St. Louis, Iron Mountain & Southern Railway Co. v. Brown , 93 Ark. 35 ( 1909 )

Hart, J.,

(after stating the facts.) We do not think the plaintiff is entitled to recover in this case. One of the conditions of the .ticket was that it could not be used for passage between points in the State of Arkansas after the maximum rate of three cents per mile was charged. The change was made pursuant to the terms of an order of injunction issued by the United States Circuit Court, and a three cent rate for intrastate travel was put into effect on the 18th day of October, 1908; and plaintiff knew of this fact before he boarded the defendant’s train for passage on the day he was ejected. The terms of the contract were set forth in the mileage book, and were binding. Plaintiff took the train, well knowing that, by the express terms of his contract, he was liable to expulsion. He should not have taken passage knowing that his mileage book was not good for intrastate travel, and, having done so, should not have been permitted to recover.

Plaintiff relies upon the cases of Hot Springs Railroad Company v. Deloney, 65 Ark. 177 and St. Louis, Iron Mountain & Southern Railway Company v. Baty, 88 Ark. 282. The difference between these cases and the case at bar is that in the former the tickets were apparently good on their face, and the passengers had no notice of their defects, which was the result of the negligence of the ticket agent, while in the case under consideration the ticket or mileage book was not good for passage between points in this State, and plaintiff had knowledge of that fact when he entered the train from which he was expelled, and his expulsion was not accomplished by any physical force, and was unattended by any circumstances of insult. For illustrations of the rule that the knowledge of the passenger in such, cases precludes a recovery for damages for expulsion from the train, we cite the-following cases: Gulf, C. & S. F. Ry. Co. v. Copeland, 42 S. W. (Tex. Civ. App.) 239; Texas & Pac. Ry. Co. v. Wynn, 97 S. W. (Tex.) 506; Gulf, C. & S. F. Ry. Co. v. Daniels, 29 S. W. (Tex. Civ. App.) 426; Pittsburgh, C. C. & St. L. Ry. Co. v. Daniels, 90 Ill. App. 154; Western Maryland Railroad v. Stocksdale, 83 Md. 245; Russell v. Missouri, K. & T. Ry. Co., 12 Tex. Civ. App. 627.

‘It follows therefore that the court erred in not instructing the jury to find for the defendant as requested by it.