(dissenting.) — I cannot concur in the reversal of this judgment. I concur in what is written, as to the rulings on the evidence; but with this evidence excluded, and on the plaintiff's own evidence, he showed no right to recover in this action, and none to recover more than 2 cents in any other action.
This record convinces me that the plaintiff entered the train, ■on the occasion complained of, not for the purpose of being carried, but for .the purpose of being ejected, and then bringing this .suit to recover damages.
Courts should not listen to the complaints of litigants who voluntarily sustain their own injuries. It’indisputably appears that by paying 2 cents more than the amount tendered, he would have been carried to his alleged destination. He had no contract to be carried to his alleged destination for 13 cents. The conductor had no authority to carry him, or allow him to be carried, for 13 cents, the amount tendered. The fact (if it be a fact) that other passengers had been carried this distance — the distance between these two stations — for 13 cents, or even for nothing, neither gave the plaintiff, the right to be so carried, nor ruthorized, or enjoined the duty upon the conductor to carry •plaintiff, or allow him to be carried for that amount. The conductor had been furnished a schedule of rates and distances be*439tween the various stations on the defendant’s line of railroads. This was his sole criterion of the fare to be collected by him from passengers not provided With tickets or transportation. Whether these rates and distances were established or limited by statute or by other authority, they were the rules of the company, and were not shown to be unreasonable or unlawful. In fact, the rate per mile, 2y% cents, was the rate fixed or named in the statute; but no statute had attempted to say what the distance was between these two stations, and none probably ever will. Plaintiff could not legally dispute or contest with the conductor the distance between these two stations, or any other stations. It. is perfetcly certain that a conductor cannot know the exact distances between all stations on the railroad line over which his train is being operated; nor can passengers have such knowledge-without actually measuring the distances, and everybody knows that neither passenger nor conductor measures such distances in order to ascertain the amount of the fare between two places. If the plaintiff had measured the distance betweén the two stations in question, or had had it done, it was merely for the purposes of this suit, and not for the purpose of determining the amount of fare he ought to pay. The sole difference between the plaintiff and the conductor was, that the schedule furnished the latter showed the distance to be 5.1 miles, while the contention of the-plaintiff was that it was exactly 5 miles or less — not a fraction more.
I ask in all seriousness, if it is the law of this state now, or if it ever was the law, that a passenger who boards a train without, a ticket or contract of carriage may dispute or contest the distance between two stations, and decline to pay for the distance shown by the carrier’s schedule, the only criterion possessed by the conductor for his guidance, and — the conductor declining to carry him without his paying for the distance so shown — thereafter, in a suit, recover damages if it be ascertained by the jury that the distance was overstated in the schedule and that the passenger had tendered the proper fare for the actual distance. I d’o not believe that this is now, or ever was, the law of this state- or of any other state or country.
If the-schedule employed by the conductor in this case was: not the one approved by statute or law, it was at least the reasonable rule and regulation of a common carrier, and controlled, unless in violation of the statute. And the burden was on the *440plaintiff, and not on the defendant, to show that it was in violation of the statute, or that it was unreasonable.
The case of Manning v. Louisville & Nashville Railroad Co., 95 Ala. 392, 11 South. 8, 16 L. R. A. 55, 36 Am. St. Rep. 225, was .a much stronger case for the plaintiff than is this, and it was held that he could not recover. The headnote of that case is as follows: “A regulation adopted by a railroad company requiring a passenger who is found traveling without a ticket, or on a ticket which has been forfeited, to pay for the part of the route already passed over, as well as the part yet to be traveled, is a reasonable rule; and on his failure or refusal to comply with it, the passenger may be ejected.”
In a New York case there was an express statute applying to the case then in hand. That decision is well stated in the headnote to the report of the case in 62 L. R. A. 357, as follows:
“One who boards a train without a ticket because the ticket office is not open for the sale of tickets as required by statute cannot refuse to pay the extra train fare required of passengers without tickets, and resist ejection on tender of the price of the ticket, but must pay the additional fare and resort to his legal remedy to recover it and the statutory penalty for failure to have the office open.”—Monnier v. N. Y. C. & H. R. R. Co., 175 N. Y. 281, 67 N. E. 569, 62 L. R. A. 357, 96 Am. St. Rep. 619.
If there was any discrimination against plaintiff in the case at bar, section 5531 of our Code gives him his remedy; his only remedy.
