Freidenrich v. Baltimore & Ohio Railroad

Brent, J.,

delivered the opinion of the Court.

This action was brought by the appellant to recover damages from the Baltimore and Ohio Railroad Company for an alleged unlawful expulsion from its cars.

He had purchased from the company a ticket of the class known as commutation tickets, good for travel over *207 the company’s road between Baltimore and Washington, for three months, from the 1st of February, 1877, to the 30th of April following. Being a special ticket, differing from the ordinary passenger ticket, it is issued only on special terms and stipulations, which are designated upon its face. Among those upon the present ticket are the stipulations, “to be' used only by M. A. Freidenrich, between Baltimore and Washington, from February 1,1877, to April 30, 1877,” and on the margin, “if found in the hands of any one but the party in whose name it is issued, this ticket will be forfeited and taken up.”

Before the expiration of the time mentioned, the appellant, Freidenrich, entered the cars of the appellee in Baltimore on his way to Washington. After leaving Baltimore and before reaching the Relay Station, a few miles out, the conductor took up the ticket of the appellant, and demanded from him the usual passenger fare. This the appellant refused to pay, and was thereupon on on reaching the Relay Station, put off the cars of the appellee.

The principal facts relied upon by the appellee to justify the act of its agent are, that the ticket in question had been used by persons, other than the appellant, in travel-ling over its road, and that in the removal of the appellant from its cars, after the taking up of the ticket and his refusal to pay the usual fare, no force, violence or harsh language was used on the part of its agent.

The appellant on the other hand testified, that he had never parted with the possession of the ticket, and that it had never been used by any other person than himself.

After the evidence was closed the appellant presented three prayers, and the appellee seven. The first prayer of the appellant was modified hy the Court, and the second and third prayers granted, as were also the first, fourth and seventh of the appellee. The verdict being against the appellant, he now claims there was' error in the modi *208 fication of his first prayer, and in granting the three prayers of the appellee.

The first prayer asks the Court to instruct the jury that the plaintiff is entitled to recover, if they find the ticket in question was taken from his possession and he ejected from the cars, and “shall further find that the said plaintiff did not loan, sell, or in any manner transfer said ticket to any other person, or knowingly permit any other person to use said ticket before that time.” The Court here added, “and shall find that said ticket was not used hy any other person than the plaintiff, through the negligence or want of due care on the part of the plaintiff,” and this is the modification complained of.

This prayer seems to,admit that the ticket was properly taken from the appellant, if before that time it had been used hy any other person with his connivance. But even if it does not, there can be no question of its forfeiture if so used, and the agent of the road had afterwards the right to take it up even in the hands of the person to whom it was issued. It was the subject of contract between the company and passenger, and the conditions and stipulations annexed became mutually binding so soon as the ticket was issued by the one and accepted by the other. The company thereby became bound to carry the appellant upon its cars according to the terms of its undertaking, and he on his part was bound by all the terms and conditions upon which the ticket was issued. Among these conditions, as before stated, was its forfeiture if used hy another person, and if so used, it was to be taken up.

This we think is the reasonable construction of this part of the contract between the parties, as expressed upon the face of the ticket, and is the one adopted by the Circuit Court in its instructions to the jury.

But it is contended that the Court erred in its modification of the appellant’s first prayer, by adding, “and *209 shall find that said ticket was not nsed hy any other person than the plaintiff, through the negligence or want of due care on the part of the plaintiff.”

There are circumstances under which the use of the ticket hy another than the person to whom it was issued would not have the effect of its forfeiture — where, for example, it had been taken from him by force or violence, and some means against which he could not have reasonably guarded — but he cannot be excused if he has been guilty of negligence or a want of due care. From the character of the ticket, and its liability to be used by another, in fraud of the agreement that it is to be used only by the person to whom issued, the implied obligation rested upon him when he accepted it from the company to keep it with due and proper care. If, from his negligence, it came into the hands of another, and was fraudulently used upon the company’s road, he is just as amenable to its forfeiture as if it had been used with his assent.. In this respect the law was properly stated by the Court in its addition to the prayer. As there was, however, no question of negligence raised by the proof in the case, the addition to the prayer was unnecessary. But manifestly it could not in any respect have prejudiced the case of the appellant before the jury. This being so, this Court has repeatedly said, it is not sufficient cause for a reversal.

The prayers on the part of the appellee, which were granted, seem fully to cover the evidence offered. The appellee gave proof that the ticket in question had been used by persons other than the appellant, and the appellant that it had never been out of his possession, and had never been used by any one but himself. And this was the only question of fact presented by the whole proof for determination to the jury.

The objection relied upon to these prayers as granted is that they are inconsistent with the first prayer as modified and granted on the part of the appellant, inasmuch *210 as they are silent in regard to “ the negligence or want of due care on the part of the plaintiff.”

(Decided 11th March, 1880.)

Instructions given to the jury by the Court are confined to the evidence in the particular case. They are not intended or required to cover more than the evidence offered, or to state any principle of law which is not applicable to it. Although the law in regard to negligence was truly stated by the Court in its first instruction, it was not really a question, as we have before said, arising'upon the proof in the case. Its omission, therefore, from the prayers granted in behalf of the appellee was not error. Nor was’ it in any way calculated to confuse or mislead the jury.

When the appellee offered proof that the ticket had been improperly used upon its road, the burden, was upon the appellant to show that it had never been so used, or if used, that it was not through any fault or want of due care on his part. He elected the former issue, and sought to establish to the satisfaction of the jury that, in fact, the ticket had never been used by any one else hut himself. The testimony was flatly contradictory and irreconcilable, and it was only upon this direct issue raised by the proof that the jury was called upon to decide.

The instructions of the Court fairly submitted to the jury the law and facts in the case. We have failed to discover in them any error sufficient for a reversal. The judgment will, therefore, he affirmed.

Judgment affirmed.