support the contention of the plaintiff in | not scheduled to stop at the station for error, but they, as does the reasoning of the which he holds a ticket, by reason of misplaintiff in error, depend upon what seems | information received from the agent from to be an evident fallacy. They assume as a whom he had purchased his ticket, may be premise that the act of the conductor in lawfully ejected at a regular station preputting the plaintiff off was rightful, and ceding his destination, where he has been therefore the company cannot be held guilty notified by the conductor that the train does of a tort. But the act of the conductor is not stop at the point for which he holds a immaterial except as it affects the liability ticket, and requested that he leave the train of the company. The suit is not against at a stopping point short of his destination, him, but against the company. As between but has refused to comply with the request. the conductor and the company, the latter Runyon v. Pennsylvania R. Co. 74 N. J. L. may have no right to complain of him. He 225, 68 Atl. 107. The court stated that the violated no duty he owed to the company. railroad company was under no obligation He simply obeyed his instructions as re- to stop its train at the passenger's destinaceived from the company, applicable to such tion, notwithstanding the representation a case. Therefore, it may well be said that made to him by the ticket agent, and it was as between him and the company, the con- the duty of such person when informed that duct of the conductor was rightful. But as the train would not stop at that station between the company and the passenger, the either to tender such fare as would entitle question is wholly a different one. Where a him to ride to some stopping point beyond, company, by the act of a proper agent, or else to comply with the request of the causes a passenger, as in this case, to take conductor, and change cars at a stopping the wrong train,-one that does not stop at point short of his destination; that in the his station,-it must be held to have con- operation of a railroad the safety of those templated that, under the instruction given traveling upon it requires that the trains its conductor, the passenger would be put running over it shall be moved according to off the train as soon as the error should be a prearranged schedule, and this safeguard discovered by the conductor, unless he would be practically destroyed if a conshould, as demanded, pay additional fare ductor was bound to stop his train at a and be carried beyond his station. The act station not a scheduled stopping point, of the first agent of the company, misdirect- whenever a passenger was wrongfully ining the passenger, is the wrongful act for formed by a ticket agent that the train which the company becomes liable in tort, would take him to that station. The court and the act of the conductor in ejecting him added that the view expressed in the deciis a consequence of the first wrongful act,- sions of some jurisdictions, that misinformais the proximate cause of the passenger tion as to the stopping of a train at a parbeing ejected; and as against the passenger, ticular station, given by a ticket agent to the act of the conductor in ejecting him, an inquiring passenger, and acted upon by being the act of the company, is wrongful. the latter, constitutes a contract between the The fallacy, as before stated, arises out of railroad company and the passenger, had not the mistaken assumption that the act of the been accepted by the courts of New Jersey. conductor is rightful as against the pas- The court distinguished this case from Mcsenger. This can in no instance be the case Donald v. Central R. Co. 72 N. J. L. 280, 2 where the company is responsible for the L.R.A. (N.S.) 505, 111 Am. St. Rep. 672, 62 mistake of the passenger in taking the Atl. 405, 19 Am. Neg. Rep. 378, stating that wrong train. All the cases cited in support it lacked a vital element which was present of the contention of the plaintiff in error, in the McDonald Case; namely, the furnishthat in any way do so, are based on the ing of a time-table by the railroad comfallacy that the conductor had the right to pany's agent to the passenger, showing that eject the passenger, when, as a matter of the train concerning which he made inquiry law, the real question is whether the act of was scheduled to stop at the station to the company, done by its agent, is rightful which he purchased his ticket. as against the ejected party. The question may be simplified by eliminating the fact of agency in each instance; that is, by supposing that the common carrier in each instance acts for himself or itself. Here no mind would doubt but that the carrier, having instructed the passengers to take one of his trains, with knowledge of his destination, would be a wrongdoer, should he, on discovering his own mistake, eject him from the train, on the ground that he had taken the wrong train. But the intervention of an agent, by whom the act is done in each instance, does not change the case. For each act of the agent, done in the scope of his agency, must be imputed to the principal,is, in law, the act of the principal."

On the other hand, it has been held that a passenger who has taken a train which is

And in Lake Shore & M. S. R. Co. v. Pierce, 47 Mich. 277, 11 N. W. 157, a judgment predicated on wrongful expulsion was reversed. The court stated that having been informed by the ticket agent that such train stopped at his destination, if the passenger was not otherwise in fault in starting on the train, it was difficult to find any reason why the company should not carry him in some way to the place of his destination, as it had agreed to do; and he had in such case a right of action for such damages as a failure to perform that contract involved; that the company could not be justified in refusing to carry him to his destination, and to do so as agreed. But in holding that this did not necessarily give him a right to remain on the train after he had been told that it would not stop at his

unlawful ejection could not be maintained, but that the action should be predicated on a breach of contract to carry.

