Opinion
June 29, 1908.
John J. Kuhn [ Owen N. Brown with him on the brief], for the appellant.
Fullerton Wells, for the respondent.
The defendant was organized as a steam railroad under the general steam railroad act, but is now run after the manner of an electric street railway. In place of charging a uniform fare of 5 cents, however, it charges 10 cents to go over its line, which can be justified only under its right to charge 3 cents a mile as not being a street surface railroad, as allowed by the Railroad Law (sec. 37, sub. 5). In that way it charged and collected of the plaintiff 10 cents for riding less than three miles on its road, which is five or six miles long; and the plaintiff has recovered judgment against it for $50.01, i.e., for the overcharge of 1 cent and a penalty of $50, as allowed by section 39 of the Railroad Law in the case of a railroad asking or receiving more than the lawful rate of fare, "unless such overcharge was made through inadvertence or mistake, not amounting to gross negligence." The court below correctly found that there was no inadvertence or mistake. The evidence shows plan and intention, rather, under legal advice. If the defendant continues to claim its rights under the steam railroad law, rather than conform to the law of street surface railroads, it must conform to the former.
The judgment should be affirmed.
WOODWARD, HOOKER, RICH and MILLER, JJ., concurred.
Judgment of the Municipal Court affirmed, with costs.