While I find no case with facts exactly like this, I do find many other cases in which the facts were much stronger for the plaintiff and against the defendant than they were in this; and in all of them, the right of recovery was denied as a matter of law. Cases in which tickets had expired, or were issued wrongfully, without fault of the passenger, certainly present stronger cases than where no contract at all is made or attempted to be made, and no more fare is attempted to be collected of the passenger than if he had bought a ticket. It is conceded here, or shown without dispute, that if a ticket had been issued to plaintiff hé would have had to pay 15 cents for it. It was shown without dispute that tickets were issued to passengers traveling between the two stations in question, and that the uniform and only price thereof was 15 cents, and plaintiff admitted that he had paid that price for tickets. No ticket was issued or could be issued on *441the occasion in question, because there was no ticket office at the station at which he boarded the train, but there was a ticket office at the other station; and on plaintiff’s return, if he came back on defendant’s road, he would have to purchase a ticket and to pay 15 cents for it. No one has ever heard of ticket rates being higher than conductor’s rates — in fact, the court and everybody else knows that conductor’s rates are the higher, where the passenger takes.train at a station at which he could have procured a ticket, but failed to do so, on. account of his own fault. Here the plaintiff’s whole contention is that the conductor’s rates are, or ought to be, 2 cents less than the. ticket rates. Surely the rate — that fixed by law or by the reasonable rules of the carrier — is not made to depend upon the direction in which the passenger or the car is going; yet this is the contention of plaintiff. It is not disputed that no more fare was demanded of plaintiff than the ticket rate, or that fixed by the passenger tariff rates, schedules, and time cards, of the carrier. Suppose the rates were not approved by the carrier, or had not been filed. The rate per mile was exactly that fixed by the statute and the rules and regulations of the carrier as to the carriage of all passengers between the two stations in question, and there is nothing to show that the rules and regulations were unreasonable. The reasonable rules and regulations of carriers are as binding upon the public and passengers as if they had received legislative sanction. When the conductor is enforcing a reasonable rule or regulation against a passenger, the law does not allow the passenger to contend with the former about it, nor to resist the rule’s enforcement. The law is made for the good of the public as well as for that of the individual passenger or particular carrier. The law on this subject, and the reason for it, was probably never better stated than by Judge Cooley when he was Chief Justice of the Supreme Court of Michigan. In the case in question a passenger had actually paid his fare, but the conductor had no evidence of it (under the rules of the carrier, by which he had to be guided for the benefit of the public as wéll as of the carrier) ; and Judge Cooley said: “If, when a passenger makes an assertion that he has paid fare through, he can produce no evidence of it, the conductor must at his peril concede what the passenger claims, or take all the responsibilities of a trespasser if he refuses, it is easy to see that his position is one in which any lawless person, with sufficient impudence and recklessness, may have *442him at disadvantage, and where he can never be certain, if he performs his apparent duty to his employer, that he may not be subjected to severe pecuniary responsibility. Such- a state of things is not desirable, either for the railroad companies' or for the public. The public is interested in having the rules whereby conductors are to govern their action certain and definite so that they may be enforced without confusion and without stoppage of trains; and if the enforcement causes temporary inconvenience to a passenger, who by accident or mistake is without the proper evidence of his right to a passage, though he has paid for it, it is better that he submit to the temporary inconvenience, than that the business of the road be interrupted to the general annoyance of all who are upon the train. The conductor’s duty, when the passenger is without the evidence of having paid his fare, is plain and imperative, and it can serve no good purpose and settle no rights to have a controversy with him. The passenger gains nothing by being put off the car, and loses nothing by paying what is demanded and staying on.”—Hufford v. Grand Rapids & I. Ry. Co., 53 Mich. 120, 18 N. W. 580.
In a New Jersey case decided by Chief Justice Beasley (Petrie v. Pennsylvania R. R. Co., 42 N. J. Law [13 Vrom] 449), the facts were that: “The plaintiff was riding in the cars, by virtue of a ticket that did not give him the right to a discontinuous passage. Having stopped at an intermediate point, and having entered another train, he claimed the right to continue his journey on such ticket, under permission given by a conductor of the first train. Refusing to pay his fare, he was put off, it appearing that only train agents had the power to modify the force of such ticket's. Held, such expulsion was justifiable, although, at the trial, the plaintiff testified that it was, in point of fact, a train agent, and not a conductor, that had given him the privilege claimed.”
