likely arise on a new trial, we need not consider them.
For the error in refusing to give instruction No. 2 as requested by appellant the judgment will be reversed, and the cause remanded for a new trial.