the company will be liable for an unjustifiable assault by a gate-keeper on a passenger who has purchased a ticket.26 A regulation, however, requiring passengers to exhibit their tickets to a gate-keeper, and have them punched before entering the train, will not be considered reasonable if it subjects the passenger to unnecessary inconvenience or annoyance when the passenger is himself in no manner at fault. And if a passenger presents a ticket to the gate-keeper, which, owing to no fault of his own, does not purport on its face to be a ticket entitling him to ride upon the train he is about to take, and he is consequently refused admittance through the gate, a regulation that, in such cases, the passenger must refer the ticket to the ticket agent for his indorsement as to its validity, is unreasonable where it is shown that the gate-keeper opens the gate only a few moments before the train leaves the station, and that the ticket agent, in order to pass upon its validity, might find it necessary to examine corresponding coupons to several hundred tickets.27 Sec. 1033. (§ 571.) Same subject-Requiring higher fare when paid on train-Reasonable facilities for procuring ticket must be furnished. So it is well settled that a regulation or by-law of the carrier is not unreasonable which provides that when such tickets are not procured before the commencement of the journey, and the carrier is therefore put to the inconvenience of collecting from the passenger his fare during its progress, the price of the carriage shall be more than would have been charged for the ticket, and that upon the refusal of the passenger to pay the higher fare, not extortionate in amount,28 he shall be ejected. .And if adopted in good faith, ably necessary to that end. If in no such case it may use force, then the right to enforce the rules and prevent their violation is but a barren right." 26. Railway Co. v. Cooper, 6 Ind. App. 202, 33 N. E. Rep. 219. 27. Railway Co. v. O'Conner, 76 Md. 207, 24 Atl. 449, 16 L. R. A. 449, 35 Ann. St. Rep. 422. 28. White v. Railway Co., 26 W. Va. 800; Railway Co. v. Beckett, 11 Ind. App. 547, 39 N. E. Rep. 429. A rule of the carrier which requires that, where cash fare is paid, an extra amount shall be and with a view to facilitate the business of the carrier, there can be certainly nothing unreasonable or unjust in such rules, especially in the case of railway carriers.29 But as a condition precedent to the existence of this right of expulsion for the refusal to procure a ticket or to pay the higher fare, an opportunity, at least reasonable,30 and such as collected above the regular fare is not valid when the cash fare, together with the extra amount, exceeds the maximum rate allowed by law. Railroad Co. v. Dickerson, 4 Kan. App. 345, 45 Pac. Rep. 975; Fulmer v. Railway Co., 67 S. Car. 262, 45 S. E. Rep. 196; Zagelmeyer v. Railroad Co., 102 Mich. 214, 60 N. W. Rep. 436, 47 Am. St. Rep. 514. 29. Stephen v. Smith, 29 Vt. 160; Chicago, etc. R. R. v. Roberts, 40 Ill. 503; State v. Goold, 53 Me. 279; Indianapolis, etc. R. R. v. Rinard, 46 Ind. 293; Hilliard v. Goold, 34 N. H. 230; Pullman, etc. Co. v. Reed, 75 Ill. 125, Ill. Central R. R. v. Nelson, 59 id. 110; Toledo, etc. R. R. v. Patterson, 65 id. 304; Moore v. The Railroad, 4 Gray, 465; Chicago, etc. R'y Co. v. Herring, 57 Ill. 59; Reese v. Pennsylvania Co., 131 Pa. St. 422; Crocker v. Railroad Co., 24 Conn. 249; Swan v. Railroad Co., 132 Mass. 116; State v. Chovin, 7 Iowa, 204; Du Laurans v. Railroad Co., 15 Minn. 49; State v. Hungerford, 39 Minn. 6; Chicago, etc. R. Co. v. Parks, 18 Ill. 460; Railroad Co. v. Skillman, 39 Ohio St. 457; Forsee v. Railroad Co., 63 Miss. 67; Wilsey v. Railroad Co., 83 Ky. 511; Bland v. Railroad Co., 55 Cal. 570; Hoffbauer r. Railroad Co., 52 Iowa, 342; McGowen v. Railroad Co., 41 La. Ann. 732; Railroad Co. v. As more, 88 Ga. 529, 15 S. E. Rep. 13, 16 L. R. A. 53; Railroad Co. v. Bauer, 66 Ill. App. 124; Railroad Co. v. Quisenberry, 48 Ill. App. 338; Railroad Co. v. Mays, 4 Ind. App. 413, 30 N. E. Rep. 1106; Sage v. Railroad Co., 134 Ind. 100, 33 N. E. Rep. 771; Snellbaker v. Railroad Co., 94 Ky. 597, 23 S. W. Rep. 509; Cross v. Railway Co., 56 Mo. App. 664. It is immaterial whether other persons or the same person at different times have been allowed to ride on the train for ticket fare paid on the train. A violation of the rules by other conductors, or at other times by the same conductor, can give no rights to a passenger who has not procured his ticket and is asked to pay a higher fare on the train in accordance with the regulations of the company. So it is also immaterial in an action for alleged wrongful ejection that plaintiff offered his fare in good faith, believing it to be the correct amount, for his belief could not affect the contract between the carrier and himself. Sage r. Railroad Co., 134 Ind. 100, 33 N. E. Rep. 771. 