Dunphy v. Erie Railway Co. — 42 N.Y. Super. Ct. 128

Majority

p. 128

JOHN DUNPHY, Plaintiff and Respondent, v. THE ERIE RAILWAY COMPANY, Defendant and Appellant.

Headnote

COMMON CARRIER OF PASSENGERS.

Contracts with ; Tickets for passage ; Rights of passengers PURCHASING SAME IN REGARD TO PASSAGE; REASONABLE RULES AND REGULATIONS; WHEN NOTICE OF THE SAME NECESSARY.

The rights of the passenger rest upon the contract that was made when he purchased his ticket. The benefits he gained as to times and trains, and the journey, were then settled and fixed, and the limitations of his rights were then settled and fixed.

If the whole of plaintiff’s rights were set forth by the ticket he purchased (see opinion), he had a right to nothing but a continuous trip from New York to Rochester, and the ticket was not evidence of fiis right to take up another trip without paying fare, after he had stopped at an intermediate station.

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But in this case the defendants had rules and regulations, that governed or limited this ticket, and its use by the passenger, that were more favorable to the passenger, than the contract as expressed by the ticket itself. The passenger did not ask that these rules should be expressed on the ticket, and he did not even inquire about them.

In the case at bar these rules were reasonable, and did not take from passengers any right they would have at common law, under the contract as made. It is not a case where the rules seek to limit any common-law liability of the carrier, for breach of duty, &c. They enlarged and increased the rights and privileges of the passenger, beyond these embraced by the contract itself, and therefore no special or personal notice of the same to the passenger was necessary.

Ignorance of' such rules and of the restrictions consequent thereof, in such a case, does not alter the contract, nor prevent the rules and the restrictions being a part thereof. They enlarged the passenger’s rights and privileges of transportation, subject to certain restrictions and forms, which were reasonable, and if the one was accepted, the other was coupled and united therewith. In the present instance, although the ticket gave no privileges beyond a continuous trip, yet the rules gave the passenger all he required as to stopping on the way. He was conscious that he did not know the rules exactly, but he did not seek for any information in regard to them, and because he was ignorant of the reasonable form in which the defendant granted the privilege, he claimed the right to exercise that privilege hi a form and manner devised by himself.

There was error in the charge of the judge before whom the case was tried, to the effect that the plaintiff could recover unless it was proved that he had notice of these rules and regulations that affected the ticket.

Before Sedgwick and Sanford, JJ.

Decided March 5, 1877.

Appeal from judgment on verdict.

The action was for damages for the unlawful ejection of plaintiff from the ear of defendant, while plaintiff was on a journey.

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It appeared on the trial that plaintiff bought of one of defendant’s ticket agents in Brooklyn, the following ticket:

S I ERIE RAILWAY COMPANY. | E _/ <

New Yobk

Rochester.

Good for five days only from date.

Jno. N. Abbott,

Gen’l Ticket Agent.

w'l YD

On the back is stamped the following:

j. d. mcgowan,

Ticket Agent Erie Railway, No. 2 Oourt Street,

Feb’y 14, 1874. Brooklyn, N. Y.

There was no testimony that the plaintiff asked for any particular kind of ticket for his journey from New York to Rochester, or that the agent made any statement of the rights of the plaintiff under such a ticket. He started from New York on January 16, 1874, and he presented Ms ticket to different conductors from time to time, who cut the ticket by punches at the letters E, D, and S. It subsequently was shown that these letters referred to different divisions 'of the defendant’s road, and the letter W to the last division, from Corning west to Rochester. The plaintiff first stopped at Binghamton, which was in the Susquehanna division. On the 17th he went on, at Binghamton.

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When the train was a short distance from that place, the conductor asked for his ticket, and informed the plaintiff that he could not receive it, as it had been used for that division, viz. the Susquehanna division, and that the plaintiff must pay fare from Binghamton to Corning, and at Corning the ticket would be good from there to Rochester.

The defendant first refused to pay the fare. On the trial some testimony was given to show that he after-wards, before the bell was rung as'a direction to, stop the train, offered to pay his fare. There was opposing testimony to show that the defendant did not offer to pay fare until the bell had been rung and the train had stopped. The conductor, without violence, compelled the plaintiff to leave the train.

