Statement of the Case.

really made no difference, as the rules of the road forbade his taking the punched coupon at Olean, and required him to do as he had done, although, upon cross-examination, he admitted that he knew the coupon had not been used to Salamanca, because the punch marks in it had been made by the conductor on the train next ahead of his.

The rules and regulations of the road in force when these occurrences took place were introduced in evidence by the defendant, and with respect to stop-over privileges were as testified to by the conductor. It appeared that these regulations were put up in the cars of the company in 1875, but were not supposed to be remaining there in the year 1882; and it was not shown that the plaintiff ever had any knowledge or notice of their existence. The statutes of the State of New York allowing railroad companies organized under the law of that State to make needful rules and regulations relative to the management of their passenger traffic, and also permitting them to put a passenger who refuses to pay his fare off their trains, using no more force than is necessary for such purpose, were also put in evidence.

The conductor of the train which finally carried the plaintiff to Salamanca was not called as a witness, nor was his absence accounted for; but there was evidence of a high official of the road, brought out on cross-examination, that there were other ways of providing for a passenger entitled to a stop-over privilege than by giving him a stop-over check.

All the plaintiff's testimony with respect to the damages he had sustained, and also with respect to his conversation with the agent who sold him his ticket, was admitted, over the objections of the defendant, and exceptions were duly noted thereto.

At the close of the testimony the defendant presented eleven separate prayers for instructions to the jury, but the court declined to give them except so far as they were embodied in the general charge, and the defendant excepted. The plaintiff's counsel then stated that he should not claim to the jury that more force was used in expelling the plaintiff from the train than was necessary to overcome his resistance; and that element was, therefore, eliminated from the case.

Argument for Plaintiff in Error.

There was no question in the case respecting the measure of damages, as the instructions of the court upon that question were not excepted to.

Mr. Calvin P. Sampson and Mr. Seth J. Thomas for plaintiff in error.

Whether there is such proof of agency as to warrant admission of the acts and declarations of the agent in evidence is a preliminary question for the court. United States v. Clicquot's Champagne, 3 Wall. 114. In the case at bar the ruling of the presiding judge, in this respect, was erroneous. Neither an agency nor the authority of an agent can be proved by the testimony of a witness to conversations with the supposed agent out of court. So far as respects the authority of the Fitchburg road to bind this company it does not appear that this company had given it any authority, except to sell tickets over its road with limitations and conditions printed on their face. It is quite different from the case of a sale of tickets by its own agent over its own road. Lake Shore & Michigan Southern Railway v. Pierce, 47 Michigan, 277; McClure v. Phil. Wilm. & Balt. Railroad, 34 Maryland, 532; Burroughs v. Norwich & Worcester Railroad, 100 Mass. 26.

In Wait v. Albany & Susquehanna Railroad, 5 Lansing, 475, the court stated their opinion that the power in a railroad corporation to make a contract to carry beyond its line is coincident with the power to make contracts for transportation with other carriers, and is confined to the governing officers of the corporation, and that its subordinate agents do not possess that power unless it has been expressly conferred upon them, or has been so exercised as to have become the established course of business. See also Grover & Baker Co. v. Mo. Pac. Railroad, 70 Missouri, 672; Phillips v. North Carolina Railroad, 78 North Carolina, 294; People v. Chicago & Alton Railroad, 55 Illinois, 95.

We submit that substantially this case has been twice decided by this court; first in Mosher v. St. Louis, Iron Mountain &c. Railway Co., 127 U. S. 390, and more recently in Boylan v. Hot Springs Railroad, 132 U. S. 146.

Opinion of the Court.

As to the duty of the presiding judge to give the instructions asked, on the subject of damages, although he had already instructed on that subject, not inconsistently with them, we cite: Mosher v. St. Louis, Iron Mountain & Southern Railway Co., 127 U. S. 390; Boylan v. Hot Springs Railroad, 132 U. S. 146; Townsend v. New York Central Railroad, 56 N. Y. 295; Shelton v. Lake Shore & Michigan Southern Railway, 29 Ohio St. 214; Bradshaw v. South Boston Railroad, 135 Mass. 407; Frederick v. Marquette &c. Railroad, 37 Michigan, 342; Petrie v. Pennsylvania Railroad, 13 Vroom (42 N. J. L.) 449; Pennington v. Philadelphia, Wilmington & Baltimore Railroad, 62 Maryland, 95; Rawitzky v. Louisville & Nashville Railroad, 40 La. Ann. 47; Louisville & Nashville Railroad v. Fleming, 14 Lea, 128; Churchill v. Chicago & Alton Railroad, 67 Illinois, 390; Chicago, Burlington & Quincy Railroad v. Griffin, 68 Illinois, 499; Baker v. Coflin, 31 Barb. 556.

