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was provided as follows: "Sec. 26. That every railroad company in this State shall cause all its trains of cars for passengers to entirely stop upon each arrival at any station, at any town or village having a population of three thousand, and all trains advertised by such company to stop at any station for the receiving of passengers shall stop the same at such station for a time sufficient to receive and let off passengers; and every company, and every person in the employment of such company, that shall violate, or cause, or permit to be violated the provisions of this section, shall forfeit and pay for each offence not more than one hundred nor less than twenty-five dollars, to be recovered in a civil action, on complaint of any person before any justice of the peace of the county in which the violation shall occur, and in all cases of violation of the provisions of this section the company whose agents shall cause or permit such violation shall be liable for the amount of such forfeiture, and in all cases the conductor upon such train shall be held prima facie to have caused the violation of this section, which may occur by the train in his charge, and said forfeiture to be recovered in the name of the State of Ohio for the use of common schools."

J. T. Brooks, for plaintiff in error.

S. R. Harris, for defendant in error.

OKEY, C. J.-The claim is urged that when Wentz purchased the ticket at Bucyrus, and also when he retained his seat in the limited mail at Crestline, he knew that train did not stop at Bucyrus; and hence, that in making the agreement the parties were in pari delicto, and that in retaining his seat at Crestline, Wentz was guilty of negligence, either of which facts should defeat a recovery. But we need not determine how far such knowledge should affect a recovery. It is sufficient to say the court charged the jury that such knowledge, if he had it, would defeat Wentz's action, and that the jury found in his favor. This, therefore, was in effect a finding of the jury that he did not have such knowledge; and, after a careful examination of the evidence, we cannot say such finding was clearly wrong.

A further claim is made, that there was a special contract between Wentz and the company. No doubt a special agreement between the parties that Wentz should only use the ticket he purchased at Bucyrus upon a particular train would have been valid, whether made before or after the passage of the act of 1867. But no such agreement was proved. Nobody testified to anything of the sort. Indeed, there was no evidence whatever that any conversation concerning any special agreement between the parties was ever held. The only facts to show such agreement were the words on the ticket, the printed time-table posted in the offices of the company, showing that the limited mail did not stop at Bucyrus, and the residence of Wentz in the neighborhood of Bucyrus for several years. But it is perfectly well settled that these facts

do not prove any special agreement. Railroad Co. v. Campbell, 36 Ohio St. 647. Indeed, there is no evidence that the attention of Wentz was ever directed to the words on the ticket or the timetable, or that he ever saw such table.

Conceding, however, the claim of the company that when Wentz purchased the ticket at Bucyrus, he consented to the conditions. appearing thereon, the question remains whether, even then, his right of action is defeated, the jury having found, as already stated, that he did not know, when he presented the ticket, that the limited mail did not stop at Bucyrus. The place at which he was ejected was not at a station, nor at any habitation, but in or near woodland, and the time was one o'clock at night. The sole ground for ejection was that he could not consent to be carried twenty-eight miles beyond the station named on the ticket. Even laying out of view the statute, it would be difficult to maintain the proposition that such ejection was justifiable. Thompson's Car. of Pas. 340.

But the right to recover may be placed on broader ground. The stipulation on the ticket was, as we have seen, that the holder would not use it on trains which did not regularly stop at Bucyrus. In the absence of statutory provision to the contrary, a railroad company may adopt a regulation that a certain train or trains of passenger cars running regularly on its road shall not stop at designated stations or places, and one travelling as passenger on such road is bound to inquire whether the train upon which he takes passage stops at the station or place to which he is going. Pittsburg, etc., R. Co. v. Nuzum, 50 Ind. 141; Ohio, etc., R. Co. v. Applewhite, 52 Ind. 540; Ohio, etc., R. Co. v. Swarthout, 67 Ind 567; Chicago, etc., R. Co. v. Randolph, 53 Ind. 510. And, in the absence of any statutory provision, where the conductor of a road which has made such regulation finds, after the train has started, a passenger who holds a ticket for a station at which such train does not stop, he may, in a proper manner, be removed from such train. Thompson's Car. of Pas. 375. But the power of a railroad company to adopt or enforce such regulation, is subject to legislative control. Com. v. Eastern R. Co., 103 Mass. 254; Shields v. The State, 26 Ohio St. 86; S. C. 95 Ú. S. 319; The State v. New Haven, etc., Co., 43 Conn. 351; New Haven, etc., Co. v. The State, 44 Conn. 376; Pierce on Rail. (ed. of 1881), 450.

