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other light than that of wholesale murder. And when they are attempted to be salved over by the trite falsehood of the general, or comparative, security of railway travelling, it is time to remonstrate, both against the supineness of railway directors and employees, in leaving open so much room for these calamitous occurrences, and the facility with which the public mind is hoodwinked and deluded into the belief that they are inevitable, and that they are but the necessary instruments of human demolition, in order to secure us against the too great multiplication of the race and the possible immortality of our poor humanity. The truth undoubtedly is, that the public have a right to require that this majestic mode of passenger transportation be made not only as safe as any other, but that it be made as safe as it is possible.
3. The fact that injury was suffered by any one while upon a railway train, as a passenger, is regarded as prima facie evidence of the liability of the company. Hegeman vs. The Western Railway, 16 Barb. Sup. Ct. R. 353; S. C. 3 Kernan, 9; Redfield on Railways, § 149, note 6.
4. It will make no difference in regard to the liability of the company, that the passenger was travelling on a free ticket. Derby vs. Philadelphia and Reading Railway Company, 14 How. U. S. R. 468, 483. It is the nature of the undertaking, and not the consideration, which creates the duty; and it makes no difference whether the consideration is of a pecuniary character, or results merely from the confidence reposed in the company. Their duty in regard to care, and diligence, and skill, is the same, in every respect, in either case.
5. But if the party chooses to ride on the engine, or in any other exposed situation, for his own convenience, after being made aware of his peril, the company are not responsible for the consequences. So too, if one accept a free ticket of the company, one of the expressed conditions of which is, that the company assume no responsibility in regard to the transportation either of the passenger or his baggage, the condition is binding. Welles vs. New York Centrai Railway, 26 Barb. R. 341. But if, in such case, the passenger is injured by gross negligence of the company, they are still liable
Bissell vs. New York Central Railway, 29 Barb. 602; Redfield on Railways, § 149, § 28, pp. 24-36, 328-330. And if one ride upon a freight train, for his own accommodation, he is not at liberty to demand the same accommodation or security which would be expected in passenger trains, but only such as is reasonable under the circumstances. See cases collected in Redfield on Railways. § 183, note 3.
II. The next subject which seems to demand our attention in this connection, is the power of railway companies to make rules and regulations affecting the conduct of passengers. This subject has been considerably discussed, first and last, but it is now firmly settled, that all such regulations as are necessary and reasonable are binding upon passengers. Hodges on Railways, 553; Redfield on Railways, § 28, pp. 24-36, and cases cited.
1. Railway companies may exclude or remove persons from their cars, stations, or grounds, for violation of the proper regulations and by-laws of the corporation. This may extend to the exclusion of persons having no business there, and the regulation of the conduct of such as have. Commonwealth vs. Power, 7 Met. R. 596; Hall vs. Power, 12 Met. R. 482; Barker vs. Midland Railway, 36 Eng. L. & Eq. R. 253; Redfield on Railways, §§ 26, 27, 28, pp. 24-36, and cases cited.
2. Railway companies may discriminate between fares paid at the stations and those paid in the cars. This is reasonable and just, since it costs the company more to collect fares in the cars than at their stations, inasmuch as they have it not in their power to impose the same checks in regard to accountability. In the English and foreign railways, no passenger is allowed to enter a carriage of the company without a ticket, and it should be so here; and would be, doubtless, were it not for the difficulty of inducing Americans always to submit to reasonable constraint at the hands of others, where they do not fully comprehend its urgent necessity. In some parts of the United States the same regulations are enforced as on the foreign railways, but in other sections, such restrictions would be liable to produce embarrassment, and in some cases, uproar and collision with the servants of the company we fear. But as there is not the least question the companies have
the right to the rigid and strict enforcement of all such regulations, and have also a deep interest in their enforcement, it is hoped they will soon be enabled to do so. Hilliard vs. Goold, 34 N. H. R. 230; Chicago, Burlington and Quincy Railway vs. Parks, 18 Ill. R. 460; Crocker vs. New London W. & P. Railway, 24 Conn. R. 249; Redfield on Railways, §§ 26, 28, and notes. But where railway companies make a discrimination between the rate of fare paid in the cars and at stations, they must afford every reasonable facility for procuring tickets at the stations. St. Louis and Chicago Railway vs. Dalby, 19 Ill. 353.
3. So, too, the company may discriminate between way fare and through fare. Reg. vs. Frere, 29 Eng. L. & Eq: R. 143; Redfield on Railways, § 28, pl. 3, n. 3, 4.
