This is an action to recover damages by reason of the plaintiff's alleged unlawful ejection from one of the cars of the defendant railroad company.
The plaintiff, Mrs. Schaun, resides in Baltimore City, but spends the summer at Pen Mar on Western Maryland railroad, and it appears from the testimony that she frequently uses the defendant's road in travelling between these points.
On the 18th July, 1901, she purchased at Hillen Station, Baltimore, a Pen Mar excursion ticket. These tickets were issued by the defendant company at a greatly reduced price for use on the Pen Mar excursion train No. 13, and on that train only on the date stamped on the ticket. There were other conditions and among them that the excursion ticket must be presented to conductor on west-bound trip, who was required to issue in exchange a return ticket, Pen Mar to Baltimore, good only on excursion train No. 24, of date stamped on said return ticket and cancelled by conductor on margin thereof. This return ticket was not to be furnished by conductor unless he had personal knowledge that the individual by whom it was to be used was actually on west-bound excursion train on date stamped on said excursion ticket. It was further conditioned that this exchange ticket issued by the conductor, in exchange for excursion ticket from Baltimore to Pen Mar would be honored for passage only for the person asdescribed on such exchange ticket. On the exchange ticket itself is printed the following: "Description of Holder of Balt. Ticket No. 12108, who alone is entitled to use *Page 569 this return ticket from Pen Mar to Walbrook as indicated by punch mark." Following this are 12 small divisions on the ticket thus arranged:
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| Man | Dark | Short | Elderly |
|-------|-------|--------|------------|
| Woman | Light | Stout | Middle Age |
|-------|-------|--------|------------|
| Child | Tall | Slight | Young |
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In order to prevent the transfer of these tickets, the railroad company required the conductor to punch a general description of the passenger to whom such exchange ticket was given.
It appears according to her testimony that on the day named, Mrs. Schaun, the plaintiff, after purchasing her excursion ticket at Hillen Station got on the proper train gave up her Baltimore Pen Mar excursion ticket and received an exchange ticket which she said, believing it was correct, she put in her pocket without any inspection or examination. It is apparent that the slightest inspection of the ticket would have informed the plaintiff that she was not the person described as the holder thereof. Naturally she was much surprised, therefore, when on returning the same evening on the proper train the same conductor who gave her the exchange ticket refused to accept it, because it did not describe her personal appearance. The ticket called for a woman, light, slight and young, and the plaintiff was dark, stout and middle aged. She refused to pay the fare of $2.20 from Pen Mar to Baltimore and the conductor put her off at Blue Ridge Summit without using any undue force or violence. It also appears from the testimony of the witness, Hoover, that he was the conductor in charge of the excursion train the morning of July 18th — that he had known the plaintiff for three years and that he did not see her on the train that morning; that her daughter was, and that she was travelling on a Pen Mar excursion ticket. He also testified that by the rules of the company he was authorized to call on the brakeman to assist him in collecting and punching the tickets; that he had requested him to punch tickets that morning *Page 570 owing to the number of people that were on the train and the fact that he (the conductor), was liable at any moment to be called away to look out for signals or orders, and that he did not examine the ticket after he gave it to the brakeman to see whether it was punched correctly.
The witness, Gelbach, the brakeman, testified that he assisted the conductor, punched the tickets and handed them to the passengers; that he knew the plaintiff; that she frequently rode on defendants trains; he did not see her, but did see one of her daughters on the train on the morning of the 18th July. The witness, Miss Schaun, the daughter of the plaintiff who was referred to by the brakeman, testified she was not on the train at the time mentioned.
While the foregoing is a brief statement of only a part of the facts, sufficient has been said to present the one question the solution of which in our opinion, will dispose of this case. That question is presented by the defendant's first prayer by which the Court was asked to instruct the jury that there was no legally sufficient evidence to prove that the plaintiff was unlawfully ejected from the defendants cars.
Starting with the concession that the plaintiff was in fact upon the defendant's cars, for the jury evidently so found from the evidence under the Court's instruction given in lieu of plaintiff's second prayer, and also conceding, if, as the jury found, she was then on the train that the misdescription placed upon the exchange ticket was through the fault or negligence of the conductor or brakeman or both, we are to decide whether, inthis action, the plaintiff can recover.
Since the decision of Stocksdale's case, 83 Md. 245, it is settled law in this State, and the proposition is supported by the weight of authority, "that when a passenger receives a defective ticket from an agent of the company by reason of the mistake or negligence of the agent, the conductor may refuse to accept such ticket and is authorized to compel the passenger to leave the train if payment of the fare is refused." "In these cases" we said in the case just cited "the passenger should pay the fare demanded and seek his remedy by an action for the breach *Page 571 of the contract, and not by an action of tort for the ejection." In the case of Hufford v. Grand Rapids, 53 Mich. 118, the absolute necessity of such a rule is recognized by JUDGE COOLEY and he says that not only railroad companies, but the public is especially 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 proper evidence of his right to a passage, though he has paid for it, it is better that he should submit to temporary inconvenience than that the business of the road be interrupted to the general annoyance of all who are upon the train."
It is said by the learned counsel for the plaintiff that there has been an astonishing change in the views of the Supreme Courts of Missouri and Kansas upon this question, but there has been no such change in the views of this Court since we expressed our opinion in Stocksdale's case, supra, and so long as the law laid down in that case remains unquestioned an action of tort for damages will not lie on the case made by this plaintiff and she must be left, as is said, in Bradshaw v. South Boston RailwayCo., 135 Mass. 407 to her remedy, if any she has in an action against the defendant for a breach of contract.
But it is said the fact that the conductor who gave the plaintiff the defective ticket is the same one who on the return trip refused to accept it distinguishes this case from the Stocksdale and other cases of that kind. We cannot, however, understand what effect this fact can have unless the jury are to infer therefrom that when the conductor refused to accept the plaintiff's exchange return ticket he knew she was in fact on the train in the morning and knew also that he had erroneously punched the ticket. Now whatever the fact may be he swears he did not see the plaintiff that morning. The brakeman testifies that he did not see her and both of them swear they saw her daughter. But let us assume both he and the brakeman are mistaken. They may have forgotten. It is not reasonable to require that he should remember the fact that the plaintiff *Page 572 was on the train — any more than that he should be held to remember many others he was accustomed to see there day after day. The very fact that she and many others were constant travellers on his train would render it difficult for him to say with certainty whether she or they were on the train on any particular day. We do not think, therefore, it can be inferred merely from the fact that she was on the train or even that he saw her there that morning, that he remembered and knew the fact in the evening when she presented the ticket which upon its face described a person of entirely different personal appearance from the plaintiff. There is no other proof in the case that at the time he refused to accept the ticket on the evening train he knew she was on the train in the morning and that she was the person to whom he had given the rejected ticket.
If there was any legally sufficient evidence in the case of such knowledge on the conductor's part, then his conduct would have been entirely unjustifiable, but in the absence of proof, we cannot infer, nor allow the jury to infer, such knowledge on the part of its agent as would render the defendant responsible inthis form of action.
We are of opinion, therefore, that the judgment appealed from must be reversed, but without prejudice to the right of the plaintiff to enforce her rights, if any she has, in another form of action.
Reversed, without prejudice, with costs.
(Decided July 1st, 1903.) *Page 573