#### Baltimore & Ohio R. R. Co. *v.*Bambrey.

In an action of trespass on the case against a railroad company, it appeared that the plaintiff purchased a round trip ticket, which was collected by the conductor of the out-going train, and a conductor’s trip check was given by mistake in return. On the return trip, the conductor’s check was rejected by the conductor of the return train, and the plaintiff was required to leave the train before reaching her destination, and walked the remaining distance, about eight miles. The declaration alleged an unlawful ejection of a passenger. Held, that the defendant company was liable in damages.

On the question of proximate cause, there was no error to refuse to charge as follows : “Under the evidence, the injury to plaintiff consisted in depriving the passenger of the return ticket and thereupon the right of action accrued, and the matters happening subsequently thereto complained of are but the results, proximate or remote, of the said wrong, and cannot in themselves constitute or be charged as a separate and distinct cause of action, and, under the pleadings, there can be no recovery.”

■ The measure of damages, in such case, is such sum as shall compensate the plaintiff for all injury directly or naturally following from the act of the defendant in ejecting the plaintiff from its'train, including bodily and mental pain and suffering, and any physical disability or sickness which may be the direct result of defendant’s act, and is not limited to compensation for the trouble and inconvenience caused by the delay and the additional expense to complete the journey.

Oct. 25, 1888.

Error, No. 123, Oct. T. 1888, to C. P. No. 1, Allegheny Co., to review a judgment on a verdict for plaintiff in an action on the case, by Minnie Bambrey against the Baltimore & Ohio Railroad Co., at March Term, 1886, No. 660.

The declaration alleged that *“*whereas, before and at the time of the committing of the grievances, the said defendant company did maintain, manage, operate and control a certain line of railway between Everson to Ohio Pyle Falls and other points, viz.: in the county aforesaid.; that heretofore, viz.: on the first day of January, 1886, the plaintiff was a passenger on the train and cars of said defendant company, on a certain journey between the points named, *110having purchased a ticket and taken passage thereon for certain hire and reward on that behalf paid to said defendant, the said ticket being one entitling the said plaintiff to a trip from the said point Everson to the said point Ohio Pyle Falls, and to a return trip from said Ohio Pyle Falls to-said point Everson, on the line of the said defendant company’s railway, as aforesaid; and the fare so as aforesaid paid being the full round trip fare between the points named; that thereupon it became and was the duty of the said defendant to safely carry and transport the said plaintiff on her said journey to Ohio Pyle Falls and return to Everson. Yet the said defendant, disregarding its said duty and the contract for transportation so as aforesaid made, did wilfully and with force and violence eject said plaintiff from the car wherein she was, as aforesaid, a passenger, before the completion of her said journey, to wit: at Connellsville, a point between the said points above named. Wherefore by reason of said unlawful and violent ejection from the said train whereon plaintiff was as aforesaid lawfully a passenger, she was greatly injured, bruised and broken, her clothes torn and ruined, and was compelled to proceed on foot to her said home at Everson aforesaid, to her great distress and alarm; in consequence whereof plaintiff was rendered sick and ill and suffered great pain and anguish, and was otherwise disabled, and so continued for a long time, viz.: thence hitherto; and other injuries then and there suffered and sustained, to the damage of said plaintiff of ten thousand dollars, and therefore she brings this suit.” The pleas are not given.

At the trial, before Collier, J., it appeared that the plaintiff, on Jan. 1, 1886, purchased an excursion ticket of defendant’s agent, from Everson to Ohio Pyle Falls and return. The conductor of the train going to Ohio Pyle Falls, took up her ticket, not noticing that it was a return ticket, and gave her an ordinary conductor’s hat check. When the plaintiff left the train at Ohio Pyle Falls she still retained the conductor’s check. In the afternoon, she took a train to return to Everson. When called upon for her ticket, she produced the hat check. The conductor refused to take the check, and took from her twenty-five cents, all the money that she had with her, and carried her to Connellsville, where she was compelled to leave the train, and walk the remaining distance, eight miles. The plaintiff testified that she walked home on the railroad track; that she fell several feet through a tressle and hurt herself, and was ill for ten days afterwards.

