#### Pennsylvania Company *v.*Wentz.

1. The power of a railroad company to make and enforce a regulation that one or more designated passenger trains on its road shall not stop at specified stations or places, is subject to legislative control; and by the act of 1852, § 26, as amended in 1867 (S. & S. 114; Rev. Stats. § 3320), such power is taken away as to municipal corporations containing three thousand inhabitants.

2. Where one traveling on a passenger train of a railroad company, presents to the conductor a ticket issued by such company, authorizing him to ride from one to another designated station, “only on such trains as stop regularly at both stations,”'and is ejected from the cars by such conductor between such stations, it will be no defense to the passenger’s action against the company for damages, that by the regulations of the company, the train on which he was traveling did not stop at the latter station, if the ticket was issued since the passage of the act of 1867, and such station was in a municipal corporation which, at the time the ticket was issued, had a population of three thousand inhabitants, and the passenger believed when he took passage on the train that it stopped at both stations.

Error to the District Court of Crawford County.

In 1876, John Wentz commenced an action in the court of common pleas of Crawford county,.against the Pennsylvania Company, operating the Pittsburgh, Fort Wayne and Chicago Railroad, to recover damages sustained by being ejected from a train of cars of the Pennsylvania Company in which he was riding as a passenger. The facts are as follows: Wentz has resided, since 1869, on his farm, one and one-half miles from Bucyrus, a municipal corporation containing, in 1870, and ever since, more than three thousand inhabitants, and being the county seat of Crawford county. He desired to attend the Centennial Exhibition at Philadelphia, and seeing that the Pennsylvania Company was selling railroad tickets to and from Philadelphia at reduced rates, he applied at the office of the company, in Bucyrus, for a ticket to Philadelphia. He was informed, however, that he could not obtain such ticket there, but could obtain it at Crestline, twelve miles further east on the company’s road. He then bought a ticket from Bucyrus *334to Crestline and return. That ticket contained these words : *“*In consideration of the reduced rate at which this ticket is sold, the'purchaser agrees to use it only on such trains as stop regularly at both stations named (Bucyrus and Crestline), and for a continuous trip each way only.” He went to Crestline on August 11, 1876, presenting his ticket, which was a sufficient voucher for his fare to that place, and retaining such ticket as a voucher that his fare was paid for his return from Crestline to Bucyrus. At Crestline he purchased of the company a ticket to Philadelphia. He remained at Philadelphia until August 21, 1876, when he purchased of the company a ticket from Philadelphia to Crestline, and took passage for the latter place. At Pittsburgh he and the other passengers were required to change cars, and were placed in what was called the limited mail, a passenger train of the company running from New York through Pittsburgh, through Crestline, thence through Bucyrus, and on to Chicago. Arriving at Crestline, where the train was stopped for a few minutes, he retained his seat, and when the cars had reached a point about four miles from Crestline, and within eight miles of Bucyrus, the conductor came to him for his fare. lie presented the ticket he had purchased at Bucyrus, but the conductor informed him that the limited mail, on which he was then riding, did not stop at that place, and that he would be carried to Eorest, which is twenty-eight and one-half miles west of Bucyrus, on payment of eighty-five cents. He said he was willing to pay eighty-five cents, but not willing to go to Eorest, and he insisted on stopping at Bucyrus. The conductor then stopped the train and told him he must get off or be put off, and thereupon he left the train. This was about one o’clock at night. He walked home, arriving there at five o’clock in the morning. Soon afterward he brought suit against the company and obtained a verdict and judgment for $87.50 That judgment having been affirmed in the district court, this petition in error was filed to reverse both judgments.

By the printed rules and regulations of the company, the limited mail did not stop at Bucyrus.

By section 26 of the act relating to incorporated companies, *335as amended in 1867 (S. *&*S. 114; Rev. Stats. § 3320), it was provided as follows: “ Sec. 26. That every railroad company in this state shall cause all its trains of cars for passengers to entirely stop, upon each arrival at any station, at any town or village having a population of three thousand, and all trains advertised by such company to stop at any station for the receiving of passengers shall stop the same at such station for a time sufficient to receive and let off .passengers; and every company, and every person in the employment of such company, that shall violate, or cause, or permit to be violated, the provisions of this section, shall forfeit and pay for each offense 'not more than one hundred, nor less than twenty-five dollars, to be recovered in a civil action, on complaint of any person before any justice of the peace of the county in which such violation shall occur, and in all cases of violation of the provisions of this section, the company whose agents shall cause or permit such violation shall be liable for the amount of such forfeiture, and in all cases the conductor upon such train shall be held *prima facie*to have caused the violation of this section, which may occur by the train in his charge, and said forfeiture to be recovered in the name of the state of Ohio for the use of common schools.” ■

