6791

#### KIRKLAND v. CHARLESTON AND WESTERN CAROLINA RY.

Carrier — Passenger—Issues.—A railroad company is liable for negligently and wilfully ejecting a passenger from an excursion train run by its servants for another, who fixed the rate of transportation, because he refused to pay the excursion round-trip fare, but offered the usual fare, if the passenger had no notice before boarding the train it was an excursion train and the rate of passage. Whether he had such notice was for the jury.

2. Evidence. — Whether the plaintiff had been convicted of any crime is not competent in this case.

Before Hydrick, J., Aiken, Winter Term, 1907.

Affirmed.

Action' by George D. Kirkland against -Charleston and Western Carolina Railway C’omjpany, originality brought in Barnwell County, but venue changed to Aiken 'County. From judgment for plaintiff, defendant appeals.

The twielfth exception referred ¡to in the opinion is:

12. “In the course of the cross-examination of the plaintiff, the following questions were asked: ‘Q. You have been indicted before? Mr. Davis: I object; he wasi acquitted and counsel knows -it. The Court: I sustain) the objection. Mr. Izilar: He can state if he voluntarily wishes to. The Court: It does not m|ake any difference if he has been indicted; wie are not trying himi here. Mr. Izlar: It -goes to his credibility. The 'Court: If he has been 'convicted it goes to his credibility. If he has been- indicted it is not; the best man on earth might be indicted for the most henious crime.

“ ‘Q. What offense were you indicted for ? The Court: Don’t answer that question. Mr. Iz-lar: You can answer the question if you want to. The Gourt: I say he -can’t answer it; if he answers it I will put him in jail for contempt of Court.’

“The Court erred in -ruling out the evidence and in not allowing the witness (plaintiff) to 'answter the questions as *274they Went to his credibility, and the rulings and remarks of the presiding judge were prejudicial to the case of the defendant.”

*Messrs. Laurie T. I star, James P. Izlar*and *James A. Willis,*for appellant.

*Mr. Laurie T. Izlar*cites: *Defendant had the right to contract to run the excursion train:*72 S. C., 223.

*Messrs. Dams & Best*and *Hendersons,*contra.

*Messrs. Henderson*cite: *If plaintiff did not know the train mas a special train he should have been treated as a regular passenger on a passenger train:*72 S. C., 134; 3 H. R. A., 156.

March 6, 1908.

The opinion of the Court was delivered by

Mr. Justice Gary.

This is: an action for damages alleged to have been sustained by the plaintiff through the negligence and wilful misconduct of the defendant in ejecting him from an. excursion train.

The complaint alleges: That on the 21st of August, 1903, he boarded one of the defendant’s passenger trains' at Varnville, to: go to Allendale, another station on defendant’s line, and was a passenger on said train; that after the train had passed Hampton and Brunson, the conductor demanded the fare; that he did not have a ticket, as the office at Vamville was not open a reasonable time before the train arrived; that he tendered .the conductor the legal fare from Varnville to Allendale, which was refused, and the conductor insisted that he pay $1.25, a sum greater than the legal fare, and this he refused to. do, whereupon he was wilfully, wantonly and maliciously ejected at Fairfax, and was' treated with indignity by the conductor and a crowd of drunken passengers, whom he called to his aid, though he mjade no resistance.

The defendant denied the allegations of. the complaint and alleged that 'the train which the plaintiff boarded at Varn*275ville 'wias not one of defendant’s regular passenger trains, but a train which had been chartered by one R. U. Hughes, and which defendant had agreed with Hughes to run from Rabbins to Beaufort; that it sold no tickets and edleoted no fares for passage on said train, buit that this wa© done by Hughes-, who fixed his -own- prices- and sold- hisi awn tickets, land that it, the defendant, had no right to sell any tickets or collect any fares for passage on said train, and that it -did noit collect -any fares, except at the instance of Hughes, and 'then only as his agent; the conductor and other agents of the defendant upon said trains were there solely for the purpose af running and operating the train safely for Hughes, for the failure to do which the defendant alone would be responsible.

The jury rendered a verdict in favor of the plaintiff for $1,350 and the defendant -appealed.

The first question that will be -considered is-, whether hlis Honor, the presiding judge, erred in refusing a motion for a nonsuit.

