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![handle is hein.slavery/ssactsengr0323 and id is 1 raw text is: PALMER V. NAYLOR
the plaintiff was a traveller by the license of the company. At all events he cannot
be treated as a trespasser.
Bramwell replied.
Cur. adv. vult.
The judgment of the Court was now delivered by
COLRIDGE, J. The question in this case arises upon a bill of exceptions to the
ruling of my Brother Martin in regard to the issue upon an allegation in the third
count of the declaration. This allegation was, that the plaintiff below, at the time
of the committing the grievance complained of, was lawfully in a certain carriage
upon a certain public highway. The plea to this count was, that the plaintiff below
was at the time unlawfully and not lawfully in the said carriage as alleged; on which
the plaintiff below took issue. It was objected, at the close of the case for the
plaintiff, that there was no evidence to be submitted to the jury in support of it;
that it appeared from the evidence offered, that the plaintiff was unlawfully in the
carriage; that the learned Judge ought so to direct the jury, and that he ought so
to decide as a matter of law from the construction of a certain pass-ticket which had.
been given in [381] evidence. The learned Judge however told the jury, that there
was evidence for their 'consideration, and left to them the question, whether, at the,
time of committing the alleged grievances, the plaintiff was lawfully in the said
carriage. We are of opinion the ruling of the learned Judge was right.
The evidence in the case may be fairly taken to have amounted to this: [His.
Lordship stated the evidence as set forth in the commencement of the report, and
proceeded :]-
In considering upon this evidence the question we have to decide, much will
depend upon the sense in which we are to understand the issue. We think it does
not raise any point as to the lawfulness of the carriage being on the highway, i.e..
the railway ; or, if it does, that it is clear the carriage was there lawfully as between
the plaintiff and defendants; but the point is whether or not the plaintiff was in the
carriage under such circumstances as that he must be considered a trespasser. Now,
upon the issue so stated, we think the pass-ticket not so conclusive as to make the-
other circumstances wholly immaterial. The defendants might issue tickets in a.
form which purported to make them not transferable, and yet they might not
unreasonably permit them to be used by other persons belonging to the same depart-
ment, which permission would be a convenience to the newspaper proprietors, and
might be a matter of indifference to themselves. The practice which had prevailed
was not conclusive of this, because it was not conclusively shewn to have been known,
by the defendants or any officer authorised to permit it; but there was evidence of'
such knowledge, and on which the jury might find it to have existed; and if the jury
should be of opinion that this irregular use of the tickets, however worded, was with,
the knowledge and permission of the superintendent of the station whom the defen-
dants placed there to regulate such matters, this would be such evidence of a license
as would make it wrong to say that the plaintiff was a trespasser in (382] the carriage.
Other considerations might arise on the language of the memorandum, if we knew
it more certainly than we do; for if the plaintiff by the use of the ticket, though,
unauthorised, only made himself liable to the payment of the fare, or to an increased
fare, he could not then be considered a trespasser. But without entering on these.
considerations as to which the facts fail us, it appears to us that there was something.
for the jury, and that is all we need hold in order to decide that the judgment should.
be, as we think it ought to be, affirmed.
Judgment affirmed.
PALMER AND ANOTHER V. NAYLOR AND OTHERS. July 3, 1854.-To a declaration
on a policy of assurance on advances for the transport of Chinese emigrants from,
China to Peru, for their outfit and provisions, to be paid on the arrival of the
emigrants at the port of destination, the perils insured against being pirates,.
rovers, 'thieves &c., barratry of the master and mariners, and all other perils,
losses, and misfortunes, &c., in the usual form ; the declaration alleging a total
loss by the emigrants piratically and feloniously murdering the captain and part.
of the crew, and feloniously stealing and carrying away the ship-the defendants.
pleaded, first, that, as soon as the emigrants had committed the murder and had,
492
10 EX. 381.](ViewImageLocal?handle=hein.slavery/ssactsengr0323&div=1&collection=&method=preview&ext=.png&size=3)