The opinion of the Court was delivered by
Mr. Justice Pope.The plaintiffs brought their action against the defendant for $500 damages. The trial came on before his Honor, Judge Watts, and a jury, at the November term, 1896, of the Court of Common Pleas for York County, in this State. The verdict was for $105 in favor of the plaintiffs. After entry of judgment, the defendant appealed therefrom on twenty grounds. The Judge’s charge and the grounds of appeal will be set out in the report of the case. Before disposing of these grounds of appeal, it may be profitable to give a brief history of the contention. On 29th June, 1895, the plaintiffs entered into a written agreement with the defendant about as follows: The Southern Railway Company agreed to furnish the plaintiffs a train of five passenger coaches and one baggage car, to be run by plaintiffs as an excursion from Chester, S. C., to Asheville, N. C., on the 10th July, 1895, returning the next day, at the price of $525 in cash, which was paid. Tickets were to be sold by plaintiffs from Chester, S. C., to Charlotte, N. C., inclusive, and it was stipulated that, if the plaintiffs should request one or more additional passenger coaches to be furnished for their use, the plaintiffs should pay $105 for each car so furnished; but it was not to be obligatory upon the railway company to furnish these additional passenger coaches, unless it be entirely convenient for them to do so. The plaintiffs agreed that not more *35than fifty-six passengers shall be put in each passenger coach, and that passengers shall not be transported in baggage cars; two children under twelve years of age to be counted as one person; and that the railroad train men in charge of said train shall not be interfered with by, nor shall they be under the control of, said plaintiffs. It was especially agreed that passengers on the excursion train shall only be taken from Chester, S. C., to Charlotte, N. C. Under the aforesaid agreement, the excursion train left Chester, S. C., on the morning of the 10th of July, 1895, and when it reached Charlotte, N. C., was not full. At this latter point quite a number of tickets were sold by plaintiffs, and it was found, in fact, that there was not room to accommodate on the train all to whom tickets had been sold. Pvery effort was made by the defendant to secure additional coaches at Charlotte, N. C., but without success; so that the price of many tickets sold by the plaintiffs was refunded to the purchasers. After the train had left Charlotte, on its way to Asheville, N. C., the conductor and baggage master found 104 more persons on the train than were allowed under the contract — the limit, under the agreement in writing, being 280 on the five coaches; or fifty-six to each coach; but the plaintiffs showed that of these 104 in excess, thirty-seven were “dead heads” — that is, persons to whom no tickets had been sold, as vendors of refreshments, musicians, and the like; but after deducting this thirty-seven from the 104 in excess, it still left sixty-seven on board more than the plaintiffs had stipulated should be allowed on the train. When near the station known as Old Port, about thirty miles from Asheville, N. C., the plaintiffs were informed that telegrams had been received by the conductor from the áuthorities of the railway, directing such conductor to collect $105 from the plaintiffs, and attach to the train another coach which was at said Old Fort; and if this sum was not paid by the plaintiffs, to detain the train at that point until the money was paid. The plaintiffs denied their liability to pay this sum, *36or any sum, or that they needed this additional coach. Finally, after the delay of at least forty-five minutes, or one hour and thirty minutes at most, the plaintiffs paid this sum under protest, expressed in the receipt for the money so paid. The trip was then completed, both going and returning. The plaintiffs demanded a return to them by the railway company of the $105. The demand was refused. Hence this suit. The complaint set out the foregoing facts, especially the written agreement, demanding the repayment of $105, and $395 damages. The answer admitted many facts set out in the complaint, but denied any liability for any sum to the plaintiffs, and denied any breach of the agreement by it.