The court, after stating the facts, charged as follows :

“ These facts being undisputed, you necessarily must find some verdict for the plaintiff, because, where a railroad company issues a proper ticket, and the agent of the company puts or compels the person to get off, there is necessarily some damage, there must be recovery of some amount, and the only question in this case is what the plaintiff is entitled to recover. Where a ticket is paid for and an improper ticket issued, there is some difference in the manner of *111proceeding in the suit, but [in this case, under the pleadings and evidence, we instruct you that the plaintiff is entitled to recover something, and the question is, how much ?] [7]

“ It must be admitted that the taking up of the ticket by Mr. Smutz was an honest mistake, a mistake arising owing to it being a holiday, and consequently a larger number of people than usual in the cars, a mistake that an honest man and a faithful officer might make. That, of course, does not relieve the company, nor would it relieve Mr. Smutz, if the suit were against him, from paying such damages as the plaintiff actually sustained, or that necessarily grew out of the mistake, but it does relieve the company from paying any punitive damages, any fancy damages. It is simply a question of compensation. The plaintiff is entitled to recover compensation for any annoyance done her, to recover the extra amount she had to pay as fare, and for the annoyance to her, inconvenience and anything growing out of the occurrence, any shock to herself — pain or mental suffering — reasonably for that.

“ The plaintiff having undertaken to walk home on the railroad track, any injury she received from that source cannot be allowed for, for the simple reason that the law of this state is, that every person who goes upon a railroad track does it at his own peril. Any hurt or injury she received, in any way, while on the track, must be excluded, and any allowance of damages for that would necessarily result in another trial. You must exclude that, and I direct the reporter to strike out all the evidence relating to any injury that she received-by reason of walking on the track, or to any suffering therefrom, and direct you, gentlemen, to disregard that evidence.

“ The plaintiff got off at Connellsville. If this mistake had not'been made, she would have been carried home. The mistake was made, she did get off there. She had to get off there. It is said that she had friends at Connellsville. She knew the town she lived in was along the line, she undertook to walk there, and she necessarily suffered from the annoyance of being put off and having to walk home, necessarily was fatigued by the walk, and if she received any injury directly from doing that — if she was justified under the circumstances in walking instead of undertaking, without money, to stop in a strange town, a young girl in the evening — she would be entitled to recover for that. It is a question of compensation, what she ought to have under the circumstances to compensate her, laying out of view any injury she received by reason of having walked upon the railroad track. What the amount should be is a matter resting in the sound discretion of the jury. She had to pay more fare; she was put off; she suffered annoyance; she walked this distance to her home; she was necessarily fatigued, and, if you think it was reasonable for her to walk, you will compensate her for the suffering, pain, annoyance, and no more.

“You take the case with these instructions, and find such verdict *112for the plaintiff as may seem right to you under the evidence and the law, and I must beg you, gentleme.n, to please confine yourselves to the law of the case and the evidence, because if you go outside of it you put the court and counsel to the extra labor, and the county to the expense, of another trial. It is not a case for punitive damages in any of its phases.”

The defendant presented the following points:

“ 1. The rule or regulation of defendant company, shown in the testimony, that no person shall be allowed to ride as a passenger without producing to the conductor of the train upon which he desires passage thereon specified, or paying fare to such conductor for the passage desired, is a reasonable and proper rule, and one which the defendant’s conductors may lawfully enforce; and if the plaintiff entered the defendant’s train at Ohio Pyle, upon the return trip, without a ticket entitling her to ride upon the said train, and, upon request of the conductor of said train, failed to produce a ticket evidencing her right to ride, and failed to pay fare beyond, or farther than Indian Creek or Connellsville, then the conductor of said train, in pursuance of the aforesaid regulation of the defendant, had the right to put her off said train at Connellsville, and for this act of ejecting her, in accordance with the aforesaid regulation, no right of action accrued to the plaintiff, either against such conductor or his principal, the defendant company, and, under the pleadings and evidence, the verdict should be for the defendant. *Ans.*Refused.” [1]

“ 2. Under the evidence in the cause, the injury to plaintiff consisted in depriving her of her return ticket on her way to Ohio Pyle, and thereupon her right of action accrued, and the matters happening subsequently thereto complained of, are but the results, proximate or remote, of the said wrong, and cannot in themselves constitute or be charged as a separate and distinct cause of action, and, under the pleadings, as they now appear, there can be no recovery. *Ans.*Refused. There can be a recovery in this case, if the jury believe the evidence.” [2]

