Opinion
March, 1904.
I.R. Oeland, for the appellant.
Eugene V. Brewster, for the respondent.
This action is to recover a penalty upon the refusal of the defendant to furnish a passenger with a transfer ticket. The learned counsel for the appellant states in his brief: "By agreement of the parties, the cases of David Ehrlich, Pincus Beck, Nathan Silverman, Harry Rosenberg and Louis Shargin were all tried at the same time, and verdict was rendered for each plaintiff for the sum of $50, and judgment was entered upon the verdicts, the evidence being identically the same in each case. By agreement of counsel, the case on appeal in the case of Louis Rosenberg is to control in the other cases. * * * The one appeal is to decide the rights of all the other parties."
The plaintiffs were young lads riding in company upon a car of the defendant. The evidence shows that they asked for the transfers as passengers in good faith. There is no question but that they duly demanded the transfers, or that the transfers were not given, or that the conductor finally gave as the ground of refusal that he had theretofore given out all of such tickets. The learned counsel for the appellants makes the point that the undisputed testimony establishes that there was no willful refusal to give transfers, and that, therefore, there was no case for the plaintiff. But one of the lads testifies: "We asked about transfers. The conductor we asked a few times. He says he has not any; he asked for fare first — We asked a few times and he refused. When we asked him at the beginning he didn't want to give us any. When we asked him for the transfers at Flatbush and Atlantic he says he has not any when we asked him. * * * I saw him give them to somebody else. He went by us and went to the front. He started out to give out the transfers where the motorman is, up in the front, and when he came back said `I have not got any transfer.' I have not talked it over with anybody; never talked it over with anybody. Never talked it over with the party. Never talked it over with any of the boys that were with me in this little disturbance. This is the first time I ever spoke about it. I swore to this same story on the stand on the other case. * * * I say the conductor passed me before he gave out the transfers on the front, he skipped me. Before he got to the front I asked him for a transfer. He refused to give it."
And further, another witness testified that when the conductor told him that he did not have any transfers left, they asked him for a slip showing that they had paid their fare for use upon the other car, but that he replied that he didn't want to lose time — he must go right ahead. At that time, a car sought by the lads was approaching, and the conductor was then informed of this by them. So far as the first piece of testimony is concerned, it presents evidence of a willful refusal to furnish transfers. As to the second, it cannot, I think, be said that, as matter of law, the defendant was absolved even if it were true that the conductor at that time did not have the usual transfer ticket. The purpose of the statute is to assure the passenger a continuous ride. As between the passenger and the company, it was the fault of the company if the conductor did not have the usual transfer ticket, inasmuch as the company was bound, under the statute, to furnish it. In such an emergency, if it existed, no good reason appears why the conductor could not have furnished a slip as requested, for use on the approaching car, with an oral explanation to its conductor, or could not, perhaps, have explained the situation to that conductor regardless of any slip. In any event, it would be going too far to hold the company excused upon the bare plea that its agent did not have the ticket which, by the statute, it is required to furnish. It is, of course, immaterial, so far as this action is concerned, that the lads indulged in skylarking on the car. Nevertheless, they remained passengers entitled to the rights assured to passengers by the statute.
I think that GAYNOR, J., correctly submitted the case to the jury, and that the judgment and order should be affirmed, with costs.
All concurred.
Judgment and order affirmed, with costs.