#### Gustave A. Weber, Respondent, *v.*Rochester, Syracuse and Eastern Railroad Company, Appellant.

Fourth Department,

May 3, 1911.

Railroad — duty of interurban railroad to accept transfer — negligence of conductor in issuing transfer — liability of railroad refusing transfer so-issued — when railroad not liable for assault by conductor.

.By virtue of sections 101 and 78 of the.Railroad Law, governing the issuance of transfers on street railroads within city limits and the issue of transfers where one company uses the rails. of another company under a contract allowing it to do so; a passenger on the line of a local company operating- wholly within a city is entitled for the payment of a> single fare to a transfer to the cars of another railroad company using *85the same tracks, but which operates between that city and. another city, to reach his destination within the city if he complies with the reasonable rules of the company in obtaining the transfer and in using it.

*It seems,*that where such passenger is entitled to a transfer but the conductor has been negligent in issuing it by failing to punch the time it was issued, the transfer being only good for fifteen minutes after leaving the first car taken, and the transfer is refused on the car of the other eoinpany because of such defect, he may recover from the latter company such damages as resulted from the negligence of the conductor and any penalty imposed by the statute.

But as railroad companies may make reasonable rules for conducting them business and incur no liability if they are enforced by their agents in a proper manner and as a rule that a transfer is not good for more than fifteen minutes after leaving the car on which it is issued is reasonable, a railroad company which has refused to accept the transfer because the time of issuance is not punched thereon cannot be held as for an assault on the holder of the transfer by its conductor who compelled him to leave the car on his refusal to pay another fare as required by the rules of the company, if in ejecting him no unnecessary force was used.

Appeal by the defendant, the Bochester, Syracuse and Eastern Eailroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of Monroe on the 23d- day of December, 1010, upon the verdict of a jury for ninety dollars, and also from an order entered on the 3d day of January, 1911, denying the defendant’s motion for a new trial made upon the minutes.

The action was commenced on the 9th day of April, 1910, to recover damages alleged to have been sustained by the plaintiff because of an assault committed upon him by a conductor of the defendant in ejecting him from one of defendant’s cars upon which he was a passenger.

*Ernest I. Edgcomb,*for the appellant.

*Henry B. Howard,*for the respondent.

McLennan, P. J.:

The facts are not in dispute. At all the times in question the defendant was a corporation engaged in operating a trolley railroad between Syracuse and Bochester. The local street railway system in Bochester was owned, controlled and operated by the New York State Bailways. By contract between such corporations the defendant was permitted to enter the city of *86Rochester from the east, running its cars over the University avenue line to its intersection with Main street, and from there on the Main street line to the Four Corners, so calléd, or central part of the city, and the defendant’s cars in returning easterly passed over the same route to the city line.

It was stipulated upon the trial: *“First.*That on the day in question there was an agreement in force between the defendant and the New York State Railways, or its predecessors, which provided, among other things, that passengers who paid fare on the defeildant’s cars within the city should he entitled to the transfer privileges of the city company, and that the city company’s special transfers should he honored on the cars of the defendant to the Culver Road [the east line of the city], subject, however, to the transfer regulations contained on the transfers, and to the rules of the defendant company. That there was a good consideration for such agreement.

“ *Second.*That on the day in question there was a rule of - the defendant company in force forbidding a conductor to-accept transfers unless properly punched as to line and hour.”

On the 23d day of December, 1909, between four and five o’clock in the afternoon, the plaintiff paid his fare on one of the West avenue cars of the local company and asked for and received from the conductor a transfer to the University avenue line and at the proper point he alighted and immediately hoarded one of the defendant’s cars going out University avenue. The conductor on that car refused to accept the plaintiff’s transfer on the ground that no hour had been punched thereon by the conductor of the local company who delivered the transfer to him, and the conductor on defendant’s car demanded payment of • a cash fare, which the plaintiff refused to pay, whereupon the conductor, using no more force than was necessary, compelled plaintiff to alight and leave the car.

The transfer delivered to the plaintiff was of the regular kind issued upon the West avenue line of the local company and had printed on it the date, “Dec. 23,” and bore the. conductor’s punch mark designating the University avenue line as the one to be taken. In conspicuous type there was printed on the transfer, “This transfer void 15 minutes after the *87hour punched.” On the margin were two columns of figures running from 1 to 12, one colmnn marked “A. M.” and the other “P. M.;” hut no hour was punched, and, as appears by the stipulation in question, on the day in question there was a rule of the defendant company in force forbidding a conductor to accept transfers unless properly punched as' to line and hour. On the ,back of such transfer there was printed in plain type the following: “ Transfer Regulations. This transfer is issued subject to the rules of the Company and must be obtained from conductor, when fare is paid and passenger accepting same should see that line and time are correctly punched. A transfer showing more than two punch marks is void. If conductor refuses to accept transfer, fare should be paid and the circumstances promptly reported to the General Offices of the Company. This is not a stop-over check, is not transferable, and is good only .for person to whom it was issued, taking car at junction point indicated within time limited. Attention is called to the Penal Code, makingdt_a punishable offense to give away or otherwise misuse a transfer.” This was signed “New York State Railways, Rochester City Lines, E. J. Cook, Vice-President.”

