Marshall v. Boston & Albany Railroad , 145 Mass. 164 ( 1887 )

Holmes, J.

1. The ruling requested by the plaintiff was, that “ the evasion or attempt to evade' the payment of fare, for which a passenger may be lawfully ejected or removed from a railroad car, must be a fraudulent evasion, with an intent to defraud the railroad company.” There is no question, and the plaintiff does not dispute, that this request for a ruling, if taken literally, was rightly refused. Beckwith v. Cheshire Railroad, 143 Mass. 68. We are asked to construe the words “ ejected or removed,” in connection with the facts and with instructions given, and not excepted to, as meaning “removed by arrest,” or, in other words, “arrested.” We think, however, that the suggestion does too great violence to the language used, and that we should not be warranted in assuming that the judge to whom the request was addressed understood it as the plaintiff would have us understand it.

2. “ The plaintiff, for the purpose of showing his intent and belief that the said coupons were a proper tender of his fare, offered to prove that he had frequently seen the conductors on the defendant railroad accept, without objection, in payment of fare, similar coupons, which had been detached from similar mileage hooks by passengers or others than such conductors; but the judge excluded the evidence in this form, and for the specific purpose for which it was offered, but stated, if the plaintiff proposed to prove a custom of the defendant to accept coupons so tendered, that the .evidence would be admissible.”

It would seem that the plaintiff could not have been injured by the exclusion of the evidence as stated. For, upon the rulings of the court under which this case was tried without objection by the plaintiff, his belief or intent was only material to the count for malicious prosecution, and the verdict for the defendant on that count was based on the finding that it acted under the advice of counsel. But the evidence was properly excluded. If the plaintiff’s actual belief was material, and was really controverted, he could not, as of right, strengthen his direct testimony as to what his belief was by testifying to other facts which would make it likely that he believed as he said. Delano v. Smith Charities, 138 Mass. 63. This seems to have been the purpose for which the evidence was offered. If it had been offered to show that the defendant company had justified the plaintiff’s conduct by its own, the court was ready to admit it, subject to proper limitations.

Exceptions overruled.