30. Ammons v. Railway Co., 138 N. Car. 555, 51 S. E. Rep. 127, citing Hutch. on Carr.; s. c. 52 S. E. Rep. 736; Rivers v. Railroad Co., 86 Miss. 571, 38 So. Rep. 508; Mills . Railway Co., 94 Tex. 242, 59 S. W. Rep. 874, 55 L. R. A. 497, reversing (Tex. Civ. App.) 57 S. W. Rep. 291. the statute requires where a statute exists,31 must have been afforded by the carrier to the passenger, not himself in fault,32 It cannot justly be said that it is reasonable to require the passenger to pay more than regular rates on the train even though a process be created by which he nay at some future time get back the excess, unless the passenger has first had an opportunity to purchase a ticket at the station from which he starts. Phettiplace v. Railroad Co., 84 Wis. 412, 54 N. W. Rep. 1092, 20 L. R. A. 483. A railroad company is not bound to keep a ticket office open each and every minute up to the time it may lawfully close the same, and, on the other hand, a person is not obliged to call again and again at the office to procure a ticket. Central R. & B. Co. v. Strickland, 90 Ga. 562, 16 S. E. Rep. 352. This reasonable opportunity includes a reasonably convenient place, open and attended by a proper agent, for a reasonable time previous to the departure of the train, to enable the passenger to procure his ticket and enter the train. State v. Hungerford, 39 Minn. 6. What is reasonable depends, in this as in other cases, upon the circumstances of each particular case, as upon the size of the station, the number of trains stopping at it, the amount of business done there and the number of passengers who usually apply for tickets. Thus, at small stations where there is but one agent, whose duties require him to be out on the platform when the train arrives, a railroad company is not bound to keep its ticket -office open and attended to the last moment before the departure of the train. Everett v. Railway Co., 69 Iowa, 15. See also, Chicago, etc. R'y Co. v. Brisbane, 24 Ill. App. 463. 31. The subject is regulated by statute in some states. See Railroad Co. v. Hogue, 50 Kan. 40, 31 Pac. Rep. 698; Railway Co. v. Gist, 31 Tex. Civ. App. 662, 73 S. W. Rep. 857; Railroad Co. v. Lister, 6 Tex. Ct. R. 58, 72 S. W. Rep. 107. 32. Phillips v. Railway Co., 114 Ga. 284, 40 S. E. Rep. 268; Railroad Co. r. Mays, 4 Ind. App. 413, 30 N. E. Rep. 1106; Railway Co. v. Wright, 18 Ind. App. 125, 47 N. E. Rep. 491. Thus a passenger cannot complain if he does not get to the station till after the usual time for the departure of the train, and then finds the ticket office closed. Swan v. Railroad Co., 132 Mass. 116; St. Louis, etc. R. Co. v. South, 43 Ill. 176; Railroad Co. v. Bauer, 66 Ill. App. 124; Wicks v. Railroad Co., 15 Ky. L. R. 605. But the rule cannot apply where the carrier has wrongfully refused to sell a ticket. Indianapolis, etc. R'y Co. v. Rinard, 46 Ind. 293. A passenger who has entered the train without a ticket cannot require that the train shall wait at a station long enough to enable him to leave the train, buy a ticket and return. Easton v. Waters, (Tex. Civ. App.) 16 S. W. Rep. 540. to provide himself with the required ticket. If, therefore, no office be kept or opened at the proper time, nor other adequate facilities be provided for the purpose of supplying passengers with them, or if the office provided for the purpose be closed before the time fixed by law or by a rule of the carrier, and for either reason the passenger has been unable to obtain a ticket, the higher rate cannot be lawfully demanded.33 And if, without having afforded such proper facilities to the passenger, the carrier should exact from