*J. T.*Brooks, for plaintiff in error:

The agreement to use the ticket only on trains which regularly stopped at Bucyrus was valid, notwithstanding the act of 1867 (S. *&*S.-114.), and the ejection was lawful. *Railroad Co.*v. Powell, 40 Ind. 37; *Fink*v. *Railroad Co.,*4 Lan. 147; *Nuzum*v. *Railroad Co.,*50 Ind. 141; *Railroad Co.*v. *Applewhite,*52 Ind. 540 ; *Railroad Co.*v. *Fitzgerald,*47 Ind. 7, 9 ; *Powell*v. *Railroad Co.,*25 Ohio St. 70; *Crawford*v. *Railroad Co.,*26 Ohio St. 580; *Shelton*v. *Railroad Co.,*29 Ohio St. 214; *Railroad Co.*v. *Rogers,*28 Ind. 1; *O'Brien*v. *Railroad Co.,*15 Gray, 20; *Railroad Co.*v. *Whittamers,*43 Ill. 420; *McClure*v. *Railroad Co.,*34 Md. 532. The statutory remedy is exclusive, and beyond that the statute has no force. Sedg. Stat. *&*Con. L. 94, 96, 401; *Smith*v. *Lockwood,*13 Barb. 209; *Lanning*v. *Smith,*8 Cow. 146; *Ren**336*wick*v. *Morris,*7 Hill, 575 ; 1 Hilliard on Torts, 111; *Brown*v. *Railroad Co.,*22 N. Y. 195.

*S. R. Harris,*for defendant in error:

64 Ohio L., 142 ; *Welsh*v. *Railroad Co.,*10 Ohio St. 65; *Railroad Co.*v. *Curran,*19 Ohio St. 1; *Brockway v. Lascala,*Edm. Sel. Cas. 135 ; *Hanley*v. *Harlem, R. Co.,*Id. 359 ; *Oliver*v. *Railroad Co.,*Id. 589; *Caldwell*v. *Steamboat Co.,*47 N. Y. 282; *Cook v. Railroad Co.,*3 Keyes, 476.

Okey, C. *J.*

The claim is urged that when Wentz purchased the ticket at Bucyrus, and also when he retained his seat in the limited mail at Crestline, he knew that train did not stop at Bucyrus ; and hence, that in making the agreement the parties were *in pari delicto,*and that in retaining his seat at Crestline, Wentz was guilty of negligence, either of which facts should defeat a recovery. But we need not determine how far such knowledge should affect a recovery. It is sufficient to say the court charged the jury that such knowledge, if he had it, would defeat Wentz’s action, and that the jury found in his favor. This, therefore, was in effect a finding of the jury that he did not have such knowledge; and, after a careful examination of the evidence, we cannot say such finding was clearly wrong.

A further claim is made, that there was a special contract between Wentz and the company. No doubt a special agreement between the parties that Wentz should only use the ticket he purchased at Bucyrus upon a particular train would have been valid, whether made before or after the passage of the act of 1867. But no such agreement was proved. Nobody testified to anything of the sort. Indeed, there was no evidence whatever that any conversation concerning any special agreement between the parties was ever held. The only facts to show such agreement were the words on the ticket, the printed timetable posted in the offices of the company, showing that the limited mail did not stop at Bucyrus, and the residence of Wentz in the neighborhood of Bucyrus for several years. But *337it is perfectly well settled that these facts do not prove any special agreement. *Railroad Co.*v. *Campbell,*36 Ohio St. 647. Indeed, there is no evidence that the attention of Wentz was ever directed to the words on the ticket or the time-table, or that he ever saw such table.

Conceding, however, the claim of the company that when Wentz purchased the ticket at Bucyrus, he assented to the conditions appearing thereon, the question remains whether, even then, his right of action is defeated, the jury having found, as already stated, that he did not know, when he presented the ticket, that the limited mail did not stop at Bucyrus. The place at which he was ejected was not at a station, nor at any habitation, but in or near woodland, and the time was one o’clock at night. The sole ground of ejection was that he would not consent to be carried twenty-eight miles beyond the station named on his ticket. Even laying out of view the statute, it would be difficult to maintain the proposition that such ejection was justifiable. Thompson’s Car. of Pas. 340.

