Sec. 1035. Same subject-Carrier may abandon custom to sell tickets at reduced rates.-The mere fact that a railroad company has been accustomed, on a given day in each week, to sell round trip tickets between two stations along its line of road at a rate of fare below the maximum rate fixed by law does not entitle a person, who fails to procure such a ticket by reason of the fact that the agent is absent and the ticket office is closed, to be carried the round trip between such stations upon a tender to the conductor of the fare which the company has been in the past accustomed to charge. The closing of the ticket office is prima facie evidence that the company intends to abandon its custom which it has the right to do, and, in the absence of facts showing that such was not its intention, such custom cannot be relied on to constitute a contract of carriage at the reduced rate which the company was formerly in the habit of charging.37 Sec. 1036. (§ 572.) Same subject-Ticket must be produced when called for-Lost, mislaid or forgotten tickets.-A regulation by which passengers are required to show their tickets to the conductor of the train whenever called upon to do so, and making it the duty of such conductor to remove from the train all passengers who refuse to do so, or to pay their fare, has also been held to be reasonable and proper, being necessary to prevent impositions upon the carrier by making one ticket serve as a passport for more than one passenger. And it will not matter that the conductor may know that the passenger has paid for a ticket, or that he has already seen it, or that it has been shown to him more than once, or that the passenger may offer to prove that he has it. He must show it; otherwise the conductor will be justified in expelling him in obedience to the regulation.38 And when a regulation Minn. 514, 49 N. W. Rep. 206, 24 Am. St. Rep. 246, 13 L. R. A. 596; Railway Co. v. Joplin, 21 Ky. L. R. 1380, 55 S. W. Rep. 206. 37. Johnson v. Railroad Co., 108 Ga. 496, 34 S. E. Rep. 127, 46 L. 38. Hibbard v. The Railroad, 15 N. Y. 455; Beebe v. Ayres, 28 Barb. 275; Stephen v. Smith, 29 of this kind exists, if the passenger should be so unfortunate as to lose his ticket, he may be required to pay his fare again.39 But if it be lost or mislaid, and there is a reasonable ground. for expecting that it may be found during the journey, a reasonable time must be given to find it, but if he fails to find it. within a reasonable time and refuses to pay his fare he may be ejected.41 And so if he has been so forgetful as to leave his monthly or commutation ticket at home, although it may be well known to the conductor of the train that he is possessed of such a ticket, from his customary use of it in going and re Vt. 160; Chicago, etc., Ry. Co. v. Herring, 57 Ill. 59; Ripley v. The Railroad, 31 N. J. Law, 388; Nutter v. Railway Co., 25 Ky. L. R. 1700, 78 S. W. Rep. 470; White v. Railroad Co., 107 Mich. 681, 65 N. W. Rep. 521; Rogers v. Railroad Co., 57 N. J. Law, 703, 34 Atl. Rep. 11; Railroad Co. v. Scott (Tex. Civ. App.), 79 S. W. Rep. 642. 39. Standish v. The S. S. Co., 111 Mass. 512; Jerome v. Smith et al., 48 Vt. 230; Crawford v. Railroad Co., 26 Ohio St. 580; Atwater v. Railroad Co., 48 N. J. L. 55; International, etc., R. Co. v. Wilkes, 68 Tex. 617; Cresson v. Railroad Co., 11 Phila. 597; Cooper v. Railway Co., L. R. 4 Exch. Div. 88; Railway Co. v. Daniels, 90 Ill. App. 154; Railway Co. v. Joplin, 21 Ky. L. R. 1380, 55 S. W. Rep. 206; Price v. Railroad Co., 46 W. Va. 538, 33 S. E. Rep. 255, citing Hutch. on Carr. A ticket agent who tells a passenger who has lost his ticket that it will be all right and that he can ride without it, is not, when so speaking, acting within the apparent scope of his authority, and his statements will not be binding 40 on the carrier. Railway Co. v. Smith (Tex. Civ. App.), 84 S. W. Rep. 852. 40. Maples v. Railroad Co., 38 Conn. 557; International, etc., R. Co. v. Wilkes, 68 Tex. 617; Knowles v. Railroad Co., 102 N. C. 59. Where a passenger, who was subject to chronic drowsiness, fell asleep before his ticket had been called for and the conductor expelled him from the train, the passenger not waking until he was partially out of the car, it was held that the conductor should have received the ticket when proffered by the passenger as soon as he realized the situation. Ferguson v. Railroad Co., 98 Mich. 533; 57 N. W. Rep. 801. 41. Louisville, etc., R. Co. V. Maybin, 66 Miss. 83; Railway Co. v. Smith (Tex. Civ. App.), 84 S. W. Rep. 852. The time occupied by a passenger train in running from one station to another is sufficient to allow a passenger, using ordinary diligence, to find a lost ticket. Railroad Co. v. Willard, 31 Ill. App. 435. A passenger may be expelled on turning upon the road, his fare may be demanded, and he may be ejected if he refuses to pay it.42 Sec. 1037. Same subject-Rebate or train tickets given on payment of cash fare must be produced when called for.—If a rebate or train ticket is given on payment of a cash fare, it is the duty of the passenger to produce it when asked by the conductor for an inspection of it, or to explain to the conductor his inability to do so. But if the conductor does not ask for its production and insists on the payment of a second fare, and the passenger does not think of producing it, the company will be liable in damages if the passenger is ejected for the nonpayment of the second fare. If the conductor does ask for its production and the passenger refuses to comply with his reasonable request, the passenger may be compelled to pay a second fare or be ejected from the train.43 Sec. 1038. (§ 573.) Same subject-Right to require surrender of ticket. So a regulation that, when the ticket of the passenger is demanded in exchange for a check, it shall be surrendered by the passenger, is considered reasonable; and if the passenger refuse to surrender his ticket when thus de his failure to produce a ticket entitling him to ride or to pay his fare, and when he fails to produce a proper ticket the conductor cannot be required to hear evidence or investigate the bona fides of the passenger's excuse for its non-delivery, nor is he obliged to wait until the next station is reached and to telegraph to the selling agent in order to verify the correctness of the plaintiff's statement or to determine the character of the ticket sold. Harp v. Railway Co., 119 Ga. 927, 47 S. E. Rep. 206, 100 Am. St. Rep. 212. The conductor is not bound to search a passenger's pocket to find the ticket which the passenger in sists he has, but if he does undertake to search for it, he should do so in good faith. Louisville, etc., R. Co. v. Fleming, 14 Lea, 128. 