“5. Having been deprived of her return ticket, upon her journey to Ohio Pyle, and not being supplied with any ticket purporting to entitle her to ride from Ohio Pyle to Everson, she was in duty bound by the regulations of the defendant company to provide herself with a ticket at Ohio Pyle to return to Everson before entering the train for such passage, or to pay fare to the conductor upon the train; and the company defendant cannot be charged in this action with the results of her undertaking to ride back to Everson not supplied with ticket, or with money to pay fare; and, upon the issue joined under the pleadings, the verdict should be for defendant. *Ans.*Refused.” [3]

“ 6. If plaintiff is entitled to recover at all in this action, she is only entitled to recover damages for the trouble and inconvenience caused to her by the delay in being left at Connellsville, and the additional expenses necessary to complete her journey to Everson. *Ans.*The measure of damages is such sum as shall, in the jury’s *113sound discretion, compensate plaintiff for all injury directly or naturally following from the act of the defendant in ejecting the plaintiff from its train, including bodily and mental pain and suffering, and any physical disability or sickness which may be the direct result of defendant’s act.” [4]

“ 7. The alleged sickness or loss of health of plaintiff caused by walking from Connellsville to Everson cannot, under the evidence, be legally charged to the wrong of defendant, as its proximate cause, and the plaintiff is not entitled to recover damages therefor in this action. *Ans.*Refused.” [5]

The plaintiff presented this point:

“ 1. Under all the evidence, the verdict should be for the plaintiff. *Ans.*Affirmed, if you believe the evidence.” [6]

Judgment and verdict for plaintiff for $1500.

*The assignments of error*specified, 1-5, the answers to defendant’s points, quoting the points and answers; 6, the answer to plaintiff’s point, quoting the point and answer; and, 7, the portion of the charge embraced in brackets, quoting it.

*Johns Me Cleave,*for plaintiff in error.

The record shows a judgment for ejecting plaintiff from the train, but the court really allowed recovery for wrongfully taking up her ticket. Suppose she should now sue us for wrongfully depriving her of her ticket, we could not plead this record in bar, and she might recover a second judgment for the same thing.

The rule of the defendant company requiring passengers to exhibit a ticket, or pass, or pay fare to the conductor, is a reasonable one. The rule enters into and forms an essential part, of the contract of carriage, and subject to it every ticket is purchased. Dietrich *v.*Pa. R. R., 71 Pa. 435 ; L. S. & M. S. Ry. *v.*Rosenzweig, 113 Pa. 536.

The decisions universally hold that the passenger must comply with all reasonable rules and regulations, and, if he does not, forfeits his rights to carriage; that the rule that the passenger must exhibit a ticket entitling him to the ride desired, or pay fare, is a reasonable rule, and if not complied with, the passenger must be ejected. Some of the cases in their facts are very like the present. Yorton *v.*Milwaukee, L. S. & West. Ry., 54 Wis. 234, where hatcheck was given instead of stop-over ticket; Hufford *v.*Grand Rapids & C. R. R. Co., 53 Mich. 118, where cancelled ticket was sold by agent; Fredrick *v.*Marquett, &c., R. R., 37 Mich. 342; Hall *v.*Memphis & Charleston R. R., 15 Fed. R. 57, where limited ticket was sold for unlimited; Pullman Palace Car Co. *v.*Reed, 75 111. 125, a case of lost ticket; Bradshaw *v.*S. Boston R. R., 135 Mass. 407, where wrong transfer check was given to passenger; Townsend *v.*N. Y. Cent., 56 N. Y. 295, where ticket was taken from passenger; Shelton *v.*L. S. & M. S. Ry., 29 Ohio, 214, where commutation ticket was taken away from passenger because not signed; C., B. *114& Q. R. R. *v.*Griffin, 68 111. 499, where ticket was improperly-issued; McClure *v.*P., W. & B. R. R., 34 Md. 532, where conductor gave limited check; Fredrick *v.*Marquette, &c., R. R., 37 Mich. 342, a similar case; Petrie *v.*Penn. R. R., 42 N. J. L. 449, where conductor marked ticket stop-over.