The act of 1867, set forth in the statement of this case, is such legislative control. While it is clear that this action was not prosecuted under this section, it is equally clear that the alleged contract, whereby Wentz purchased a ticket from Bucyrus to Crestline and return, must be construed with reference to such section. Lindemann v. Íngham, 36 Ohio St. 1, 10. This is an action for the alleged wrong done to Wentz, and it is not material whether it should be regarded as in tort or on contract, for in either case the 3 A. & E. R. Cas.-31

question is whether he had a right to retain his seat on production of his ticket. Sometimes it is difficult to determine whether a matter is so far illegal that it cannot be the subject of an agreement. But in this case the provision is express, that all passenger trains shall stop on arrival at a municipal corporation having a population of three thousand; this is a statutory regulation for the benefit of the public; and moreover, a penalty is provided for a failure to comply with the requirement. An agreement-assuming that one was made-recognizing the validity of a regulation to disregard such statutory provision, is, according to the authorities, clearly illegal. Spurgeon v. McElwain, 6 Ohio, 442; The State v. Findley, 10 Ohio, 51; Bloom v. Richards, 2 Óhio St. 287; Huber v. Ger. Con., 16 Ohio St. 371; Delaware Co. v. Andrews, 18 Ohio St. 49; Hooker v. De Palos, 28 Ohio St. 251; Leake on Con. 723.

The purchase of the ticket, authorizing Wentz to travel on passenger trains of the company from Bucyrus to Crestline and return, was manifestly lawful, and that purchase was fully executed when Wentz paid the money and received the ticket as his voucher that such fare was paid. It is true that the ticket contained a stipulation that the purchaser thereof "agrees to use it only on such trains as regularly stop at both stations named," that is, Bucyrus and Crestline. But as the law required all passenger trains to stop at Bucyrus, and as the train upon which he was riding was a passenger train, he might well and properly assume that the law would be obeyed. Such limitation on the use of the ticket, being in violation of the statute, should be disregarded, while the payment of fare for a passage from Bucyrus to Crestline and return should be held to create an obligation on the part of the company to perform such service for Wentz on any passenger train of the company. This is in accordance with Pigot's case, 11 Coke, 27 b, in which it was resolved, "that if some of the covenants of an indenture, or of the conditions indorsed upon a bond, are against law, and some good and lawful; that in this case the covenants or conditions which are against law are void ab initio, and the others stand good." This principle has been reasserted in many cases. The whole subject is ably considered in Wald's Pollock on Con. ch. VI.

If there was any error in the rulings in the court of common pleas, it was not to the prejudice of the plaintiff in error. In any view that can be taken of the case, the judgment below is right. Judgment affirmed.

See New Haven, etc., Co. v. Hamersley, 2 Am. and Eng. R. R. Cae. 418; Lake Shore, etc., R. R. Co. v. Pierce, ante, p. 340.

CLEVELAND, COLUMBUS, CINCINNATI AND INDIANAPOLIS R. R. Co.

v.

NEWELL.

(Advance Case, Indiana, Nov. 28, 1881.)

Suit for injuries sustained while being carried on a passenger train of appellant. The only question is as to the instructions given. The latter clause of the 8th was as follows: "In determining whether the rate [of speed] was unsafe on the occasion in question, you should consider whether the velocity was greater than that which had been practised before with the tacit consent of the community and without accident." This is not the law. The fact that trains have been run over a railroad at a high and dangerous speed without injury is not conclusive that it will continue to be so and thereby relieve the company from liability on account thereof. The tacit acquiescence in, and toleration of a wrong for the time being, by the community, does not justify a repetition and a perpetuation of the wrong.

