Grand Trunk Railway v. Beaver

the judgment of Mr. Justice G-wynne.

Chicago and Alton Railroad Co. v. Willard ; Hibbard v. New York and Erie Railroad Crawford v. Cincinnati, etc., Railroad Co.

And see Duke v. The Great Western Railway

The defendants contracted to carry the plaintiff to Caledonia and have failed to fulfil their contract.

See Butler v. The Man- .chester, etc., Railway Co. on which the Court Appeal relied; Henderson v. Stevenson (7) ; Maples v. .New York, etc., Railroad Co. ; The Queen v. Caister As to the liability of the defendants for the con- -ductor's acts see Ferguson on Rights and Duties of Railways

McCarthy Q.C. in reply. In Butler v. Manchester, etc., Railway Co. (6) the only penalty for not producing a ticket was payment of fare from the nearest station, and the conductor ejected the passenger. That case is distinguishable from this where the statute expressly ,authorizes ejectment.

I am of opinion that this appeal should dismissed.

J.-I would allow this appeal for the reasons given by Osler J. in his dissenting opinion. The following United States cases support that view of the case

Chicago * Alton Railroad v. Willard The Illinois statute provides "that if any passenger any railroad, car or train shall refuse upon reasonable demand to pay his fare, or shall etc. (relating to disorderly conduct) it shall be lawful for the conductor of the train to remove or cause to be removed such passenger from the train." In this case, the facts were almost identical with those in the present.

In Hibbard v. New

York and Erie Railroad (2) it was held that a passenger who had once exhibited his ticket and refused to do so again when requested by the conductor might be put off the train.

In Crawford v. The Cincinnati Hamilton and Drayton Railroad it was held that the purchaser of a nontransferable commutation ticket who had lost it, and refused on account of such loss to pay his fare upon the train, could not maintain an action of tort against the company to recover damages for being ejected by the conductor in compliance with a rule requiring him to do so in case of non-production of a ticket and refusal to pay fare.

To the same effect is Shelton v. The Lake Shore and Michigan Southern Railway Co.

Also Louisville and Nashville Railroad v. Fleming The court in its judgment quotes from and adopts the language used in Frederick v. Marquette, etc., Railroad Co.

In Jerome v. Smith (1) Wheeler J., in delivering -e the judgment of the court, says at page 234:

J. In Haley v. Chicago and North-western Railway Co.

where an intoxicated man was forcibly ejected from a train upon failing to show a ticket or to pay fare, and was killed, it was held that he was rightly ejected.

GWYNNE J.-This case has proceeded in the courts below upon the authority of Butler v. Manchester & Sheffield Railway Co. which case, as has been ably pointed out by Mr. Justice Osler in his judgment in the Court of Appeal for Ontario, has no application in the circumstances of the present case. Judgments of the courts in England upon cases arising there upon statutes wholly different in terms from the statutes of the Dominion of Canada affecting the. same subject matter cannot have any binding effect upon the courts in this country in cases arising upon the statutes in force here.

In Butler v. The Manchester Sheffield Railway Co. there was no statute authorizing the conductor of a railway train to put a passenger off the train either because of non-payment of his fare to the conductor or for non-production of a ticket.