Mr. Clifford Brigham (with whom was Mr. Lewis S. Dab ney on the brief) for defendant in error.

MR. JUSTICE LAMAR, after stating the case, delivered the opinion of the court.

There were eleven assignments of error originally, based upon certain exceptions to the rulings of the court during the progress of the trial, but in the brief of counsel for plaintiff in error they have been reduced to eight. As the only one of these exceptions that was properly saved, under our rules, was that relating to the admission of evidence as to what the ticket agent at Boston said to the plaintiff when he purchased his ticket, we would, perhaps, be justified in limiting our consideration to that point. Aside from this informality or defect in the exceptions saved, however, and as the assignments of error all refer either directly or remotely to that point, and thus relate to but one subject, we shall consider them, not separately, but shall, for convenience, treat them together. It is urged that the court erred (1) in allowing the plaintiff to testify as to what was said by the agent in Boston when he bought his ticket; (2) in its instructions to the jury upon this point, and

Opinion of the Court.

with respect to the rules and regulations of the road relative to stop-over checks; (3) in not giving certain instructions asked for by the defendant, upon the question of stop-over checks; and (4) in not telling the jury, in effect, that it was their duty under all the evidence in the case, to bring in a verdict for the defendant.

The grounds upon which it is insisted that the evidence referred to was inadmissible are, that the ticket itself and the rules and regulations of the road, with respect to stop-over checks, constitute the contract between the passenger and the road and the only evidence of such contract, and that no representations made by a ticket seller could be received to vary or change the terms of such contract. This contention cannot be sustained, and is opposed to the authorities upon the subject. While it may be admitted, as a general rule, that the contract between the passenger and the railroad company is made up of the ticket which he purchases, and the rules and regulations of the road, yet it does not follow that parol evidence of what was said between the passenger and the ticket seller from whom he purchased his ticket, at the time of such purchase, is inadmissible, as going to make up the contract of carriage and forming a part of it. In the first place, passengers on railroad trains are not presumed to know the rules and regulations which are made for the guidance of the conductors and other employés of railroad companies, as to the internal affairs of the company, nor are they required to know them. Hufford v. Grand Rapids Railroad, 64 Michigan, 631. In this case there is no evidence, as already stated, that notice or knowledge of the existence of the rules of the defendant company, or what they were, with respect to stop-over privileges, was brought home to the plaintiff at the time he purchased his ticket or at any time thereafter. There was nothing on the face of the ticket to show that a stop-over check was required of the passenger as a condition precedent to his resuming his journey from Olean to Salamanca, after stopping off at the former place. It is shown by the evidence, that Olean was a station at which stop-over privileges were allowed. Under such circumstances, it was entirely proper for the passenger to make

Opinion of the Court.

inquiries of the ticket agent and to rely upon what the latter told him with respect to his stopping over at Olean. Hufford v. Grand Rapids Railroad, supra; Palmer v. Railroad, 3 So. Car. 580; Burnham v. Grand Trunk Railway Co., 63 Maine, 298; Murdock v. Boston & Albany Railroad, 137 Mass. 293; Arnold v. Pennsylvania Railroad, 115 Penn. St. 135.

Upon this question, and also with respect to the action of the first conductor and the regulations of the road relative to stop-over privileges, the court gave to the jury the following instructions: "That if the plaintiff's testimony was true in regard to what took place between himself and the ticket agent in Boston, and afterwards with the first conductor on the defendant's train, and if the plaintiff, when he bought his ticket in Boston, informed the ticket agent of his wish to stop off at the Olean station, and was then told by the ticket agent that he would have to speak to the conductor about that, and between Binghamton and Olean the plaintiff informed the conductor that he wished to stop over at Olean and the conductor, instead of giving the plaintiff a stop-over ticket, punched the plaintiff's ticket and told him that was sufficient to give him the right to stop over at Olean and afterwards to use the punched ticket between Olean and Salamanca, then, whatever the rules and regulations of the road were, the plaintiff was rightfully a passenger on the train at the time of his expulsion, and the conductor had no right to put him off for not paying his fare, and the company was liable for the act of the conductor; that if, on the other hand, the plaintiff did not notify the conductor of his wish to stop over at Olean and received no such assurance from the conductor or from the ticket agent as he has testified, then the punched ticket gave him no right to ride as a passenger on the train between Olean and Salamanca without paying his fare, and if he refused to pay his fare when demanded the conductor was justified in putting him off, and his offer to pay his fare after the train was stopped was too late, and did not give him the right to ride on the train, and the conductor was justified in expelling him, notwithstanding the offer."

We think these instructions perfectly correct and that, upon