1 At the opening of the. trial, the defendant demanded as its right the opening and reply in testimony and argument. This the Circuit Judge denied to them. This action of the Circuit Judge makes up the twentieth ground of appeal. We cannot sustain this ground of appeal, for the defendant did not by its answer admit all the allegations of - plaintiffs’ complaint. It concluded its answer with a denial of every other fact set out in the complaint not specifically admitted in the answer. The true rule, in the cases where defendant acquires the right to open and reply, is well stated in the opinion of Mr. Chief Justice Mclver, in Addison v. Duncan, 35 S. C., 165, to exist in those cases where the defendant by his pleadings admits the plaintiff’s cause of action as stated in the complaint, and relies solely upon an affirmative defense, based upon facts stated in the answer, so that without evidence by defendant the plaintiff would be entitled on the pleadings to a verdict. It is very clear that the defendant here did not fulfill these requirements in its answer.
2 We are unable to sustain the first, second, and fourth exceptions. Certainly the conductor of the train was directed by the railway authorities to collect $105 from the plaintiffs, also to attach a car to the train assigned for the use of plaintiffs, and what the conductor said *37in the exercise of these duties imposed upon him was competent evidence.
3 We will next inquire into the third, eighth, ninth, tenth, and eleventh exceptions. The defendant was seeking to charge the plaintiffs with a debt of $105, by proving that the conductor and baggage master had counted the passengers on the train and found that there were sixty-seven passengers above the number fixed by the contract. The plaintiffs had not counted the passengers, and by the testimony they offered were endeavoring to negative this position of the defendant by proving that no seat in the train was occupied by more than two persons, and also by showing that the receipts of money, from the sale and use of tickets b*y passengers on the train, did not sustain the defendant’s position as to the number of passengers. The Circuit Judge, in admitting this testimony, did nothing more than to indicate that this testimony was competent; he did not pass upon its sufficiency. With this object in view, he did not err.
4 The fifth and seventh grounds of appeal, as to nonsuit, cannot be sustained. The plaintiffs had introduced some testimony relating to issues involved, and such being the case, it would have been reversible error if the Circuit Judge had sustained the motion for a nonsuit.
5 When we examine the thirteenth ground of appeal we find merit in the appeal. The Circuit Judge laid down a rule as to the time where the defendant should have raised the question with the plaintiffs as to the excess of passengers in the five coaches above the limit fixed in the contract. In his charge the Circuit Judge said more than once: “But it was the duty of the railroad, when it found that they” (the excess of sixty-seven passengers) “were there” (on board of the cars), “to demand payment at the time, and if they allowed it to go on, having their own servants and conductor there, and did not furnish a car when demand was made for it, and after demand was made for it they let them ride on, and then zahén they got several *38miles up the road, furnished another car and held them there until they paid the excess, then they zvould be liable for damages.'''1 We do not see how this proposition of law can be held entirely sound. By the contract, passengers could not be taken after the train left Chaidotte, N. C., on its way to Asheville. Passengers to be allowed by the conductor to remain on the train had to bear tickets. Tickets could only be obtained from the plaintiffs. These plaintiffs had contracted with the defendant not to allow more than fifty-six passengers in each of the five passenger coaches. The discovery of the excess in passengers beyond this limit could not be ascertained by the conductor until after the train passed beyond Charlotte, N. C., on its way to Asheville, N. C. Then where is the reason in the rule laid down by the Circuit Judge? No passenger who bore a ticket could be ejected by the conductor nor by the plaintiffs, as for that matter. Why so much essence can be ascribed to the exact time of action in collecting fares by this defendant railroad, we cannot discover. The real truth of the matter is, that the plaintiffs, in their contract, did not provide for the payment of fares of their passengers beyond fifty-six in each car. We suppose the conclusion of $105 for the extra passengers was reached, because sixty-seven passengers would just more than fill one car for passengers. So, that, when the Circuit Judge ruled as he did, he practically decided the case in favor of the plaintiffs. See his concluding words in that part of his charge that we have copied herein and italicized.
The 14th, 15th, 16th, 17th, and 18th exceptions are practically covered by what we have held in disposing of the 13th.
The 19th exception becomes practically useless, as we have already determined that a new trial must be ordered.
It is the judgment of this Court, that the judgment of the Circuit Court be reversed, and that the action be remanded to the Circuit Court for a new trial.