New York & New England Railroad v. Feely , 163 Mass. 205 ( 1895 )

Barker, J.

The defendant’s exception to the admission in evidence of the schedule of trains issued on May 7, 1893, and in force when the defendant took the ride for which the plaintiff asks pay, must be overruled. It was not merely a declaration, but an act designating the train which the defendant took as a train which did not stop regularly at Walpole; and so an act designating that train as one on which the defendant did not have the right to go, under the contract set out upon his season ticket.

Nor can the defendant invoke the doctrine that a passenger who by mistake takes a wrong train is not obliged to pay for his ride to the first station at which he has the opportunity to alight. He boarded the train intending to ride upon it as a passenger for pay to the station at which he left the train; and his mistake in supposing that a coupon from his season ticket would be received in compensation did not render him less liable to pay for the service to which he intended to subject the plaintiff, and which it performed as lie had expected. Having intended to ride upon that train from Boston to Walpole, he became a passenger upon the footing that he was to make compensation for the service rendered, and the question is whether the tender of the coupon was a proper offer of compensation. If upon two previous occasions, as the defendant’s evidence tended to prove, and the plaintiff’s evidence tended to disprove, the conductor had accepted coupons from his season ticket for passages upon this train from Boston to Walpole, the acceptance of the coupons did not show a waiver of the contract that the ticket should not be good for passage upon that train, but merely a waiver of the plaintiff’s right to collect cash fares for those two rides. When he took the train on this occasion, all his conversation with the gateman consisted in his own question, “ Walpole ? ” and the gateman’s answer, “ Yes.” He said nothing to the gateman about his intention to use his season ticket in payment of his fare to Walpole, and all that the answer could justify him in believing was that a passenger could use the train for a passage to Walpole. He was not told on this occasion that his ticket was good, and if he had been so told by a gateman upon a former occasion, it was competent for the trial court to find that the statement was a waiver of the condition of the ticket for that passage only. The ruling that the gateman or the brakeman could not waive any of the printed conditions of the ticket was one which we cannot say is shown by the exceptions to have been erroneous, and the third ruling requested was allowed by the court except that in connection with it the ruling just mentioned was made.

These considerations show that the rulings of law requested and refused were properly refused, because not well founded in law upon the facts as established in the view of the trial court. Exceptions overruled.