The company were empowered by statute to make by-laws for regulating their passenger traffic. They did make such by-laws among which they enacted as follows:- And it was held that this by-law did not authorize the conductor to put a passenger off a train who did not produce a ticket authorizing him to travel on the train and who excused himself by the allegation that. he had purchased a ticket but had lost it, for the bylaw had imposed in such a state of facts an obligation only upon the passenger to pay the fare from the place whence the train had originally started to the place of his destination, and therefore that putting the passenger off the train was an actionable wrong. Now in the present case it is true that the Grand Trunk Railway Company, ever since their incorporation in 1852, have had power to make by-laws regulating the traffic on their railway; and they have done so, but there is among them no by-law in relation to the particular subject under discussion nor, as the company contend, is there any necessity for such a by-law inasmuch as their case is, as they contend, provided for by statute. As far back as the General Railway Clauses Act, 14 & 15 Vic. ch. 51 which is incorporated with the Grand Trunk Railway incorporation act, 16 Vic. ch. 37, in its 21st sec. subsec. 1, which is incorporated into the Consolidated Railway Act, 51 Vic. ch. 29, as sec. 247 of that act, enacted as follows :- And in the sixth subsection of the same sec. 21, which is incorporated as sec. 248 of the Railway Act 51 Vic. ch. 29, it was enacted that:- The statute law which the defendants invoke in their defence was enacted as far back as 1851 and has ever since continued in force without any alteration in its terms and must be construed now, appearing as it does verbatim et literatim in the Railway Act of 1888. sections 247 and 248, precisely as it would have been construed immediately after the first passing of the act in 1851, that is to say, having regard to the circumstances and condition of the country and the ordinary practice of railway companies in their first institution in the province and which has continued to the present day in relation to the collection of the fares passengers travelling on railways-the practice being for passengers to pay their fares to the conductors on the trains either in money or by handing to him a ticket purchased by the passenger before entering the train. In modern times the purchasing tickets before entering the train is more general than it formerly was but it is still quite optional with passengers to purchase a ticket for the purpose of being delivered to the conductor on the train as and for the passenger's fare, or to pay the fare in money to the conductor. It is in relation to this state of things so existing at the time the passing of the act that we must construe the provisions of the law invoked by the defendants. That law, for the security of the passenger, enacts that no person on a passenger train shall be entitled to receive or demand from any passenger any fare, or ticket, unless he shall wear a badge indicating his office. This section plainly implies a dealing by the legislature with a practice well known to exist of the companies, through some servant of theirs, collecting upon the trains when in course of travelling on the railway the fares of passengers either in money or in tickets, if any there should be, authorizing the holder to travel on the train upon which he should produce it. Then for the protection of the companies the statute. enacts that it should be lawful for the conductor of a train of cars to put off the train a passenger refusing to pay his fare. It is obvious that this refusal spoken of in the statute is a refusal to pay the fare to the conductor the person recognized by the statute as the person authorized to collect the fares of all passengers travelling upon the train of which he is conductor and who for such refusal is empowered to put the passenger off the train.

Now a passenger may pay his fare to the conductor in money or in a ticket or bon issued by the company as " good" for the fare if used of the date for which it is issued; but to avoid being in the position of a person refusing to pay his fare to the conductor the passenger must upon demand by the conductor deliver to him either money or such a bon in satisfaction of his fare for being conveyed upon that train. The conductor of any passenger train is, in a plain, common sense understanding of the terms of the statute, the person responsible for the collection of the fares of all passengers upon his train and the person to be satisfied of such payment either in money or by the production of a ticket allowing the person producing it to travel on the train of which he is the conductor. The judgment appealed from is to the effect that this is not so, but that when a railwayTHE company issues a ticket to a purchaser thereof for a passage on a particular train such ticket constitutes a contract between the purchaser and the company that the company will carry the purchaser upon such train, and that they must do so whether he produces the ticket to the conductor or not; and that in case even of his refusal to produce to the conductor.or to pay his fare in money to him he cannot under the terms of the statute be put off the train but must be carried to whatever place upon the railway to which the train by which he is travelling goes that he may select as the point of his destination. In short that the conductor is a wrong doer, and the company responsible for his wrong, if he should put a passenger off his train who excuses himself for not paying the conductor his fare in money by the simple allegation that he had purchased a ticket which authorized him to travel upon the train on which he was but that he had forgotten to bring it with him-or that he had lost it-or that he had destroyed it-or that he had it in his pocket but would not produce it; such a construction would render the statute absolutely inoperative.

But let us consider what is the true nature of the contract involved in the ticket which the plaintiff had purchased, and which he had not with him, or if he had did not produce, when on the train from which he was put off.

It was upon its face declared to be:

Now, construing the contract evidenced by that ticket in the language of Lord Esher in Butler v. The

Manchester and Sheffield Railway Co. as implying only such terms as were clearly and obviously in the contemplation of the parties, can it be doubted for a moment that both parties had in contemplation what had been the practice and user ever since the introduction of railways into Canada, without ever a doubt being entertained upon the point, namely, that the ticket was by the purchaser and was issued by the company for the sole purpose of being produced to the conductor of the train upon which the purchaser should travel upon the faith of it, to be taken up by such conductor as and for the fare of the purchaser for his being carried upon such train, and upon the thorough understanding and iitent that, unless so produced, it was utterly valueless and good for nothing? It was only when so produced within the period mentioned on the ticket that it was to be, or could be, good for - the continuous trip also mentioned on the ticket. The contract simply was to convey the purchaser upon one continuous trip from Detroit to Caledonia (up to the 14th October, 1892) upon any train of the company travelling between those two places upon which the purchaser should travel, and when called upon for his fare should produce and deliver up the ticket to the conductor of the train as and for such fare.