The pleadings cannot be corrected by the court, for the measure of damages would be what sum of money it would require to place the plaintiff in as good condition financially as she was before— the value of the property taken. The only natural and probable consequence 'of the wrongful act would be that plaintiff would be compelled to buy another ticket. Except by her own fault, what else could result?

The rule of damages laid down by the court was erroneous. No recovery could be had for damages sustained by the walk. Hobbs *•v.*London & South Western Ry., 10 L. R., Q. B. 111; Louisville & Nashville R. R. *v.*Fleming, 14 Lea (Tenn.), 128; Francis *v.*St. Louis Transfer Co., 5 Mo. Ap. 7; Henry *v.*St. Louis & K. C. R. R., 76 Mo. 288.; Lewis *v.*Flint & Pere Marquette R. R., 54 Mich. 55 ; I., B. & W. R. R. *v.*Birney, 71 111. 391 ; Pullman Palace Car Co. *v.*Barker, 4 Col. 344.

*Thos. Patterson-,*with him *Echvard Campbell,*for defendant in error.

A passenger receiving a check or a slip with some unmeaning marks and signs upon it, has a right to suppose and act upon the theory that that is a good voucher for the trip for which he has paid money; on the other hand, if there is upon the check something which limits his, rights, e. g. “ good for this day and train only,” he cannot ignore the printed statement, which is brought home to him in this way, of such limiting condition. P. C. & St. L. Ry. *v.*Hennigh, 39 Ind. 509, where ticket was improperly collected; Toledo & Wabash Ry. *v.*McDonough, 53 Ind. 290, where conductor’s check- was given for another train; Palmer *v.*R. R., 3 Rich. (S. C.) 588, where check was given instead of stop-over ticket; L. E., etc., Ry. *v.*Fixe, 11 Am. & Eng. Ry. Cases, 109, where wrong coupon was returned to passenger; City, etc., Ry. *v.*Brauss, 70 Ga. 369, where passenger was exchanged to another car without exchange ticket; Hamilton *v.*Third Ave. R. R., 53 N. Y. 25, a similar case ; Murdock *v.*B. & A. Ry., 137 Mass. 293, where punched ticket was sold by agent. See also, on same principle, Burnham *v.*G. T. Ry., 63 Maine, 298; Tarbell *v.*N. C. Ry., 24 Hun, 51; Pa. R. R. Co. *v.*Spicker, 105 Pa. 142.

The cases cited by the plaintiff in error are easily distinguishable from the present case. They are all cases where the passenger had notice upon the face of the ticket of its defective character, or where, without any ticket whatever, he has entered the cars of the defendant companies, and has attempted to explain the defect in his ticket by some statement or contract with some other agent of the company. In all these cases, the courts have held that the passenger *115has been guilty of negligence on his own part in attempting to use a ticket plainly void on its face, or to travel without any ticket whatever. See also Yorton *v.*Ry., reported again in 62 Wis. 367, with qualification.

Nov. 5, 1888.

The declaration follows the rule stated by Chitty — the right of plaintiff, the breach and the damage. Plaintiff’s testimony is in the line of her declaration. It is defendant’s testimony which introduces the wrongful act of the first conductor and the rightful act of the second. The declaration served to introduce plaintiff’s testimony, which was received without objection, so far as the ground of action is concerned.

If necessary, this court will allow formal amendment, the case having been tried on its merits. Wampler *v.*Shissler, 1 W. & S. 365 ; Pittsburgh, etc., Bank *v.*Hall, 107 Pa. 583; Trego *v.*Lewis, 58 Pa. 463.

The defendant company cannot excuse the act of one employee by the negligence of another.

The question of the allowance of damage for the hardships, such as missing the way, etc., incident to the walk home, does not arise on this record; there being no assignment of error to the introduction of such testimony; but it is clearly admissible under the rule laid down in R. R. *v.*Buck, 18 Am. & Eng. Ry. Cases, 234; R. R. *v.*Gilbert, 22 Am. & Eng. Ry. Cases, 405. See, also, Pa. R. R. *v.*Spicker, supra.

Per Curiam,

None of the assignments of error can be sustained. The rulings of the learned judge of the court below, and his instructions to the jury, cannot be impeached.

The judgment is' affirmed.