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permissible. This regulation is not in itself unreasonable or needlessly inconvenient to the traveler, and its validity, upon general principles and on authority, would seem to be beyond question, since only by the ticket system can the company effectively protect itself from fraud of all sorts. A difficult situation, which has often come before the courts, is where the ticket office at the station where the passenger comes to take the train is wrongfully closed by neglect of the station agent. Under such circumstances, the great majority of the cases have held that, as the passenger has had no opportunity to obtain a ticket, he should not be ejected for refusal to pay the extra charge.98 There are, however, cases to the contrary, holding that when a passenger presents himself without a ticket, the obvious duty of the conductor, so far as he is concerned, is to enforce the regulation requiring the payment of the excess cash fare, unless he knows for a fact that the office was closed.99

59. Effect of agent's mistake.-Where the ticket agent gives a ticket not good for the transportation asked for, so that when this ticket is presented to the conductor the passenger cannot get the transportation which he expected, the company is in the wrong.1 But where the intending passenger makes a mistake in asking for a ticket so that the wrong ticket is given him, or his acceptance of the wrong

97 State v. Goold, 53 Me. 279.

98 Forsee v. Alabama Gt. So. Ry. Co., 63 Miss. 66, LEADING ILLUSTRATIVE CASES.

99 Monnier v. New York C. & H. R. R. R. Co., 175 N. Y. 281, 67 N. E. 569. 1 Jevons v. Union Pacific R. R. Co., 70 Kans. 491, 78 Pac. 817.

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ticket is palpably negligent, he is foreclosed.2 The abstract question whether the company or the passenger is in the wrong is usually decided properly without any noteworthy conflict of authority; but there is an irreconcilable division in the authorities as to the consequences of the company's being in the wrong. There are many states where it is held that if the company is in the wrong, the passenger may resist expulsion and recover damages. for personal injuries caused thereby. But in fully as many other states it is held that although the ticket agent was in the wrong, so that the company may be sued for his default, the passenger has in fact gained no right to travel, and the conductor commits no wrong by ejecting him. The writer favors this latter view, because he believes in the inherent necessity of the ticket system. With this policy it is reasonable to enforce in this case, as in all others, the regulation that only those may expect to be passed by the conductor who present a good ticket. The company, however, remains liable for the original wrong done the passenger, when the ticket agent failed to pass out the proper ticket.

60. Mistakes of the conductors.-Where the first of two conductors wrongfully punches the ticket or collects the ticket without giving a check, so that the conductor upon another train either refuses return passage or further transportation, the same situation again arises, and the same conflict of author

2 Rudy v. Rio Grande Western Ry. Co., 8 Utah 165, 30 Pac. 366.

3 Mace v. Southern Ry. Co., 151 N. C. 404, 66 S. E. 342.

4 Bradshaw v. So. Boston R. Co., 135 Mass. 407, LEADING ILLUSTRATIVE CASES.

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ity results. Some cases hold that the second conductor expels such a passenger at his peril, on the ground that the ticket which he is presenting is the one which the previous conductor has assured him would be all right. Others hold, however, that the second conductor may eject the passenger, as he has not a proper ticket, and the passenger must seek his redress from the company for the wrong done him by the first conductor. It should be said that if the whole mistake is made by the conductor himself, the expulsion will be wrongful. Thus where a conductor collects a ticket and afterwards wrongfully expels a passenger, the conductor is responsible for the injury caused thereby." And where the passenger actually has a good ticket which the conductor-however honestly mistaken-refuses to honor, it would seem clear that the passenger may resist expulsion.8

5 Philadelphia W. & B. R. R. Co. v. Rice, 64 Md. 63, 21 Atl. 97, LEADING ILLUSTRATIVE CASES.

6 Townsend v. New York C. & H. R. R. R. Co., 56 N. Y. 295.

7 Arnold v. Rhode Island Co., 28 R. I. 118, 66 Atl. 60.

8 Northern Central R. R. Co. v. O'Connor, 76 Md. 207, 24 Atl. 449.

CHAPTER VII.

COURSE OF THE UNDERTAKING.

61. Conduct of the undertaking. In the first place those who have undertaken a public service have always been strictly held to use every effort practicable to carry it through as promptly as may be. The duty is performed if all that could be asked of the proprietors has been done. There are, therefore, many unexpected obstacles which will excuse delay in performing services. But even if the delay is excused, the duty remains to complete performance, if that can be done. Indeed, quite extraordinary steps are often required by the law for the protection of the patron at all times. This duty to take affirmative steps to protect the interests confided to them is one of the obligations which differentiates public service from private employment. And, as will be seen, one extraordinary result of this affirmative obligation to furnish protection is that the proprietors are held absolutely liable for any attack which their own servants may make upon those in their charge. Moreover, by the general rule public servants are held strictly accountable for any departure from the service undertaken. What they have assumed to do for their patrons they must do in the very way that they have undertaken to do it. If they fail to perform in the way they have undertaken they are held absolutely liable for what hap

pens. However, if extraordinary events occur after performance has been begun any necessary departure from the designated course will be excused. But, on the other hand, every effort must be made to minimize the loss involved.

62. Delay in performing service. Sometimes the delay is so obvious as to speak for itself. Thus the consumption unexplained of thirty days in the carriage of goods usually taking but three days is certainly clearly negligent." But the carrier does not insure against delay in the delivery of goods. If he uses all reasonable effort to get them through that is all the law requires.10 What is reasonable time for performing transportation depends upon the mode of conveyance, the distance to be traversed, the nature of the goods, the season of the year, and the facilities available for transportation. The requirement of reasonable dispatch in forwarding goods does not necessarily require performance at the earliest possible moment, not by the next train certainly, nor even necessarily on the same day." Even in the case of a telegram its delivery in its regular order and within an hour from the time it was received at the office in the city of delivery has been held to be with reasonable dispatch.12

63. Loss concurrent with delay. Even if the delay is one for which the carrier is clearly to blame, it does not necessarily follow that there is liability for every loss in connection with it. Of course, the

9 Illinois Central Ry. Co. v. Cobb, C. & Co., 64 Ill. 128.

10 Delaney v. United States Express Co., 74 S. E. 512 (W. Va.). 11 Pennsylvania Co. v. Clark, 2 Ind. App. 146, 27 N. E. 586.

12 Julian v. Western Union Telegraph Co., 98 Ind. 327.