BROWN v. KANSAS CITY, FT. S. & G. R. Co. (Supreme Court of Kansas. February 11, 1888.) 1. CARRIERS-OF PASSENGERS-ON FREIGHT TRAINS-REGULATIONS AS TO TICKETS. Public carriers of passengers have the right to make such reasonable rules and regulations as will tend to the better protection of their patrons and their own general convenience; and a rule that requires passengers to procure tickets before taking passage upon freight trains is a reasonable regulation. 2. SAME-DUTY OF CARRIER. Where such a regulation is adopted by a railroad company, such rule imposes upon the company the necessity of having its ticket offices open a sufficient length of time before the departure of trains to enable passengers to procure tickets.1 3. SAME. When such a regulation is adopted by a railroad company, and a passenger desiring to take passage upon its freight train endeavors to procure a ticket, but, by reason of the ticket office being closed, he is unable to do so, he has the right to travel on such train by paying, or offering to pay, the usual fare.2 4. SAME-EXPULSION OF PASSENGER-ACTION FOR DAMAGes-Evidence. In an action to recover damages for having been put off a train, where the railroad company claims that it is not liable, by reason of the failure of the plaintiff to procure a ticket, in conformity with its rules, which require passengers to procure tickets before entering freight trains; and the plaintiff, for the purpose of showing that the defendant's freight trains carried passengers for hire, and that no rule was enforced by the defendant requiring the purchase of tickets before entering its trains, offered to prove by four witnesses that said witnesses had on a number of occasions taken passage on defendant's freight trains without first procuring tickets, and that they paid their fares to the conductors of said trains; which testimony, on the objection of the defendant, was excluded: held, that said testimony was competent, and its exclusion error. HORTON, C. J., dissenting. (Syllabus by Clogston, C.) Commissioners' decision. Error to district court, Johnson county; J. P. HINDMAN, Judge. This was an action to recover damages for the unlawful expulsion of the plaintiff from a freight train on defendant's railway, on the afternoon of the 6th day of November, 1885. The plaintiff, being at Kansas City, and desiring to return to his home at Lenexa, a station on the defendant's road, in Johnson county, Kansas, for the purpose of procuring a ticket for transportation to Lenexa, went to the Union depot at Kansas City at about 1:30 P. M. The time for the starting of the train from the yards, about half a mile from the Union depot, was at 2 o'clock. On arriving at the Union depot plaintiff found the ticket oflice closed, and was for that reason unable to procure a ticket. He went down to the yard, and boarded a freight train which was about ready to start. He received no notice not to board the train, and had no knowledge of any regulation of the company requiring passengers to procure tickets before entering freight trains. The company had a regulation which required passengers to purchase tickets before taking passage upon any of its freight trains. The train started from the yard about five minutes after the plaintiff reached the train, and, when the train was about half way between Kansas City and Rosedale, (the first station out from Kansas City,) the conductor came round and demanded a ticket of the plaintiff, who informed him that he had none, and also the reasons why he did not procure one, and then offered to pay his fare from Kansas City to Lenexa, which the conductor refused to accept, and informed plaintiff that he could not ride on the train without procuring a ticket. Before reaching Rosedale, the plaintiff climbed onto the top of the cars, and went forward to the front end of the train, in order that he might have more time in which to reach the depot and procure a ticket. He got off and started for the depot, but the train immediately pulled out, and, as 1 See Arnold v. Railroad Co., (Pa.) 8 Atl. Rep. 213, and note. See Railway Co. v. Hinsdale, ante, 937. it passed, the plaintiff again boarded the train. Shortly afterwards the conductor called upon him for his ticket, and was again informed that plaintiff had no ticket, that he had no opportunity or time at Rosedale to purchase one, and again offered to pay his fare, which was refused. When the train reached Merriam, plaintiff went to the depot and purchased a ticket from Merriam to Lenexa, and as he started for the train he met the conductor at the front end of the train, who inquired if he had procured a ticket. Plaintiff informed him that he had, from there to Lenexa, and also that he would pay his fare from Kansas City to the station where they then were. The conductor said that he could not ride until he procured a ticket back from there to Kansas City, and, without giving plaintiff time to purchase a ticket back to Kansas City, immediately signaled the engineer to go