But Hie right to recover may be placed on broader ground. The stipulation on the ticket was, as Ave have seen, that the holder would not use it on trains which did not regularly stop at Bucyrus. In the absence of statutory provision to the contrary, a railroad company may adopt a regulation that a certain train or trains of passenger cars running regularly on its road, shall not stop at designated stations or places, and one traveling as a passenger on such road is bound to inquire whether the train upon which he takes passage stops at the station or place to which he is going. *Pittsburgh, &c. R. Co.*v. *Nuzum,*50 Ind. 141; *Ohio, &c. R. Co.*v. *Applewhite,*52 Ind. 540 ; *Ohio, &c. R. Co.*v. *Swarthout,*67 Ind. 567 ; *Chicago, &c. R. Co.*v. *Randolph,*53 Ind. 510. And, in the absence of such ^statutory provision, where the conductor of a road which has made such regulation, finds, after the train has started, a passenger who holds a ticket for a station at which that train does not stop, and the passenger is mrwilling to ride to a station at which such train does stop, he may, in a proper manner, be removed from such train. Thompson’s Car. of Pas. 375. But *338tlie power of a railroad company *to*adopt ox- enforce such regulation is subject to legislative contx-ol. *Com.*v. *Eastern R. Co.,*103 Mass. 254; *Shields*v. *The State,*26 Ohio St. 86; *s. c.,*95 U. S. 319; *State*v. *New Haven, &c. Co.,*43 Conn. 351; *New Haven, &c. Co.*v. *State,*44 Conn. 376; Pierce on Rail, (ed. of 1881) 460; Const. Art. 13, § 2.

The act of 1867, set fox-th in the statement of this case, is such legislative control. While it is clear that this action was not prosecuted under that section, it is equally clear that the alleged contract, whereby Wentz purchased a ticket from Bucyrus to Crestline and return, must be construed with reference to such section. *Lindemann*v. *Ingham,*36 Ohio St. 1, 10. This is an action for the alleged wx-ong done to Wentz, and it is not material whether it should be regarded as in tort •or on contract, for in either case the question is whether he had a right to x-etain his seat on production of his ticket. Sometimes it is difficult to determine whether a matter is so far illegal that it cannot be the subject of an agx-eement. But in this case the provision is express, that *all*passenger trains shall stop on arrival at a municipal corporation having a population of three thousand; this is a • statxxtory regulation for the benefit of the public; and, moreovei-, a penalty is provided for a failure to comply with the requirement. An agreement— assuming that one was made—x-ecognizing the validity of a l-egulation to disregard such statutory provision, is, according to the authorities, clearly illegal. *Spurgeon*v. *McElwain,*6 Ohio, 442; *State*v. *Findley,*10 Ohio, 51; *Bloom*v. *Richards,*2 Ohio St. 287; *Huber*v. *Ger. Con.,*16 Ohio St. 371; *Delaware Co.*v. Andrews, 18 Ohio St. 49; *Hooker*v. *De Palos,*28 Ohio St. 251; Leake on Con. 723.

The pux-ehase of the ticket, authorizing Wentz to ti-avel on passenger trains of the company from Bucyrus to Crestline and return, was manifestly lawful, and that purchase was fully executed when Wentz paid the money and received the ticket as ids voucher .that such fare was paid. It is tx-ue that the ticket contained a stipulation that the purchaser thereof “ agrees to use it only on such trains as regularly stop at both stations named,” that .is, Bucyrus and Crestline. But as the law re*339quired all *passenger*trains to stop at Bucyrus, and as the train upon which he was riding was a passenger train, he might well and properly assume that the law would be obeyed. Moreover, such limitation on the use of the ticket, being in violation of the statute, should be disregarded, while the payment of fare for a passage from Bucyrus to Crestline and return should be held to create an obligation on the part of the company to perform such service for Wentz on *any*passenger train of the company. This is in accordance with *Pigot's*ease, 11 Coke, 27 b, in which it was resolved, “ that if some of the covenants of an indenture, or of the conditions indorsed upon a bond, are against law, and some good and lawful, that in this case, the covenants or conditions which are against law are void *ab*initio, and the others stand good.” This principle has been reasserted in many cases. The whole subject is ably considered in Wald’s Pollock on Con. ch. VI.

If there was any error in the rulings in the court of common pleas, it was not to the prejudice of the plaintiff in error. In any view that can be taken of the case, the judgment below is

right. *Judgment affirmed.*