It was proved that a long time before the ticket was sold, the defendant had made and extensively published through ticket-offices and all passenger cars, on placards, regulations which forbade a passenger with a ticket like the one in question, stopping at a station in one division and then using the ticket for another trip on the same division, but required that if the passenger wished to stop and afterwards to proceed, he should give up his ticket and procure from a conductor another ticket to be used for the rest of the passage.

The court in substance charged the jury that the plaintiff had a right to continue his journey on the ticket he held, unless the jury should find as a fact, that he had notice of the regulations put in testimony, and also charged that these regulations were reasonable.

The defendant’s counsel requested the" court to charge that if the bell was rung to signal for the train to stop before the plaintiff offered to pay fare, the subsequent offer to pay did not give the plaintiff a right to go on with the train. This was refused, and the defendant excepted.

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The jury found for the plaintiff.

The rights of the plaintiff rested upon the contract that was made when he bought the ticket. The benefits he gained as to times and trains, and the journey, were then settled and fixed, and the limitations of his rights were then settled and fixed.

If the whole of plaintiff’s rights were signified by what was on the ticket, he had a right to nothing but a continuous trip from New York to Rochester, and the ticket was not an evidence of his right to take up another trip without paying fare after he had stopped at an intermediate station. The alternative would be that he had a right to go from New York to Rochester by breaking his general passage into as many trips as he chose. This seems to me so clear that it is not necessary to cite cases to support it.

The fact that the plaintiff was left in possession of the ticket after it had been examined by the former conductor a short time before his stopping at Binghamton, could not give any new right. That conductor did not know that the plaintiff meant to break his journey, and leaving the ticket with plaintiff was but leaving a voucher of a right to proceed on a continuous passage if the plaintiff chose to use the ticket in that way.

But the whole of the contract was not manifested by the contents of the ticket, and we will suppose that the plaintiff, when buying his ticket, had in view a right to stop upon his ticket and resume his journey. The plaintiff must have known that a right to a passage of the kind he wanted, must have some limitations. The plaintiff knew that the ticket gave a right to go upon some trains only, running at certain times only, and not upon all trains at all times.

When the ticket was bought the plaintiff did not ask for a ticket which would give the privilege he

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claimed in this action, nor did the seller represent that the ticket would give such a privilege. The case is left, then, that the plaintiff made a contract for a passage with limitations which he knew existed, but were not expressed, and which, although he did not know their specific character, he did not ask to be expressed. Furthermore, he must have known that these limitations were such as the defendant had made by its rules.

In the present case the rules were reasonable, and did not take from passengers any right they would have by common law, to demand that the defendant should carry them. It is not a case where the carrier seeks to limit, by rule or notice, any common-law liability for breach of duty as common carrier. The defendant’s rights are based upon the contract itself, voluntarily made by plaintiff, and the rules are adduced to show what the contract'was.

The plaintiff swore he did not know the nature of the rules, and consequently of the restrictions. Did that ignorance alter the contract, or result in the restrictions not being a part of the contract ? „

If the regulations had not been put in proof, there would have been no evidence that the defendant ever agreed to carry the plaintiff, after he had stopped at Binghamton, on a new journey from Binghamton to Rochester, without paying fare. And the rules contained only the restriction that if he wished to stop, he should procure from the conductor a new ticket without further payment.

On general principles, equity does not find a ground for annulling contracts, because the party was ignorant of the particulars of the agreement into which he intentionally entered. Mere ignorance of the exact stipulation does not show that if he had known he would not have contracted. Upon the stipulations being disclosed, if they are not extraordinary, he

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could not show that if he had known them, he would not have assented to them. The substantial fact would be that he voluntarily assented to the contract, limited by all reasonable, although undisclosed exceptions that were lawful. And whether these exceptions were a or 5, it would not be a material inducement to the contract that they were the one instead of the other, or instead of being both.

But if the contract might have been avoided in the first instance, if the party enters upon its enjoyment and claims any part of its advantages, then all parts of the contract, unmodified, are in force.

In the present instance, the-rules gave the plaintiff all he wished as to stopping. He was conscious that he did not know the exact rule, but did not ask for information as to it. In substance, because he was ignorant of the reasonable form in which the defendant had given him the privilege, he claimed a right to exercise that privilege in a form devised by himself.

I am therefore of opinion that there was error in charging that the plaintiff could recover, unless, in fact, he"had notice of the regulations.

It is unnecessary to examine the other exceptions, as the one discussed is of main importance.

Judgment reversed. Hew trial ordered, with costs to appellant to abide event.

Sanford, J., concurred.