Avey v. A. T. & S. F. Railroad , 11 Kan. 448 ( 1873 )

The opinion of the court was delivered by

Brewer, J.:

Plaintiff brought his action in the district court to recover damages on account of having been unjustly expelled from the railroad train of defendant. A demurrer to his petition was sustained, and the question presented for our consideration is this ruling on the demurrer.' The petition alleges in substance that plaintiff went to the station to purchase a ticket; that the agent had no tickets; that the price of a ticket was seventy cents; that he entered the train, and, when called upon by the conductor, tendered him seventy cents, which was refused, and one dollar and five cents demanded ; and upon his failure to pay this he was compelled by the conductor to leave the train. Upon these facts was the demurrer properly sustained? We think not. The learned counsel for defendant in error has discussed at great length in his brief the right of a railroad company to make a distinction between train-fare and ticket-fare; to charge more for passage when paid on the train than when paid at a station. This is no new question in railroad law, and has been before the courts of several states for consideration and decision. (See the cases cited in the briefs of counsel.) But we think this question not fairly in this case as it now stands before us. There is no intimation in the petition that any such distinction had been attempted by the company. The allegation is, that the price of a ticket was seventy cents, and that the conductor for the purpose of robbing and oppressing plaintiff demanded one dollar and five cents. The plain inference from this is, that the only rate of passage fixed by the company was seventy cents, and that the conductor availing himself of the position in which the defendant had placed him was attempting to plunder plaintiff of fifty per cent, extra. The plaintiff tendering the regular fare was entitled to ride, and can recover damages for expulsion. We cannot assume that the company had established a different rate of passage when paid on the train, and that the conductor removed plaintiff for not complying with that rule, any more than we can assume that plaintiff was behaving indecently and violently and was removed for that cause. If such facts exist they must be set up by answer. The judgment of the district court is reversed.

All the Justices concurring.