ahead, and, as the train moved off, plaintiff boarded one of the flat cars of the train. The conductor caused the train to stop and required the plaintiff to get off, which he did. No other train was due at that station going in the direction of Lenexa until after dark that night. Plaintiff was in poor health at the time, and had been advised not to expose himself after night; and for that reason he walked home,——a distance of five miles,-and in consequence of which plaintiff was afterwards laid up for some two weeks. At the conclusion of the evidence on the part of the plaintiff, the defendant filed a demurrer thereto, for the reason that the evidence did not show a cause of action in favor of the plaintiff and against the defendant; which demurrer was by the court sustained, and judgment rendered against the plaintiff for costs. To reverse this ruling and judgment plaintiff brings the case here. A. Smith Devenney, for plaintiff in error. Blair & Perry and Wallace Pratt, for defendant in error. CLOGSTON, C., (after stating the facts as above.) The first and principal or material question in this inquiry is, did the relation of passenger and carrier exist between the parties? for, if that relation did exist, then the learned court committed error in sustaining the demurrer to the plaintiff's evidence. Before a person can claim the rights of a passenger in a public conveyance, he must show that all the reasonable regulations and restrictions known to him, which the carrier has thrown around its business for the safety of the passenger or the convenience of the carrier, have been complied with, and, if not complied with, then a good reason must be shown for a non-compliance, and the reason for this non-compliance must be because of some act, omission, or fault of the carrier; for it is well established that the carrier has a right to make such reasonable rules and regulations as will tend to the better protection of its patrons, and to the greater convenience of itself; and the rule that requires passengers to procure tickets before taking passage upon freight trains is a reasonable regulation. Railway Co. v. Rinard, 46 Ind. 293; Railway Co. v. Myrtle, 51 Ind. 566; Railroad Co. v. Johnson, 67 Ill. 312; Railway Co. v. Kessler, 18 Kan. 528. In this case there is no dispute but that the defendant had adopted a rule that required passengers to procure tickets before taking passage upon freight trains, and that the plaintiff did not procure a ticket before taking passage. The plaintiff, to avoid this rule, showed that it was not complied with on his part-First, because he had no knowledge of the existence of such a rule until informed by the conductor, when half way between Kansas City and Rosedale; second, that he attempted to procure a ticket at the Union depot ticket office in Kansas City, and that such ticket office was the place where he had been in the habit of purchasing tickets over the defendant's line, and the only office or place that he knew of where tickets could be procured. This evidence was not disputed; on the contrary, it was admitted by the demurrer. Where a railroad company desires to enforce such a regulation it must afford reasonable facilities to passengers to comply therewith. The plaintiff showed in addition to this that, when he reached the yard where the train was, he entered the caboose or way car, and no objection was made to his entering, and no one informed him of the rules of the company. Then, by what fault of the plaintiff can it be said that he disregarded the rule of the defendant? But, on the other hand, cannot it be said that, on account of the failure of the defendant in not keeping its ticket office open, he was prevented from complying with the rules? Under such circumstances as these, plaintiff was not a trespasser, but was on the train rightfully as a passenger, and defendant could accept his fare or carry him free. This being true, was there afterwards opportunity given the plaintiff by the company to purchase a ticket or comply with the rules? At Rosedale he made an effort to do so, but failed, and this failure was owing to the fact that the train did not stop long enough at that station for him to procure a ticket. At Merriam he succeeded in purchasing a ticket from there to Lenexa, his destination, and because he did not purchase a ticket from Merriam to Kansas City he was expelled from the train. There is no evidence that such a ticket would have been received; but, even if it would, still no information had been given the plaintiff in time to procure one, and the only information he had on the subject was when he presented his ticket from there to Lenexa, and offered to pay his fare back to Kansas City, at which time the conductor asked him "why he did not purchase a ticket back to Kansas City." This was just as the train was again starting, and there was then no chance to return to the office and purchase such a ticket. This not being the fault of the plaintiff, he would still have the right