4. And a regulation requiring passengers to go through in the same train, and if they do not, requiring them to pay fare for the remainder of the route, is entirely valid. Cheney vs. Boston and Maine Railway, 11 Met. R. 121; 1 Am. Railway Cases, 601; Redfield on Railways, § 28, pl. 4, and notes. And if the regula tions of the company allow a passenger to stay over and then complete his trip on the same ticket, where he obtains the permission of the conductor and a memorandum on his ticket, he cannot claim that privilege without such memorandum. Beebe vs. Ayres, 28 Barb. R. 275. And if he refuse to pay additional fare he may be expelled from the cars. Ib.
5. So also if one have a ticket marked "good only two days after date," he is not entitled to demand permission to ride upon it after the expiration of the time. Such a condition is regarded as evidence of a contract between the company and the passenger, that they shall not be required to carry upon the ticket after the expiration of the term limited. Boston and Lowell Railway vs. Proctor, 1 Allen R. 267.
6. A regulation excluding merchandise from passenger trains, even where it does not exceed the weight of the ordinary baggage of a passenger, is valid, since merchandise is not baggage. Merrihew vs. Milwaukee and Mississippi Railway, 5 Am. Law Reg. 364.
7. And where the company, by standing regulation, required passengers paying in the cars to pay five cents more fare than if they paid at the stations, and a passenger paid only from station to station, it was held that he was liable to pay the additional five cents at each time of payment. Chicago, Burlington and Quincy Railway vs. Parks, 18 Ill. R. 460.
8. The servants of the company may enforce the just regulations of the company in a reasonable manner; and in so doing, the company are bound by their acts, and responsible for any peril or expense they incur on that account. But where a conductor or other employee of the company exceeds the reasonable limits of the law, in applying gentle force in the expulsion of a passenger from the cars, or in any other mode of enforcing such regulations, and thereby himself becomes the aggressor, he is liable for his own acts, and has no claim upon the company for indemnity. But the authorities are not agreed, whether in such case the company are liable also for the unauthorized act of their agent while employed in their business. The better opinion seems to be, that they are liable for the acts of their servants, so long as they keep within the limits of their employment, although they exceed their authority. The Eastern Counties Railway vs. Broom, 2 Eng. L. & Eq. R. 406; S. C. 6 Railway C. 743; State vs. Vermont Central Railway, 27 Vt. R. 103; Redfield on Railways, §§ 28, 160, 169, 225, and notes. This is certainly the general rule in regard to the liability of the master for the acts of his servants, and we see no reason to question its application to the case of corporations generally, or railways in particular. It is now entirely settled by the great preponderance of authority, both English and American. that railway companies and other corporations are liable to indictment for the acts of their officers and servants in transcending the powers secured by their charters. Reg. vs. Rigby, 6 Railway Cases, 479; Queen vs. Scott and others, 3 Q. B. R. 543; Commonwealth vs. Nashua and Lowell Railway, 2 Gray, 54; Same vs. New Bedford Bridge Co., Id. 339; opinion of PATTERSON, J., in Regina vs. Birmingham and Gloucester Railway Co., 3 Q. B. R. 231, and in Redfield on Railways, 515, note 2, § 225.
9. But it seems to be conceded that railway companies cannot impose and enforce penalties, either upon passengers or strangers coming upon their grounds, except in conformity to express statutory powers granted for that specific purpose. Matter of Long Island Railway, 19 Wendell R. 37; S. C. 2 Am. Railway, C. 453.
10. And a by-law, declaring that the company would not be responsible for a passenger's baggage unless booked, and the carriage paid, is bad, as being inconsistent with the general provisions of the English statute, allowing railway passengers to carry a certain amount and kind of baggage. Williams vs. Great Western Railway, 28 Eng. L. & Eq. R. 439. But this decision is questioned. Redfield on Railways, § 26, note 10.
11. There is a pretty general impression in many portions of the country, that the passenger stations of railway companies are public places, open to the ingress and egress of all persons, whether they have business there or not; and that any one has the right to pass and repass along the track of a railway. But nothing is farther from the truth. Mere loiterers have no more right to make a railway station the place of their rendezvous, than they have to apply a private dwelling, or a shop or storehouse, to the same purposes. And any persons presuming to come upon the company's land, whether at the stations or along the line of the road, are not only trespassers, in the strict technical sense, but they are intruders and intermeddlers, in the most offensive sense, since they thereby not only needlessly embarrass the operations of the company and expose their own lives to unnecessary peril and destruction; but they do also in more ways than we can here stop to enumerate, sadly and painfully imperil the lives of others. Redfield on Railways, § 27, pp. 28, 29, § 172, note 10. This is a thing which would not be tolerated in any State or country where government, in all its departments, was enabled to exercise the proper control. But we are sorry to say, that the American people, with the best and purest intentions, are slow to submit to restrictions upon their freedom of action, the absolute necessity of which they do not comprehend. We trust they are now in a