No other construction of the contract is admissible, and this being the plain, sensible construction of the contract the plaintiff, upon the facts in evidence, was, when called upon for his fare by the conductor, in the same position precisely as if he had never purchased the ticket, and not having paid his fare to the conductor was, in the terms of the provision of the statute in that behalf, liable to be put off the train by him. In 1857, in Duke v. The Great Western Railway Co. a precisely similar question arose upon the pleadings under an act relating to the Great Western Railway 16 Vic. chap. 99, the twelfth section of which (the Great Western Railway not being subject to the provisions of the general Railway Act of 1851, was similar to the abdve provisions extracted from 14 & 15 Vic. chap 51. The late Chief Justice Sir John B. Robinson, delivering'judgment in that case, makes use of language. precisely applicable to the present case.

He says there:

This practical common sense understanding of the statute, as here expressed, has never been questioned, that I am aware of, until the decision in the present case now under consideration in appeal. It was doubtless in view of the facts and circumstances above treated by the learned chief justice, as being in the knowledge of every one, that the sections extracted from 14 & 15 Vic. chap. 51- were enacted, and were re-enacted in 22 Vic. chap. 66, secs. 95 and 106; and again in the Railway Act of 1868, 31 Vic., chap. 68, sec. 20, subsecs. 1 and 12; and again in the Railway Act of 1879, 42 Vic. chap. 9, sec. 25, subsecs. 1 and 12; and again, in 1886, in chap. 109 of the Revised Statutes of Canada, sec. 25, subsecs. 1 and 12; and again, lastly, in 1888, in 51 Vic. ch. 29 sections 247 and 248.

In the courts of the United States where the practice as to the mode issuing and collecting tickets in payment of fares is identical with that existing in Canada the law is laid down in the same manner. In one of them, Frederick THE v.The Marquette Railroad Co. (1), the court pronouncing TRUNK judgment say

It is within the common knowledge and experience of all travellers that the uniform and perhaps the universal practice is for all railroad companies to issue tickets to passengers with the places designated Gwynne J. thereon from whence and to which the passenger is to be carried-and that these tickets are presented to the conductor or person in charge of the train and that he unhesitatingly accepts such tickets.

And again:- There of course will be cases where a passenger who has lost his ticket, or where through mistake a wrong ticket has been issued to him, will be obliged to pay his fare a second time.

And again

There is but one rule which can safely be tolerated with any decent regard to the rights of railroad companies and passengers generally. As between the conductor and passenger and the right of the latter to travel the ticket produced must be conclusive evidence and he must produce it when called upon as the evidence of his right to the seat he claims.

In the acts of the state of New York 1850, ch. 140 section 85, is a provision in language so identical with that of subsection 6 of section 21 of 14 & 15 Vic. ch. 51 that the latter seems to have been taken from the former.

And in Wiliets v. The Buffalo and Rochester Railroad Co. (2), the Supreme Court of the state of New York, with reference to that statute, say:- It is however argued that as the fare has been paid to Buffalo the act of the conductor cannot be justified (for putting off the train before reaching Buffalo a passenger who neither produced a ticket or paid the fare in money).

Our attention has been directed to a provision of the general railroad act of 1850 which makes it lawful for a conductor if a passenger refuses to pay his fare to put him and his baggage off the cars.

And again

Can it be maintained that the company and its servants are bound to know whether the particular individual has paid his fare? This under the present mode of travelling would be impossible.

Barb. 590.

In another case Townsend v. The New York Central Railroad Co. it was held by the Court of Appeal for the state of New York that the conductor of a train is not bound to take the word of a passenger that he had ComPArN purchased a ticket showing his right to a passage on that train. Indeed it stands to reason and common ( J sense thaL uuLnhig the production of a ticket to the conductor on the train upon which a passenger is travelling will fulfil the purpose for which the ticket was issued, namely, to be delivered up to the conductor of the train which the passenger enters to be carried upon the faith of his ticket which when so produced operates as a payment to the conductor of the passenger's fare for his being carried on that train.

The only question in the present case is whether the facts in evidence bring the case within the purview of the statute which has equal, if not greater, binding effect than a by-law, rule or regulation of the company in like terms would have, and for the reasons given I am of opinion, both upon principle and authority, that they do, and that therefore the appeal should be allowed with costs and the judgment of Mr.

Justice Rose restored.

and JJ. concurred.

Appeal allowed with costs.