to his passage on that train, and all the rights of a passenger. He was willing to comply with all the regulations that he knew of, if an opportunity was given him to do so. This was all that it was necessary for him to do to place himself in the relation of passenger to the defendant. Defendant insists that as plaintiff was informed of this rule at and before he reached Rosedale, and after being so informed he left the train, that, even if he had been a passenger up to that time, by leaving the train he lost his right to re-enter again without a ticket. We think this claim is not well taken. He left the car, it is true, and re-entered again, with knowledge of the rules; but he left it with the intention of complying with this regulation. It would seem, too, to be a strange doctrine that because of an honest attempt to comply with defendant's regulations, which heretofore he was ignorant of, he would forfeit all right he then possessed to be treated as a passenger; in fact, had he not made an attempt to comply with the rules, the conductor would have been justified in stopping the train, and treating him as a trespasser, by expelling him therefrom. Then, how can the defendant be heard to say that he had forfeited his right to be carried on that train? This question has recently been settled in other states. In Railroad Co. v. Myrtle, 51 Ind. 566, it was said: "But such a regulation imposed upon the company the necessity of having the ticket office open a sufficient length of time before the departure of trains to enable passengers to procure tickets. Again, the appellant tried to procure a ticket, but could not do so in consequence of the absence of the agent. He had a right to travel on the train in question without a ticket, by paying the ordinary fare, which he offered to do." In that case the conductor of the train informed the appellant before he entered the train that he could only ride thereon by first procuring a ticket, and he was put off the train before it left the yard. Also, see, Railroad Co. v. Sutton, 53 Ill. 399; Railroad Co. v. Johnson, 67 Ill. 312; Lucas v. Railroad Co., 33 Wis. 41; Chase v. Railroad Co., 26 N. Y. 523; Stoner v. Pennsylvania Co., 98 Ind. 388; Railway Co. v. Kessler, 18 Kan. 528. Again, the plaintiff insists that he did not know of the rule requiring a procurement of a ticket before taking passage on the train, and that, not having been so informed, he was rightfully thereon, and was entitled to remain until an opportunity to comply was furnished. A passenger is not supposed to know of such a rule. He may know that passengers are carried, and not know under what conditions or circumstances, and, until informed, he is not a trespasser. Lucas v. Railway Co., 33 Wis. 54; Dunn v. Railway Co., 58 Me. 187; Railroad Co. v. Plunkett, 25 Kan. 188. Plaintiff also contends that the court erred in excluding the evidence of some four witnesses tending to show that this rule of the company was not enforced on its freight trains. This evidence was competent for two purposes: First, to show that freight trains on defendant's road carried passengers for hire; second, to show that no rule was in force requiring the purchase of tickets before entering the train. True, this evidence might not be sufficient to establish the custom when the evidence was given; but, if not, then it was the province of the court to so instruct the jury, and inform them what evidence it would require to show such custom and disregard of the rules in question. Stoner v. Pennsylvania Co., 98 Pa. 388; Lucas v. Railway Co., 33 Wis. 54; Smith v. Miller, 52 N. Y. 549; Railroad Co. v. Wheeler, 35 Kan. 185, 10 Pac. Rep. 461. It is recommended that the judgment of the court below be reversed, and the cause remanded for further proceedings in accordance with the views herein expressed. PER CURIAM. It is so ordered. VALENTINE and JOHNSTON, JJ., concurring. HORTON, C. J., dissenting to the declaration of law as applied to this case. PILCHER v. ATCHISON, T. & S. F. R. Co. (Supreme Court of Kansas. February 11, 1888.) 1. HOMESTEAD-CONVEYANCE OF RIght of WAY-CONSENT OF WIFE. The husband cannot, without the consent of his wife, grant or alienate the right of way of a railroad across land owned by him and occupied as a homestead by his family. 2. SAME-PROOF OF CONSENT. The constitution of the state does not in express terms require the alienation of the homestead by the joint consent of husband and wife, when that relation exists, to be evidenced by a writing; and hence the consent of the wife to the grant, or alienation of an easement in their homestead for the right of way of a railroad, may be shown by such evidence as is deemed necessary to establish any other material fact. (Syllabus by Simpson, C.) Commissioners' decision. Error to district court, Johnson county; SPERRY BAKER, Judge pro tem. This was an action of ejectment brought by Pilcher against the railroad company. A trial was had at the March term, 1884, of the Johnson county district court, resulting in a judgment for defendant, which was reversed by this court. 