Herbst v. Tidewater Power Co., 161 N.C. 457 (1913)

March 19, 1913 · Supreme Court of North Carolina

161 N.C. 457

FRANK HERBST v. TIDEWATER POWER COMPANY.

(Filed 19 March 1913.)

Carriers of Passengers — Street Railways — Passenger’s Opportunity to Procure Tickets — Ejection from Car — Damages.

While a carrier of passengers is liable in damages to a passenger for ejecting him from its cars for failure to have a ticket, when they have not afforded him a reasonable opportunity to procure one, the principle does not apply where a street car company, charging a 5-cent cash fare, sells six tickets for 25 cents, and the passenger, having had ample opportunity to buy them, goes to the seashore terminal, where, owing to the season of the year, tickets are not sold, of which he previously knew; and returning, offers to buy tickets from the conductor at a place on the line where he knows the conductors did not sell them, and, refusing to pay the cash fare, is ejected from the car.

Appeal by plaintiff from Carter, J., at December Term, 1912, of New HaNOvee.

This is an action to recover damages for the alleged unlawful ejection of the plaintiff from the defendant’s car on its suburban electric railway line operating between Wilmington and Wrightsville Beach.

The following facts appear from the admissions in the pleadings and from the evidence:

1. That defendant is a common carrier of passengers and freight, operating a railway between Wilmington and a station on "Wrightsville Beach, called “Lumina.”

2. That plaintiff had been a passenger on the downward trip and spent the afternoon at Lumina, and “toward evening, about suppertime, 6 or 6 :30 (27 August, 1911) he concluded to return, and got on the cars at Lumina, the terminal station of the company.”

3. Defendant had a ticket office, and before entering the train, plaintiff went to the ticket office to buy tickets.

4. The ticket office was closed and he could not get the tickets.

5. Plaintiff got on -the cars without objection.

6. The plaintiff, when called on for tickets, told the conductor that he “could not get them at the ticket office” at Lumina, and offered 25 cents to the conductor, asking him to get him the tickets on the other side of the trestle, at Wrightsville.

7. That the conductor demanded of the plaintiff the regular fare of 5 cents, which he refused to pay, insisting on his right to buy six tickets for 25 cents.

8. That at this time of the year the defendant did not maintain an office at Lumina, but had a ticket agent on its cars from near Bradley’s Creek to Wrightsville, who sold six tickets for 25 cents.

9. That the plaintiff knew of these facts, and on the evening of the injury complained of, he got on the cars at Bradley’s Creek, and passed through Wrightsville to Lumina.

. The plaintiff testified: “I think there were ticket agents on all of these Beach cars. They went down as far as Wrights-ville and got off at the frog. Those ticket agents sold tickets. The conductors did not sell any. I think the only kind of fare you could pay the conductor was a cash fare.”

10. That plaintiff was ejected after he offered to buy tickets.

. There was also evidence that when passengers had not had the opportunity to buy tickets, that the conductor going to Wilmington would pkss them, and let them buy tickets at Wrights-ville.

There was a judgment of nonsuit, and tbe plaintiff excepted and appealed.

W. J. Bellamy and J. D. Bellamy & Son for plaintiff.

Davis & Davis, A. G. Ricaud, andK. 0. Burgwin for defendant.

AlleN, J.

We have no disposition to relax tbe rule announced in Ammons v. R. R., 138 N. C., 555, and in Harvey v. R. R., 153 N. C., 567, as to tbe duty of tbe carrier of passengers to afford reasonable opportunity to procure a ticket, but its application to tbe facts in evidence sbow no breach of duty on tbe part of tbe defendant.

Tbe plaintiff, went from Bradley’s Creek to tbe Beach, and it was on tbe return trip that be was ejected from tbe car, upon bis refusal to pay tbe regular fare. He bad been notified that at that season of tbe year no ticket office was kept open at Lumina, and be knew be could buy tickets from ticket agents on tbe cars from Bradley’s Creek to Wrigbtsville, and that tbe conductors did not sell tickets and could only take a cash fare. If, after being afforded an opportunity to buy tickets, be failed to do so, and was ejected for failure to pay tbe regular fare of . 5 cents, because be wished to test bis right to buy six tickets for 25 cents from tbe conductor, wllen be knew tbe conductor did not sell tickets, be has no one to blame except himself.

Tbe judgment of nonsuit was properly entered.

Affirmed.