The 11th was as follows: "It appears that the west bound express, passing over the rail a short while before the east bound train, in which Mr. Newell was being carried, was thrown from the track. There is no presumption that the rail was broken before this train reached it, and if the plaintiff claim that it was, the burden of proof is upon him." It is well settled that where a passenger is injured by a train running off the track the law raises, prima facie, a presumption of negligence on the part of the railroad company. In this case there was specific facts tending to constitute negligence on the part of the company, and to say that the company must defeat the general presumption of negligence by proof, and at the same time the injured party must establish the facts constituting negligence by proof, without the general presumption being removed, would be strange logic, and would tend to confuse and mislead the jury. The court erred in its instruction.

FROM the Marion Superior Court.

H. H. Poppleton, J. T. Dye, and A. C. Harris, for appellant. B. Harrison, C. C. Hines, and W. H. H. Miller, for appellee. FRANKLIN, C.-Appellee sued appellant for injuries received while being carried on a passenger train by appellant; issue by a denial; trial by jury; verdict for appellant; motion for a new trial overruled, and judgment for appellant; appeal to general term, and judgment of special term reversed; appeal to this court, and the error assigned here is the reversal by the general term of the judgment of the special term; and this brings in review the error assigned in the general term, which was the overruling of the motion for a new trial.

The only questions presented to the court in general term, and that are insisted upon in this court, arise upon the instructions to the jury. The instructions, six, eight, ten, eleven and thirteen, given by the court, were excepted to by appellee's counsel, and upon them the court below in general term reversed the judgment in special term. Questions as to instructions five, six, seven

and eight, asked by appellee's counsel, and refused, were also reserved. But as these instructions, which were refused, were substantially contained in those given by the court, and equally as favorable as the appellee asked, their refusal was harmless. Crandall v. The First National Bank, etc., 61 Ind. 349; Steeple v. Downing, 60 Ind. 478; The Ohio, etc., R. W. Co. v. Dickerson, 59 Ind. 317; The City of Indianapolis v. Gaston, 58 Ind. 224.

We see no error in the sixth, tenth and thirteenth instructions given. The latter clause of the eighth instruction reads as follows: "Whether the rate of speed adopted in this instance was unsafe, is for you to determine as a question of fact. The law does not fix the rate of speed at which cars may be run upon a railroad, except to require that it shall not be excessive or dangerous. Whether it is so or not will depend, to some extent, upon the safeguards which are adopted to prevent accidents; and, in determining whether the rate was unsafe, on the occasion in question, you should consider whether the velocity was greater than that which had been prac tised before, with the tacit consent of the community, and with

out accident."

This clause in the instruction well says that the law requires that the cars shall not be run at an excessive or dangerous speed; but how is the question of excessive or dangerous speed to be settled! Certainly not by proving the tacit acquiescence of a community in a certain rate of speed, but by proving the fact as to what rate of speed would be reasonably safe in the case in controversy. No rate could be established, consistent with the idea of railroad travel, that would be absolutely safe, though it should be as near so as human wisdom and skill can reasonably make it. A safe rate of speed on one railroad line is not a definite criterion for another, unless the latter is in a similar condition to the former. What would be a safe speed on one railroad line might be a very dangerous speed on some others. The alignment and grades of a road, as well as the road-bed, superstructure and rolling stock, are all to be considered with reference to their perfectness in establishing that highest speed with which it would be safe to run cars over the road. The railroad companies have exclusive control of all these considerations, and each one establishes its own speed at its own risk, and if it establishes a dangerously high speed, it is liable for any injury resulting on account thereof, and cannot shield itself from responsibility under the patronage and acquiescence of the community.

The fact that trains have been run over a railroad line at a high and dangerous rate of speed, without injury, is by no means conclusive that it will continue to be so, and thereby relieve the company from liability on account thereof. The tacit acquiescence in, and toleration of, a wrong for the time being, by the community, does not justify a repetition and perpetuation of the wrong.

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