ticket.

train was from 25 to 35 minutes late. He sprang into an omnibus, hurried to the station; arriving there, Same-Reasonran to the ticket office, called for a ticket; the agent able opportu not being in, came out, found the train started, and nity to procure got on the train when it was moving; doing all this as hurriedly as he could. From the evidence no one could say that, after his arrival in the omnibus, he had a reasonable time in which to go to the ticket office, procure a ticket, and reach the train in time to get on before it began to move. The requirement of a reasonable opportunity to purchase tickets does not make it the company's duty to keep the ticket office open within such time, before the departure of a train, that persons purchasing tickets cannot get on the train before it begins to move. Railroad companies ought not to sell tickets within that time. As a matter of public policy, no one except those operating it ought to be permitted to get upon a railroad train when it is in motion. Order reversed.

Tickets for Passenger Trains-Regulations.-A regulation that passengers who fail to procure tickets before entering the train, must pay a higher fare, is reasonable and will be enforced; Črocker v. New London, W. & P. R. Co., 24 Conn. 249; St. Louis, A. etc., R. Co. v. South, 43 Ill. 176; Indianapolis & St. L. R. Co. v. Kennedy, 77 Ind. 507; s. c., 3 Am. & Eng. R. R. Cas. 467; Jeffersonville R. Co. v. Rogers, 38 Ind. 116; s. c., 28 Ind. 1; State v. Chovin, 7 Iowa, 204; Wilsey v. Louisville & N. R. Co., 83 Ky. 511; s. c., 26 Am. & Eng. R. R. Cas. 258; State v. Goold, 53 Md. 279; Du Laurans v. St. Paul & P. R. Co., 15 Minn. 49; Hilliard v. Goold, 34 N. H. 230; Bordeaux v. Erie R. Co., 8 Hun (N. Y.), 579; Cincinnati, L.. & C. R. Co. v. Skillman, 39 Ohio St. 444; s. c., 13 Am. & Eng. R. R. Cas. 31; Poole v. Northern Pac. R. Co., (Oreg.), 18 Pac. Rep. 107; Lane v. East Tennessee, V. & G. R. Co., 13 Lea (Tenn.), 547; s. c., 2 Am. & Eng. R. R. Cas. 278; Stephen v. Smith, 29 Vt. 160; People v. Jillson, 3 Park Cr. Cas. 234. But a reasonable opportunity to procure tickets must be given, otherwise passengers have a right to be carried on payment or tender on the cars, of the ticket rate. St. Louis, A. & C. R. Co. v. Dalby, 19. Ill. 353; Chicago, B. & G. R. Co. v. Parks, 18 Ill. 460; Indianapolis R. Co. v. Rinard, 46 Ind. 293; Jeffersonville R. Co. v. Rogers, 38 Înd. 116; s. c.,28 Ind. 1; Wilsey v. Louisville & N. R. Co., 83 Ky. 511; s. c., 26 Am. & Eng. R. R. Cas. 258; Du Laurans v. St. Paul & P. R. Co., 15 Minn. 49; Nellis v. New York Cent. R. Co., 30 N. Y. 505; Chase v. New York Cent. R. Co., 26 N. Y. 523; Poole v. Northern Pac. R. Co. (Oreg.), 18 Pac. Rep. 107,

Reasonable Opportunity.-What is a reasonable time for procuring tickets before the departure of a train, depends upon the requirements and convenience of the public at each particular station. Everett v. Chicago, R. I. & P. R. Co., 69 Iowa, 15; s. c., 27 Am. & Eng. R. R. Cas. 98. It is not necessary that the ticket office should be kept open before the departure of the train until the very instant the train moves off. Everett v. Chicago, R. I. & Pac. R. Co., 69 Iowa, 15; s. c., 27 Am. & Eng. R. R. Cas. 98 note, 101; Swan v. Manchester & L. R. Co., 132 Mass. 116; s. c., 6 Am. & Eng. R. R. Cas. 327; 42 Am. Rep. 432. If a company has provided a station at which its passenger trains stop, but at which there is no ticket

office, it has not given a passenger a reasonable opportunity to obtain a ticket. Poole v. Northern Pac. R. Co. (Oreg.), 18 Pac. Rep. 107.