him the additional charge for carriage without a ticket, the former may sue for and recover the amount so paid above the established rate when a ticket is purchased; and if, upon his refusal to pay it, he be ejected, when he is ready and offers to pay his fare at such established rate, his expulsion will be illegal, and he may recover damages for the trespass.34 33. Porter v. The Railroad, 34 Barb. 353; De Laurans v. The Railroad, 15 Minn. 49; St. Louis, etc., R. R. v. Myrtle, 51 Ind. 566; Chicago, etc., R. R. v. Parks, 18 Ill. 460; St. Louis, etc., R. R. v. Dalby, 19 id. 353; Chicago, etc., R. R. v. Flagg, 43 Ill. 364; Nellis v. The Railroad, 30 N. Y. 505; Ill. Central R. R. v. Johnson, 67 Ill. 312; Same v. Cunningham, id. 316; Poole v. Railroad Co., 16 Oreg. 261; Missouri Pac. Ry. Co. v. McClanahan, 66 Tex. 530; Southern, etc., Ry. Co. v. Hinsdale, 38 Kan. 507; Brown v. Railroad Co., 38 Kan. 634; State v. Hungerford, 39 Minn. 6; Everett v. Railway Co., 69 Iowa, 15; White v. Railway Co., 26 W. Va. 800; Hall v. Railway Co., 25 S. C. 564; Phillips v. Railway Co., 114 Ga. 284, 40 S. E. Rep. 268; Cross v. Railway Co., 56 Mo. App. 664; Railroad Co. v. Dickerson, 4 Kan. App. 345, 45 Pac. Rep. 975. v. Rider, 79 Tex. 53, 15 S. W. The higher rate cannot lawfully be demanded if the agent informs a passenger that he is out of tickets and the passenger therefore boards the train without one. Ammons. Railway, 138 N. Car. 555, 51 S. E. Rep. 127. One who has been transported upon a train from one station to another, without producing a ticket or tendering the proper train fare, cannot claim the right to resume his journey on that train without making a proper settlement for the ride he has actually been permitted to take. Coyle v. Railroad Co., 112 Ga. 121, 37 S. E. Rep. 163. 34. Forsee v. Railroad Co., 63 Miss. 66; Jefferson, etc., R. R. v. Rogers, 28 Ind. 1; Chase v. The See, under Texas statute, Eddy Railroad, 26 N. Y. 523; Crocker v. The fact that the ejection in such cases occurs on Sunday does not affect the passenger's right to recover. While the right to ride upon the train has its foundation in the carrier's implied agreement to carry the passenger, the action is not for the breach of such contract, but for the violation of a personal right assured by the law.35 Sec. 1034. Same subject-Waiver of right to demand higher fare when paid on train.-When the passenger tenders in good faith on the train the ticket fare as full fare to his place of destination, and the conductor takes it and retains it, the conductor thereby waives the right to require the passenger to still pay the difference between the ticket and train fare, provided that, under the circumstances attending the tender, receipt, and retention of the money, the passenger is justified in the belief that it was accepted in full for his fare to the place of destination. Thus if the conductor receives and retains it, without demanding more, till the train has passed the place at which he must exercise or abandon the right to eject the passenger for non-payment, the latter would have the right to assume that the amount paid was satisfactory. But the passenger cannot be justified in believing that the conductor has waived the right to demand train fare if the conductor, after he has once accepted ticket fare, demands of the passenger within a reasonable time, or before the train has passed the place where he must exercise or abandon the right to eject the passenger, the difference between such fares; and if he refuses, on such demand, to pay the difference he may be ejected from the train.36 The Railway Co., 24 Conn. 249; St. Louis, etc., R. R. v. Myrtle, 51 Ind. 566; Porter v. The Railroad, 34 Barb. 353; Central R. & B. Co. v. Strickland, 90 Ga. 562, 16 S. E. Rep. 352; Phillips v. Railway Co., 114 Ga. 284, 40 S. E. Rep. 268; Railroad Co. v. Christison, 39 Ill. App. 495; Railroad Co. v. Graham, 3 Ind. App. 28, 29 N. E. Rep. 170, 50 Am. St. Rep. 256; Railway Co. v. Becketts, 11 Ind. App. 547, 39 N. E. Rep. 429; Railway Co. v. Cloes, 5 Ind. App. 444, 32 N. E. Rep. 588; Finch v. Railroad Co., 47 Minn. 36, 49 N. W. Rep. 329. 35. Chicago, etc., Railroad Co. v. Graham, 3 Ind. App. 28, 50 Am. St. Rep. 256, 29 N. E. Rep. 170. 36. Wardwell v. Railway Co., 46 |