34 Kan. 46, 7 Pac. Rep. 613. Another trial was had at the March term, 1886. of the district court aforesaid, and judgment for costs rendered against plaintiff. The trial was by court, Hon. SPERRY BAKER, judge pro tem., presiding. The court made the following special findings of fact: "(1) That both plaintiff and defendant claim title from Thomas Pilcher, now deceased. (2) That in his life-time the said Thomas Pilcher was the husband of this plaintiff. (3) That from the year 1868 up to the time of his death, in 1879, Thomas Pilcher and the plaintiff resided, as husband and wife, upon the quarter section of land, a part of which constitutes the premises in controversy, with their family, and made it their home during all of this time. That said quarter section of land is not a part of any incorporated city. (4) That from the time of the death of her husband up to the present time the plaintiff has v.16p.no.11-60 continually resided and made her home upon said quarter section, being the S. E. of sec. 35, town 13, range 23, in Johnson county, Kansas. (5) That the plaintiff has a life-estate in said quarter section of land, with power of sale, which she received by the will of her late husband, Thomas Pilcher. (6) That in 1871 and 1872 the St. Louis, Lawrence & Denver R. R. Co. built a railroad across said premises, under some kind of an agreement with Thomas Pilcher, the then owner thereof. That by due process of law the Pleasant Hill & De Soto Railroad Co. succeeded to the right of the St. Louis, Lawrence & Denver R. R. Co. (7) That the St. Louis, Lawrence, & Denver Railroad Company built their road upon the land in controvery under contract for the right of way made with Thomas Pilcher in his life-time, and without any notice from plaintiff of any objection upon her part. The terms and conditions of the contract the court cannot from the evidence find. (8) That the railroad over the premises in controversy was, when built, and for a number of years thereafter, used as a line of railroad running from Cedar Junction, Kansas, to Pleasant Hill, Mo., and as such was used in running regular trains between those points for a number of years. But at present the premises in controversy are not used for running trains over, except as a switch track to transfer cars from the Kansas City, Fort Scott & Gulf R. R. to the Southern Kansas R. R.; and the said line of railroad from Olathe to Cedar Junction has been abandoned, and is not used for the running of trains thereon at all. (9) That plaintiff and defendant lived on the premises during the building of the St. Louis, Lawrence & Denver Railroad, in full view of the same. (10) That plaintiff has never had any conversation, at any time, with any one representing the railroad company in reference to the passage of the railroad over their land. But that she did frequently, while the railroad was building, and since, protest against it to members of her family; but she never notified any of the agents or employes or contractors of the railroad company, while the road was being constructed, that she objected to the construction of the road; and that she was living upon said quarter of land about one hundred yards from the nearest point of the line of railroad during all the time the railroad was in process of construction through said quarter section. And in going from her residence to the city of Olathe she did pass over the line of said road in process of construction. (11) That during the life-time of Thomas Pilcher, he and his wife, this plaintiff, joined in a warranty deed to their son R. A. A. Pilcher, conveying to him a portion of said quarter section of land, and in said deed referred to the said company's right of way as a boundary; and also another deed conveying to their son J. R. F. Pilcher another portion of said quarter section of land, over which said road runs, and referring to said railroad as a boundary. 66 "The court finds that the plaintiff is not entitled to recover in this action, and the court finds for the defendant. To each and all of the findings of fact and conclusions of law the plaintiff at the time duly excepted. Parker & Seaton, for plaintiff in error. F. R. Ogg, for defendant in error. Geo. R. Peck, A. A. Hurd, and SIMPSON, C., (after stating the facts as above.) The plaintiff in error has continuously resided upon the land that is the subject-matter of this controversy since the year 1868. Her husband, in whom the title vested, died in 1879, leaving, by will, the plaintiff in error at least a life-estate in this land. She has and does claim it as her homestead, and further claims that, by force of her homestead rights, the defendant railway company never acquired any easement therein, and she brings her action in ejectment to recover that portion occupied and used by the railway company. Counsel for defendant in error contend that, as the plaintiff in error elected to take under the will, that her |