It is practically conceded by the appellant that its obligation with reference to local passengers riding upon its cars within the city limits is the same as that imposed upon the local company and that no traffic agreement between the two companies .and no rule of either company could be effective to relieve either of them from any obligation imposed by law for the benefit of the traveling public.

Section 101 of the Railroad Law (Gen. Laws, chap. 89 [Laws of 1890, chap. 565], as amd. by Laws of 1897, chap. 68§), in force in December, 1909, required the local company to furnish a passenger a continuous ride for one fare from any point on its system to any other point thereon within the city limits, and section 78 of the Railroad Law (as amd. by Laws of 1905, chap. 695) then provided that if the tracks of one company are used by another company for its cars under a contract, the latter company cannot use the tracks '£ in a manner inconsistent with the provisions of law applicable to its use by the .corporation owning the same.”

*88Under such provisión of the statute there can be no doubt but that the plaintiff was - entitled to be carried for .a single fare over the West avenue line of the local company and to receive a transfer from the conductor on such line which would enable, him to ride to his home or destination on the University avenue line, upon any car traversing such .line, although owned and.operated by the defendant, provided, however, the passenger .complied with the reasonable'rules .of the company in obtaining such transfer and in using the same’..

Upon the uncontradicted evidence the plaintiff was entitled to receive from the conductor hi charge of the car of the local company a transfer which would entitle'him to' ride upon any car of .the defendant going east on University avenue to the-city line, provided he. boarded the defendant’s car within fifteen minutes after leaving the car of the local company; and if the ’ conductor who assumed to issue such transfer did so negligently and in such manner-that the. plaintiff, was prevented from availing himself of the privileges, to .which he was. entitled, to wit, to ride for a single fare from the point where he - entered the car of the local company- to: the east line of the city over the University line, he was entitled to recover, such damages from this ’defendant'as. resulted-to him from the' neglect or omission of the first conductor 'and any penalty imposed by statute for his benefit. But is the defendant liable for an assault committed upon the-plaintiff by its conductor because of the fact that he ejected the plaintiff from the car upon his-refusal to comply with the rules of the defendant? The answer to such question must depend upon whether such rules were reasonable and were, reasonably enforced. If such-rules were hot reasonable,, Undoubtedly the passenger would be justified in resisting to the utmost their enforcement..

Railroad companies carrying passengers have the right to make reasonable rules- and regulations for conducting their business, and they and their agents incur no liability in enforcing them in a proper manner. *(Elmore v. Sands,*54 N. Y. 512.)

In the case of *Monnier*v. *N. Y. C. & H. R. R. R. Co.*(175 N. Y. 281) the holding of the court was stated in the head note . as follows: *“A*passenger on a railroad train must subordinate' *89his conduct to all rules of the company that are reasonable and valid. It is the duty of the conductor to execute and enforce them; if there is some fact or omission behind the rules not apparent upon the face of the trahsaction, the passenger must resort to some other remedy for his grievance besides the use of force against the conductor, and if, under such circumstances, he invites a personal collision with him, he puts himself in the wrong, and cannot sue the company or the conductor for damages for assault and battery.”

In the case at bar we conceive that the only question involved is whether the rule adopted by the defendant was, under all the circumstances, reasonable, it not being claimed that such rule was enforced in an unreasonable manner. If it was reasonable and was reasonably enforced, we think, under the authoiities, an. action for assault will not lie against the defendant or its agent, notwithstanding that the plaintiff may have a right of action for damages sustained by him because of the neglect of the first conductor to issue to Turn a proper transfer, and which occasioned his ejection from defendant’s car.

As we have seen, by an agreement between defendant and the local company, the defendant was permitted to run its cars over the tracks of the local'company upon University avenue and upon Main street to the Four Corners, and to return over the same route to such city line; and the defendant, by the terms of such agreement, was required to carry any passenger desiring to go easterly over such line without any additional fare, provided such passenger presented to the conductor of defendant’s car a transfer which showed upon its face that it had been issued by the conductor of the local company’s car not more than fifteen minutes previous to the time when he' entered defendant’s car, and' the agreement, in effect, provided that unless the transfer so issued by the local company indicated the time when it was issued it must not be received in payment of the fare of a passenger upon defendant’s car.

The purpose of such rule or regulation, and of the agreement made between the two companies in that regard is apparent. Without such rule the conductor upon the local company’s car could issue any number of transfers without *90punching the time, and by such omission impose the duty upon the conductor of the defendant to receive them in payment of the fare of passengers if offered at any time within twelve hours, after their issuance.- This, as it seems to me, would impose an unreasonable burden upon the defendant, and one which, if assumed, would be in direct violation of the agreement which it had made with the local company. We, therefore, conclude that the rule and regulation which prohibited the defendant’s conductor from accepting the transfer in question which in no manner indicated when it had been issued, was reasonable, and that such rule having been enforced in a reasonable manner, the plaintiff having refused to pay a cash fare, and the conductor upon such refusal having ejected him from the car, using no more force than was necessary, no cause of action for assault was made out.