In International & G. N. R. Co. v. Hassell, 62 Tex. 256, 50 Am. Rep. 525, 6 Am. Neg. Cas. 514, it was held that one who boards a through train in reliance on the negli gent information of the ticket agent that it would stop at his station must leave the train at a regular stop preceding his destination, and on refusal to do so may be ejected. Judgment for plaintiff, however, was affirmed on the ground that the manner of ejection was improper.

destination, the court said: "Whatever rem- | S. C. 478, 64 S. E. 418, that an action for edy he may have against the company for its breach of contract, he had no right to determine for himself on what train he would travel. The business of railroads can only be carried on safely by having regularity. If trains are arranged in a certain way, and their time fixed with regard to limited stoppages, a conductor would never be safe if he were bound at his peril to ascertain from any mere stranger the existence of an agreement by the company to change the arrangement and stop at an unusual place. A passenger cannot compel a conductor to deviate from his appointed scheme, and if truly informed concerning the rule as to stoppages, he is bound to conform his own movements to it, and seek redress in some other way. Everyone is bound to know that the conductor is not invested with general power to run his train as he pleases, and that so far as he is concerned the trains must conform to the schedule." The court added that the passenger ought to have left the train at a regular stopping place; and then, if not furnished with passage to his destination, the expense of such passage would be a proper element of damages in addition to such, if any, as were occasioned by the failure to take him through on the train which he was told he could take, and the consequent delay; that he ought to have known that if he persisted in remaining on the train the conductor would probably remove him, and such a removal was not a distinct wrong in itself, because, after leaving the regular stopping place, he was wrongfully on the train, and so could not recover damages unless for some unlawful violence beyond the necessity of the removal; because it was lawful to take such steps as were necessary to remove and keep him removed from the train. Thus, such

an

one cannot complain of an indignity which it is his duty to avoid incurring and which he is bound to expect, the company having power, subject to damages for any breach of contract involved, to determine for itself what trains shall take passengers to their destination.

Also in White v. Evansville & T. H. R. Co. 133 Ind. 480, 33 N. E. 273, it was held that an action for wrongful ejection based on a negligent misdirection of the ticket agent could not be maintained.

While a passenger has a right to rely upon information received from a ticket agent, when purchasing his ticket, as to matters relating to the places where the train upon which he desires to embark will stop, and to recover from the company all resulting damages in case he is misled without his own fault, he has no right to remain upon a train without paying additional fare, contrary to the rules of the company, after he has been notified that the train will not stop according to the information received from the ticket agent. The conductor cannot be required to deviate from the rules under which he is compelled to run his train, nor to run his train except in conformity to the schedule, which the law requires shall be posted up for the information of all, upon the statement by a pas senger of information received from a ticket agent. Chicago, St. L. & P. R. Co. v. Bills, 118 Ind. 221, 20 N. E. 775. This being an action for wrongful ejection by use of excessive force, the remedy where a passenger is ejected without the use of force was not involved; but the court intimated that an action for damages in such a case should be based on the negligent misdirection of the ticket agent.

1

In Gulf, C. & S. F. R. Co. v. Moorman, Tex. Civ. App. 46 S. W. 662, action for damages sustained by being removed from train which was boarded in reliance upon the statement of the one in charge of the ticket office that it would stop at passenger's destination, judgment for plaintiff was affirmed. Although not so expressly stated, it is probable that the action was based on the negligent misdirection.

In International & G. N. R. Co. v. Kilgo, So, also, in Miller v. King, 21 App. Div. Tex. Civ. App., 71 S. W. 556, action 192, 47 N. Y. Supp. 534, it was held that to recover damages alleged to have been suswhere a ticket is sold to an intending pas- tained by being forced to alight from train senger by a ticket agent who erroneously because it did not stop at passenger's destiinforms the purchaser, prior to the issuancenation, where it was alleged that the train of the ticket, that the train will stop at his destination, and he boards such train relying on that statement, the railroad company is not bound to stop the train at that station when it is not scheduled to stop there, and the passenger may be properly ordered to leave the train at an intermediate stopping place, and the railroad company is only liable to the passenger for a breach of the contract to carry him to his destination.

And it may be assumed from the decision | in Black v. Atlantic Coast Line R. Co. 82

was boarded on information of ticket agent that it would stop at such destination, an instruction was held erroneous which predicated a recovery entirely upon the contents of the ticket, and not upon the conversation of the passenger with the ticket agent.

A conductor has a right to refuse to stop a train at a station at which, under the rules and regulations of the company, it is not permitted to stop, although a passenger destined for such a station was directed by an employee of the company to take that

sent by a jury which has retired, to the judge, who is waiting in the lobby of the court to receive the verdict, without requiring the attendance in court of the parties and their counsel, is, although the answer is accompanied by a statement that the question and answer are immaterial, ground for new trial, where the nature of the communication is never disclosed to the contending party, notwithstanding a statute requiring errors relating to pleading and procedure to be disregarded which do not injuriously affect the substantial rights of the parties.