1 At the close of the plaintiff’s testimony, the defendant rhade a motion for a nonsuit on -the ground that the plaintiff had knowledge that it wlas an excursion train, and having refused to pay the fare demanded by the parties in -charge of the train, the railroad 'company wlas not 'liable. The nonsuit Was properly refused, as- the plaintiff testified that he did- not know it wlas an excursion train until he bad been riding on it for some time and had nearly reached his destination.

There is, however, another reason -why his Honor, the presiding judge, could not have granted the motion. Under the decisions in this State, the parties who entered into the contract with the defendant relative to the excursion train were the agents of the defendant.

In the ease of *Harmon*v. *Ry.,*28 S. C., 401, 404, 5 S. E., 835, the principle is thus stated: “When a railroad company accepts a -charter it assumes the performance of all the duties to 'the public which are imposed upon it by the charter *276or the general lawis oif the State, 'and it can not be permitted to escape from the obligations thus imposed upon it by transferring its- chartered rights and privileges, either to an individual or to another corporation. A corporation must of necessity always act through individuals., and -whether such individuals are called its officers, or agents., or its- lessee, can not affect the question of its liability *to*perform the obligation which it 'has incurred in consideration of its. chartered rights 'and privileges. It can not be permitted! to enjoy the benefits 'Conferred by its chanter without incurring the responsibilities incident ’thereto.” This doctrine is affirmed in .the oases of *Bank*v. *Ry.,*25 S. C., 216; *Bouknight*v. *R. R.,*41 S. C., 415, 19 S. E., 915; *Parr*v. *Ry.,*43 S. C., 197, 20 S. E., 1009; *Davis*v. *Ry.,*63 S. C., 370, 41 S. E., 468; *Smalley*v. *R. R.,*73 S. C., 572, 53 S. E., 1000, and *Franklin*v. *R. R.,*74 S. C. 332, 54 S. E., 578.

The Court uses the following language in the case of *Reed*v. *R. R.,*75 S. C., 162, 170, 55 S. E., 218: “The theory of the law is that a railroad company chartered by the State and afterwards making a lease of its franchises, is still regarded as operating the road through the lessee as its agent whenever the lessee commits an act resulting in damages against which the law, for reason of public policy, will not 'allow the lessor to- contract. A railroad company 'has the power to enter into a great many special agreements, but it can not make a valid contract whereby it will be exempt from liability for negligence. *Wallingford & Russell*v. *R. R.,*26 S. C., 258; *Johnstone*v. *R. R.,*39 S. C., 55, 17 S. E., 512. This principle is applied even when the action is by an employee based on negligence. *Johnson*v. *R. R.,*55 S. C., 152, 32 S. E., 2, 20 Enc. of Law, 154-5. The reason for the rule is that such contracts are against *public policy.*The defendant could not, therefore, escape liability by leasing its road.”

The defendant did not have the power to enter into' such a contract as would ’exempt it from liability for negligence *277and wilful misconduct in 'ejecting a pa/ssenger from its train of cars.

When a person gets aboard a train for the purpose of traveling he has the right, generally, to presume that he will only be required to pay the usual fare, and if the railroad imposes conditions with which he is compelled to> comply before be can- become -a passenger, it is incumbent on the railroad to show that hie had notice of such conditions., 'by advertisement or otherwise, which conditions could be waived by the company. *McCarter*v. *Traction Co.,*72 S. C., 134, 51 S. E., 545; *White*v. *R. R.,*115 N. C., 631, 44 Am. St. Rep., 489; *Fitzgibbon*v. *R. R.,*108 Iowa, 614, 93 N. W. Rep., 276; *Texarkana, etc., Ry. Co.*v. *Anderson,*53 S. W. Rep., 673; *Moore*v. *R. R., 56*S. W. Rep., 161; *Collins*v. *R. R.,*39 S. W. Rep., 643.

The public Was invited to become passengers on the excursion. -train ulpon condition that each person who got on board purchased a round-trip ticket, and the question whether the plaintiff had notice of such requirement was properly submitted to the jury.

■2 The case of *State*v. *Wyse,*33 S. C., 582, shows that the twelfth exception can not be sustained. These views practically dispose of all question presented by the exceptions.

Judgment affirmed.