Thorp v. Concord Railroad , 61 Vt. 378 ( 1889 )

The opinion of the court was delivered by

Royce, Ch. J.

This is an action of trespass, brought to .recover for the damage sustained by the plaintiff in being ejected from a passenger car upon which he was then riding, and was heard on a demurrer to the plaintiff’s replication.

The replication attempted to justify the plaintiff’s right to ■ride in the car from which he was ejected under a live stock ticket which was delivered to him at St. Albans, on the 4th of May, 1885. The plaintiff on that day shipped six horses and a ■buggy, at St. Albans, to be transported over the Central Vermont and connecting roads, of which the defendant road is one, to Woonsocket, E. I., and alleges that in consideration of his -agreement to pay the charges for the transportion of such property, said live-stock ticket was issued to him. Said ticket was made good for one trip only, on a freight train,from St. Albans to Providence via Worcester and Nashua, as per conditions on back. The conditions provided that the person named in the ticket was entitled to ride upon the freight train, of which his car formed a part, for the purpose of taking care of his stock, and 'that he should go with it and assume the care of it. The plaintiff accepted the ticket upon the conditions named, and agreed to be governed by them by writing his name under the conditions printed on the back of it, and alleges that by virtue of said ticket only the Central Vermont R. R. Co. agreed to transport him between the points named in it oh a regular passenger train, and that he had, before said 4th of May, been transported on said Concord railroad, in passenger cars, by exhibiting to the conductors a ticket like the one received on the 4th of May, 1885.

Upon the facts as alleged in the replication, had the conductor the legal right to eject the plaintiff from the cars ? The only evidence that the plaintiff offered to the conductor to show his right to ride on a passenger train of .the defendant was the livestock ticket, and, as we have seen, that ticket limited his right to ride on a freight train, and upon the conditions hereinbefore named.

The right of a railroad corporation to define and limit the train upon which a passenger, using a ticket, is entitled to ride is undoubted, and the acceptance of such a ticket is only evidence of the right to use it on the train named in it. That a ■conductor has a right to demand fare of a passenger, or evidence that he has paid it, and upon his refusal to pay fare or to produce evidence that he has paid it, to eject him from the car at a proper place and in a proper manner, was settled by this court in Jerome v. Smith et al., 48 Vt. 230. It is alleged in the plear and not denied in the replication, that the conductor, before he-ejected the plaintiff, demanded his fare and he refused to pay it, and that the only evidence exhibited to the conductor showing his-right to remain in and to ride upon the car was said live-stock ticket. As we have seen that only entitled him to ride ujfon a-freight -train.

The fact alleged of his having been permitted to ride in passenger cars upon tickets like the one on which he was attempting to ride when ejected, does not change or vary the legal rights of the parties, as evidenced by the ticket accepted by the plaintiff-on the 4th of May, 1885.

The replication does not answer the plea, or allege facts which justify the claim made, and the judgment sustaining the demurrer and adjudging the replication insufficient, is-affirmed and judgment rendered for the defendant.