Ejection for Refusal to Pay Full Fare.-If, in consequence of the fractious refusal of a passenger to pay the full fare, although he had not provided himself with a ticket, the train is stopped for the sole purpose of ejecting him, he cannot insist on continuing his trip on paying his fare, and may be removed from the train. If, however, the train stops at a regular stopping place, and the passenger before being ejected offers to pay the full fare, the conductor must accept it, and the ejection of the passenger thereafter will be wrongful. O'Brien v. New York Cent. & H. R. R. Co., 30 N. Y. 236; s. c., 1 Am. & Eng. R. R. Cas. 259. When a passenger has wrongfully neglected to obtain a ticket, and on refusing to pay the increased fare is ejected at a station, he cannot at that station purchase a ticket for the rest of the journey, and resume it upon the same train. Swan v. Manchester & L. R. Co., 132 Mass. 116; s. c., 6 Am. & Eng. R. R. Cas. 327; 42 Am. Rep. 432. A conductor to whom the ticket fare has been handed by a passenger who has failed to obtain a ticket, cannot eject the passenger without returning the money received. Bland v. Southern Pac. R. Co., 55 Cal. 570; s. c., 3 Am. & Eng. R. R. Cas. 285.

HOBBS

V.

TEXAS AND PACIFIC R. Co.

(Arkansas Supreme Court. October 15, 1887.)

Passengers-Freight Trains-Rules of Company-Waiver.-The fact that a regulation of a company prohibiting the carrying of passengers upon through freight trains has been violated, and conductors of such trains have been in the habit of carrying passengers, does not deprive the company of the right to enforce the regulation whenever it deems fit, and does not give passengers any right to travel on such trains; and a person who boards a freight train which has no appearance of being held out for the accommodation of passengers, is not legally a passenger and may lawfully be ejected.

Same Ejection Statutory Provision-Freight Trains.-The Arkansas statute which requires railroad companies to expel passengers only at stations is confined to cases where passengers refuse to pay the fare, and has no application to the case of a person who is unlawfully upon a freight

train.

APPEAL from Circuit Court, Miller County.

Action to recover damages for the alleged wrongful expulsion of plaintiff from defendant's train. The plaintiff appeals from a judgment for the defendant. The opinion states the

case.

Facts.

COCKRILL, C.J.-It was a published rule of the Texas & Pacific R. Co., that passengers were forbidden to ride on through freight trains. This same rule forbade conductors from receiving or carrying them on such trains. Hobbs, the appellant, boarded one of the company's through freight trains, as it stood in the company's yard, where it was made up at Texarkana. He was not observed by the conductor until the train had gone six or eight miles on its journey, when the train was stopped in the neighborhood of a way-station, and Hobbs got off at the command of the conductor, after tendering his fare for a ride to his destination. This action was instituted to recover for the ejection. On the trial there was testimony tending to prove that Hobbs and others had been in the habit of riding on the through freight trains on this road, including the one in question, as passengers, without objection from any quarter; and Hobbs requested the court to charge the jury that if they should find that to be the true state of the case, he had the right to presume the regulation against carrying passengers was not in force, and that upon the tender of the usual fare to the conductor he should have been carried to his destination. The court refused these prayers for instructions; there was a verdict for the company; Hobbs appeals, and urges that the court erred in charging the jury otherwise than as requested by him.