While the amount of the. verdict in this case is' not large, and from a money standpoint'it is not very important, the principle involved is. of very vital importance. May a. passenger upon a railroad train or street car who presents to the conductor a transfer, ticket or token, which as he claims entitles him to transportation, but which is not issued in accordance with the reasonable rules of such company, no matter through whose fault, insist that such transfer, ticket or token shall be received in payment of his fare and seek to enforce his alleged rights by resistance to the conductor which involves the use of force and a fight between the conductor' and the passenger to the annoyance of all the other travelers in such car?

I am unable to distinguish upon principle the-case at bar from the *Monnier Case (supra).*In that case the rule of the company, which was held to be reasonable, required that a passenger upon defendant’s train should present a ticket, or, in case he did not, to pay five / cents additional. Another rule of the company required that the ticket office at the station should.be kept open for one. hour before the departure of a train to enable persons intending to board such tram to purchase tickets for their journey. The plaintiff in that case insisted that the ticket office at Oriskany was not open within that time previous to the departure of the train, and that, therefore, it wasv practically impossible for him to obtain such *91ticket, and upon that ground, which he asserted to he a fact to the conductor, he refused to pay the additional fare and he was forcibly ejected from.the car. The court said: *“*But the conductor could not know what the fact w,as in that respect and was not bound to take the passenger’s word for it, nor could he try and decide the. question upon the word of the other passengers who procured tickets at the same station. The simple duty of the conductor is to execute and enforce all reasonable rules and that of the passenger is to obey them. If there is some fact or omission behind the rules not apparent upon the face of the transaction the passenger must resort to some other remedy for his grievance besides the use of force against the conductor.”

In the case at bar plaintiff asserted that he had. procured the transfer which he offered to the conductor within fifteen minutes of the time when he entered defendant’s car. The conductor insisted that he could not accept the passenger’s word in that regard, but that the rule was imperative that unless he produced a transfer which indicated that fact upon its face it became his duty to collect a cash fare or to compel him, the passenger, to leave the car.

A large number of cases are cited by appellant’s counsel which, as it seems to us, are authority for the proposition that the rule of the defendant company which in effect prohibited its conductor from accepting a transfer issued by the local company which was not punched as to the hour when issued was reasonable and, therefore, that the passenger was bound to comply therewith and that if he failed to do so and as a result was ejected from the car he cannot maintain an action for assault and battery,

Tn *Elder*v. *International R. Co.*(68 Misc. Rep. 22; affd., 143 App. Div. 960) the plaintiff boarded a “ Pay-as-you-enter ” car, presented *&*transfer which he supposed was valid and took his seat. The conductor discovered that the transfer did not conform to the regulations of the company and refused to accept it; he entered the car and demanded that the plaintiff deposit his fare in the box. This plaintiff refused to do but tendered the required five cents. Plaintiff’s ejection followed. In an action for assault it was held that the company was protected *92by its rule requiring passengers to personally deposit their fares and that such rule was. reasonable. .

In *Barker*v. *Central Park, etc., R. R. Co.*(151 N. Y. 237) it was held that «a rule of a street car company requiring its conductors to furnish’ change to passengers, to the amount of two dollars only was reasonable and that a tender by a passenger of a five-dollar bill in payment of his fare was properly refused by the conductor and that he was justified in putting the passenger off the car.

In *Taylor*v. *Nassau Electric R. R. Co.*(32 App. Div. 486) it was held- that a passenger upon a car unreasonably delayed had no right to insist upon boarding another car and riding without payment of another fare in violation of the rules and regulations of the company.

In *Mullin*v. *Long Island R. R. Co.*(136 App. Div. 733) plaintiff purchased an excursion- round-trip ticket. The outgoing conductor punched by mistake the return .ticket and' thereby apparently canceled it. Plaintiff tendered such can-, celed ticket for her return trip but the conductor refused to accept it and ejected the plaintiff. Held, that the rule requiring an uncanceled ticket as evidence of the right for transportation was reasonable and that it was the duty of the conductor to enforce such rule.

In *Bradshaw*v. *South Boston R. R. Co.*(135 Mass. 407) the defendant made a. practice of'giving transfers to its various-linés. Plaintiff received by mistake of the conductor, a wrong transfer and a different one from which he had asked for.' On presentation to the conductor of the. car on the second line such transfer was refused. Plaintiff refusing to pay his fare was ejected and a tort action to recover damages for being thus expelled followed. It was held that he could not recover.

Prom an examination of the authorities above referred to and of the many other cases of like import, to which attention might be called, we conclude that the rule of the defendant which prohibited its conductor from accepting a transfer issued by the conductor, of .the local company which was not punched as to time and did not upon its face indicate when it was so issued, was reasonable; that the defendant’s conductor waá, therefore, justified in. refusing to accept the same and-in demancV *93ing a cash fare from the plaintiff; that upon plaintiff’s refusal to pay such cash fare such conductor was justified in ejecting the plaintiff, and for so doing no action for assault will lie against the defendant.

It follows that the judgment and order appealed from should be reversed and a new trial granted, with costs to appellant to abide event. '

All concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event.