McMahon v. Third Avenue Railroad — 47 N.Y. Super. Ct. 282

Majority

p. 282

THOMAS McMAHON, Respondent, v. THE THIRD AVENUE RAILROAD CO., Appellant.

Headnote

Common carriers—rights of passengers under ticket issued for portion of continuous route.

Plaintiff having paid for passage over defendant’s route of street railway, was given, at an intermediate point thereon, in return for an additional sum paid by Mm, a ticket, on which were these words: “ Third Avenue Railroad Company. Good only from Sixty-fifth street up to Yorkville and Harlem for a continuous ride. By order of the President.” The ticket was indorsed, “ Conductor’s check, July 6th, 1878. ” Plaintiff did not then use the ticket, but afterwards, and on the same day, he entered one of defendant’s cars below, and paid fare to such intermediate point, and at a place above said point tendered the conductor the ticket, which was not accepted, and on his refusal to again pay fare, he was ejected from the car,— Held, that in the absence of knowledge by the plaintiff of any rule limiting his rights under said ticket, the company was liable for the above act of its servant.

Before Sedgwick, Ch. J., Freedman and Truax, JJ.

Decided April 4, 1881.

This is an appeal by defendant from a judgment entered on the verdict- of a jury, and from an order denying a motion for a- new trial on the minutes.

On July 6, 1878. the plaintiff entered one of the defendant’s cars at Fiftieth street, paid his fare, five cents, and rode up to Sixty-fifth street. The car he was on was what is known as a short car, and did not go above

p. 283

that street. He got off and purchased of one of the defendant’s servants a ticket on which were these words: “ Third Avenue Railroad Company. Grood only from Sixty-fifth street up to Yorkville and Harlem for a continuous ride. By order of the president.” The ticket was indorsed, “Conductor’s check, July 6th, 1878.” The plaintiff' intended to go to Seventieth street. He waited a while at Sixty-fifth street for a car to come, and none coming, he walked to the end of his journey. In the afternoon of the same day, he entered another of defendant’s cars at Fifty-seventh street, intending to ride to Seventieth street, paid five cents for his fare, and at a place above Sixty-fifth street tendered the conductor of the car the above ticket. This the conductor refused to accept. The plaintiff refused to pay more, and thereupon the conductor, without any undue violence, put the plaintiff off the car. For this alleged wrongful act the plaintiff brought his action.

Lauterbaoh & Bpingarn, attorneys, and H. Mor rison, of counsel, for appellant.

T. F. Neville, attorney, and William B. Harrison, of counsel, for respondent.

The defendant moved to dismiss the complaint on the ground that under the evidence no cause of action was shown to maintain the complaint; and that the ticket produced in evidence did not authorize the plaintiff to ride upon the car on the second occasion, in the afternoon, he, the plaintiff, not having used the ticket for the continuous ride on the occasion and at the time he first received it. This motion was denied, and the defendant duly excepted. The defendant then moved the court to instruct the jury to find a verdict for the defendant. This motion

p. 284

was denied and the defendant duly excepted. The court charged the jury, among other things, that the ticket offered in evidence,- bound the defendant to carry the plaintiff when he presented it, and that defendant had no business to turn plaintiff off from the car. To this the defendant duly excepted.

I am of the opinion that none of these exceptions were well taken. The ticket contains the contract between the plaintiff and the defendant. The meaning of the words on it is plain. They were rightly construed by the learned judge before whom the case was tried. The language of the ticket does not connect the ride below Sixty-fifth street with the ride above that street.

Besides, the plaintiff offered the ticket on a “continuous ride.” He did not leave the car, after he entered it, until he was put off by the defendant’s servant. The ticket entitled the plaintiff to a ride upon any passenger car run by the defendant. It contained no notice of any restriction or limitation of the right which it purported to give (Moroney v. Old Colony, &c., 106 Mass. 153 ).

The ticket, prima facie, was evidence of the plaintiff’s right to that “ride,” and the conductor had no right to demand fare, and to refuse the ticket when it was tendered him. It was not proved that the plaintiff had notice of any rule limiting him to a particular car, and, therefore, he had a right to ride on any of the defendant’s cars, at least on the day the ticket was dated (Pier v. Finch, 24 Barb. 514 ; Gale v. Del., Lack. &c., 7 Hun, 673 ).

The judgment and order are affirmed, with costs.

Sedgwick, Oh. J., and Freedman, J., concurred.

Cases cited

Pier v. Finch 24 Barb. 514 N.Y. Sup. Ct. 1857-06-01 p. 284