The appellant does not contest the right of the company to enforce a regulation against the carriage of passengers on freight trains. As it is a salutary rule for the public as well as the company, the right of the Effect of prelatter to enforce such a regulation must be con- of regulation. ceded. Railway Co. v. Rosenberry, 45 Ark. 263;

vious violation

Railroad Co. v. Atchison, 47 Ark. 79. If the company's freight trains had been habitually carrying passengers in spite of the regulation to the contrary, and the conductor on the occasion in question had accepted fare from Hobbs for his intended ride, the relation of passenger and carrier would doubtless have been established with all the incidents that attend that relation. But the fact that the regulation had been violated, however great the extent of its violation, did not deprive the company of the right to begin the enforcement of it whenever it was deemed fit. Whatever may have been the custom of the company as to carrying passengers on its through freight trains before this time, on the occasion in

having accom

modations for

question the train had no appearance of being held out for Train had no the accommodation of passengers. It had no appearance of passenger coach attached, and was not found by Hobbs at a depot or other place where the presHarrison. ence of passengers could be anticipated. These facts of themselves were sufficient to bring notice home to Hobbs that the train was not intended for his accommodation. Where there is a division of the freight and passenger business of a railroad, the common presumption is that a person found on a freight train is not legally a passenger; and if he claims that he is, it devolves upon him to show a state of case that will rebut the presumption. Eaton v. Railroad Co., 57 N. Y. 382; Railway Co. v. Moore, 49 Tex. 47. That was not done by Hobbs in this case. He entered the train, under the circumstances detailed above, without the knowledge of the conductor, and without the consent of an agent of the company authorized to grant him the privilege; and having thus intruded himself into the train, it was lawful to eject him.

It is argued that it was unlawful to eject the appellant at a place other than a station. The point at which he was put Place of ex- off is shown to be in the State of Texas. In the abpulsion. sence of a statute restricting the right, the company might have put him off lawfully without reference to stations. Railway Co. v. Branch, 45 Ark. 524 It was not proved what the law of Texas is in that respect, but if we could yield to the appellant's argument that the presumption is that it is the same as our own, he could not profit by it. Our statutory restriction upon the company's right to put persons off their trains is confined to the single instance of a passenger who refuses to pay fare. Mansf. Dig. $5474. Beyond this the common-law right is not impaired. The appellant was not put off for the non-payment of fare. His ejection was lawful. Let the judgment be affirmed.

Passengers Riding on Freight Trains.-See Southern Kan. R. Co. v. Hinsdale, and note, ante, 256.

VIRGINIA MIDLAND R. Co.

V.

ROACH.

(Virginia Supreme Court of Appeals.)

Passengers-Riding on Engine Former Employee-Notice of Rules.-A person who has been in the employ of a railroad company as a fireman, is charged with notice of rules prohibiting any one but the engineer and certain employees from riding on the engine, which every employee was required to learn, and if he rides upon the engine, even though it be at the invitation of the engineer and conductor, he is a trespasser upon the train, and has no claim against the company for personal injuries sustained by him through the negligence of the company's servants.

ERROR to Circuit Court, Pittsylvania County.

Action of tort to recover damages sustained by the plaintiff while travelling upon the defendant's railroad. Defendant appeals from a judgment refusing to set aside a verdict for the plaintiff and order a new trial. The opinion states the facts.

Kirkpatrick & Blackford for plaintiff in error.

E. E. Boulden for defendant in error.

Facts.

HINTON, J.-This is an action of tort in which the plaintiff recovered a verdict for $500, and the sole question we have to decide now is whether the court erred in refusing to set aside that verdict, and to award a new trial in this case. As appears from the record, on the 6th day of March, 1883, E. B. Fortune, the engineer of the train on the narrowgauge railroad from Elba, in Pittsylvania county, to Rocky Mount, in Franklin county, invited the plaintiff to ride on the engine with him. The plaintiff, Roach, accepted the invitation, and rode about seven or eight miles to Pittsville. Here he got off the engine, and got into the passenger coach attached to the train, and rode some four or five miles to Sandy Level station, where he got off, and intended leaving the train, but the engineer again invited him to ride with him on the engine, and to go as far as Rocky Mount. This invitation the plaintiff accepted, and once more got upon the engine. There he found Payne, the conductor of the train,