42. Downs v. Railroad Co., 36 Conn. 287. Where a passenger has left his ticket at home he cannot insist on riding by depositing the amount of the usual fare with the conductor on condition that it shall be returned to him when he gets his ticket. Knowles v. Railroad Co., 102 N. C. 59. See also, Atwater v. Railroad Co., 48 N. J. L. 55. 43. Railway Co. v. Goben, 15 Ind. App. 123, 43 N. E. Rep. 890 (denying rehearing on, 42 N. E. Rep. 1116). manded, he may be removed from the train.44 But the passenger cannot be required to give up his ticket unless a check, or some other evidence of the fact that he has paid for his pas sage, be given to him in its stead.45 And if he has done so, and if the same conductor afterwards demands a ticket or fare of him again, and ejects him for a failure to produce either,46 or if another conductor of the company, taking the place of the one to whom he has given his ticket, and not informed of the fact, demand it again of him, and put him off after being told by the passenger of its delivery to the conductor previously in charge of the train, such expulsion will be unlawful, and he may sue and recover damages from the company.47 Sec. 1039. (§ 574.) Same subject.-While the second conductor in such a case acts in the performance of his duty, as between himself and the company, in putting off the passenger who cannot show his ticket, that will not excuse the wrongful act of the first conductor in taking from the passenger his ticket without giving him in return some evidence of his right to travel upon the train, and the company will be liable for compensatory but not for punitory damages. 48 And so where 44. Havens v. The Railroad, 28 Conn. 69; The Northern, etc., R. R. v. Page, 22 Barb. 130; White v. Railroad Co., 133 Ind. 480, 33 N. E. Rep. 273, citing Hutch. on Carr. The above rule is applicable to a regulation that commutation tickets be surrendered on the last trip. Rogers v. Railroad Co., 57 N. J. Law, 703, 34 Atl. Rep. 11. 45. State v. Thompson, 20 N. H. 250. 46. Indianapolis, etc., Ry. Co. v. Howerton, 127 Ind. 236. 47. Pittsburgh, etc., R. R. v. Hennigh, 39 Ind. 509; Palmer v. The Railroad, 3 Rich. S. C. (N. S.) 380; Railway Co. r. King, 88 Ga. 443, 14 S. E. Rep. 708. 48. Townsend . The Railroad, 56 N. Y. 295; Sloane v. Railway Co., 111 Cal. 668, 44 Pac. Rep. 320, 32 L. R. A. 193. So where a passenger who must change trains and is unable to secure a ticket at the station pays his fare on the train to the first conductor who neglects to give him a ticket, the railroad company will be liable if the conductor of the second train, with knowledge of that fact, ejects the passenger from his train. Whether the second conductor had knowledge of the payment of fare to the first conductor is a question of fact for the jury. Homiston v. Railroad Co., 22 N. J. Supp. 738, 3 Misc. Rep. 342. the passenger had paid for and had obtained, as he supposed, a ticket which entitled him to his passage to his destination and which he surrendered to the conductor without receiving. a check, but which, by a mistake of the company's agent from whom it was purchased, only entitled him, as the conductor asserted, to be carried to a point short of such destination, and after he had been carried beyond the place designated in the ticket, and before reaching that to which he had really contracted and paid to be carried, he was ejected because the ticket did not entitle him to be carried further, it was held that the conductor had performed his duty, and that as between him and the passenger the ticket, in accordance with the rule which will be hereafter noticed, was conclusive, but that the company was liable to him for a breach of its contract to carry occasioned by the mistake of its ticket agent.49 Sec. 1040. Same subject-Torn or mutilated tickets. "It is true that where the passenger has no ticket, or has a ticket so imperfect that it furnishes no sufficient evidence of being genuine, and the conductor has nothing to determine the passenger's rights from except his explanations, he is not bound to take the same as true unless his failure to have a ticket or a perfect ticket was due to the company's fault, it being plain that such a rule would enable persons to avoid paying their fares; but if the passenger has a ticket which in fact is genuine and entitles him to be carried, but is somewhat soiled or changed in its general appearance, it is the duty of the conductor to hear any explanation the passenger may offer to make, and consider said explanations in connection with said ticket for the purpose of determining the rights of the passenThus a railroad company was held liable in damages ger. '50 49. Frederick v. The Railroad, 37 Mich. 342. And see in support of these cases, Bennett 1. The Railroad, 5 Hun, 599; Downs v. The Railroad, 36 Conn. 287; Chicago, etc., R. R. v. Griffin, 68 Ill. 499; Pullman, etc., Co. v. Reed, 75 id. 125; Shelton v. The Railway, 29 Ohio St. 214. 50. Railroad Co. v. Conley, 6 Ind. App. 9, 32 N. E. Rep. 96. If a railroad chooses to place its check number upon a part of the ticket where it is liable to be |