If the passenger in these cases was not allowed to contend with the conductor, when he was able to prove his contention, surely plaintiff in the case at bar ought not to have been allowed to contend with the conductor as to the distance between these two stations, when, as conclusively shown by the record, neither conductor nor passenger at that time knew the distance or could then determine the dispute except by stopping the train and delaying all passengers and the train until the distance could be measured. Such a course would have been unreasonable; un*443heard of. The law therefore^ will not allow the public to thus suffer hindrance and inconvenience incident to disputes between passenger and conductor in such matters, and says that the passenger must conform to the rule or leave the train. That is to say, this is one of the rules of transportation companies, and unless they are unreasonable the rules are the law of such cases.
The sole dispute in this case, and the ground upon which plaintiff rests his right to recover, is the distance between two given stations; he maintains that the distance is less than 5 miles, while defendant’s schedules, tariffs, time-tables, etc., show the distance to be 5.1 miles. It is conceded that if the distance is 5.1 miles, no more fare was demanded than the law (aside from the rules of the carrier) allows; in fact, the amount demanded was exactly what the statutes fix. It is also conceded that at the time the fare was demanded neither the conductor nor the plaintiff knew what the exact distance was — whether more or less than 5 miles. All that either had as a guide was the schedule, tariff rates, and time cards, issued by the carrier, and the rules of the carrier to which the conductor and the public are required to conform. Here the rules were not only reasonable, and therefore valid, but were the law as fixed by the statutes, except as to distances. The only possible mistake or wrong ever committed by the defendant was in the measuring of the distance between these two stations. If it be conceded that this was a mistake, it was one not to be corrected by damage suit (when a damage suit could be avoided by paying two cents).
Must the distances be established between all stations on railway lines by the verdicts of petit juries in damage suit cases brought by passengers who refuse to conform to the rules or tariffs of the carrier ? I say no; that the law does not require— will not allow — the question to be so settled.
The leading case on the subject of the right of a conductor to eject a passenger who refuses to show a ticket or to pay the fare fixed by the reasonable rules is that of Townsend v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 295, 15 Am. Rep. 419, wherein, among other things, it is said: ■
“In Hibbard v. New York & Erie Railroad Co., 15 N. Y. 455, it was held by this court that a railroad company had the right to establish reasonable regulations for the government of passengers upon its trains, and forcibly eject therefrom those who *444refused to comply with such regulations. Surely, a regulation requiring passengers either to present evidence to the conductor of a right to a seat, when reasonably required so to do, or to pay fare, is reasonable; and for noncompliance therewith such passenger may be excluded from the car.”
Here the plaintiff had no contract which he insisted upon enforcing; at best he only had a possible right, and he himself says that at the time he was ejected he did not know positively whether he had the right for which he was contending, because at that time he did not know the distance between the two stations. He therefore brought this action seeking to recover $5,000 as damages, against the defendant, in order to test the question whether or not the defendant had the right to make him pay two cents. Courts were not instituted for such purposes; the law does not sanction such actions, and will never allow such recoveries. Common carriers, such as railroad companies, are public servants, and their business, under certain limitations, can and should be controlled and regulated by statute, and they can and should be required to conform to such valid statutes and regulations, and to answer in damages to those of the public who suffer damages in consequence of their failures to so conform; but the statutes imposing the regulations have also provided the mode and means of compelling them so to conform, or to respond in damages therefor, and, in cases like this, have fixed penalties as for such failures. It is perfectly clear and certain that the law never intended that the distances between the stations on carriers’ lines should be determined or fixed by the verdict of petit juries in damage suit cases. The only disputed question of fact or of law that this case can settle is whether the distance between two stations on defendant’s line is more or less than five miles. One jury may decide it to be more, and another less; and 1,000 verdicts in similar cases would never settle the question.
There are two venerable and well-settled maxims of the common law of this and all other states, applicable to this case, on the undisputed facts as shown by this record; and the application of either will prevent any possible recovery of damages. The first is, “Volenti non fit injuria.” The second is, “De minimis non curat lex.” This record, I submit, shows on its face that plaintiff voluntarily suffered all the injuries, and that he suffered them for the purpose of bringing this suit.
*445If the plaintiff was entitled to recover anything it was, under his own evidence, an amount less than the jurisdictional amount of the circuit court ($50). It is perfectly certain that bringing the action originally in the circuit court was a fraud on the law and the jurisdiction of the court.—Exch. Nat. Bank v. Clement, 109 Ala. 277, 19 South. 814; Grier v. Campbell, 21 Ala. 327; Cowan v. Jones, 27 Ala. 317.