E

(February 27, 1915.)

XCEPTIONS by defendant to rulings of the Superior Court for Suffolk County made during the trial of an action brought was some actual communication, oral or written, between the judge and jury not in open court, and cases in which the judge entered the jury room, whether he actually communicated with the jury or not; but do not include any cases involving communications made in open court in the absence of, or without notice to, parties or counsel. In accordance with the general rule, it is held in the following cases to be error for the trial court to have any communication with the jury not in open court.

Thus, it is error for which a judgment will be reversed for a trial judge to hold any communication with the jury in regard to the instructions in the case except in open court, and it is immaterial whether the instructions given were right or wrong. Mound City v. Mason, 262 Ill. 392, 104 N. E. 685.

to recover on an account annexed for goods sold and money advanced to defendant. Sustained.

The facts are stated in the opinion. Messrs. Ham, Frederick, & Yont, for defendant:

No communication should take place between the judge and the jury after the cause had been committed to them by the charge of the judge, unless in open court and, where practicable, in the presence of counsel in the case.

Sargent v. Roberts, 1 Pick. 337, 11 Am. Dec. 185; O'Connor v. Guthrie, 11 Iowa, 80; Read v. Cambridge, 124 Mass. 567, 26 Am. Rep. 690; Low v. Freeman, 117 Ind. 341, 20 N. E. 242; Smith v. McMillen, 19 Ind. 391; Coolman v. State, 163 Ind. 503, But upon an appeal, reported in 102 Tex. 263, 20 L.R.A. (N.S.) 429, 115 S. W. 1163, 20 Ann. Cas. 137, the supreme court took notice of the fact that a statement appended to the bill of exceptions by the trial court showed the fact that the court conferred with the foreman of the jury apart from the rest of the jury, and not in open court, and reversed the judgment on that ground, saying that in deciding the question it was not required to enter into a discussion as to how the conference between the judge and the foreman would have affected the verdict, if at all.

In Berst v. Moxom, 163 Mo. App. 123, 145 S. W. 857, where it appeared that the judge entered the jury room upon request of the jury, who could not agree, but declined to give any opinion in regard to their questions, although he did give them an instruction in writing that a verdict could be brought in by three fourths of the jury, the judgment was reversed on the ground that any communication in the jury room between the judge and jury in the absence of counsel, and without their consent, after the jury had retired to consider the issues, is reversible error.

Where the foreman of a jury had a communication with the judge after the jury had sealed their verdict, but, because of circumstances arising later, the jury, upon agreement of both parties, retired to further consider their verdict, a new trial was properly granted. Dralle v. Reedsburg, 135 Wis. 293, 115 N. W. 819.

It was error for the trial judge to enter the room where the jury were deliberating, and in the absence of accused and his counsel answer questions there propounded and give them advice with respect to the law on the case or the verdict to be returned by them, such action being not only a violation of the Criminal Code, which requires that when the jury desires to be informed upon a point of law they should be brought into court and the information given by the court in the presence of, or after notice to, the accused and his counsel, but also calculated to put the court in a position to be misjudged and its motive questioned. Bentler v. Com. 143 Ky. 503, 136 S. W. 896. In Texas Midland R. Co. v. Byrd, Tex. Civ. App., 110 S. W. 199, the assignment of error was upon an alleged statement made to the foreman of the jury by the judge, which, if it had been made, would have had a tendency to coerce the jury into arriving at a verdict, and the assign ment was overruled on the ground that the evidence was not sufficient to warrant the The fact that the trial judge, without conclusion that the judge did make the the consent of appellant, communicated statement to the foreman. Apparently no with the jury during their deliberations objection was made on the ground that the upon a case, is ground for a new trial. Holjudge and the foreman held a private con-liday v. Sampson, 42 Tex. Civ. App. 364, versation apart from the jury after the jury 95 S. W. 643.

In Greely v. Weaver, Me. 5 Atl. 267, it was held to be error requiring a new trial for the court, in response to a question sent to it by the jury after the court had adjourned for the day, and while they were deliberating on their verdict, to send to them a note reciting a rule of law already given in the charge.

had retired to deliberate upon their verdict. A justice of the peace has no more right

As to the written communication between the jury and the judge, the question is as to whether there was such misconduct as to require the verdict to be set aside. But in a jury room while the jury is deliberat- accompanied by the sheriff, went to the ing than any other person, and his pres-door of the jury room and asked them if ence there is clearly error. Gibbons v. Van Alstyne, 56 Hun, 639, 9 N. Y. Supp. 156. But, while no cases approve of the practice of private communication between judge and jury, some courts refuse to disturb a verdict because of such communication when no prejudice could have resulted from such communication.