Lundy v. Cent. Pac. R.R.

Thornton, J. -The court below, in granting the nonsuit in this case, misconceived the meaning of the contract for passage between the plaintiff and defendant. In our view, it was only-required of the plaintiff that he present himself at the cars of the Union Pacific Railroad Company, or of the defendant, and take passage at any time within nine days from the 12th day of March, 1874 The plaintiff took passage on the 21st of the same month, and was illegally ejected from the cars of defendant by its servant on the morning of the 25th following. The admission of defendant showed clearly that the contract for carrying the plaintiff from Omaha to San Francisco, though made by the Union Pacific Railroad Company, was made by authority of defendant. We have no doubt that the action was properly brought against the defendant. We see nothing in the evidence to uphold the ruling of the court below nonsuiting the plaintiff, and the judgment and order denying a new trial are therefore reversed, and the cause remanded, that a new trial may be had in accordance with the views herein expressed. Sharpstein, J., and Myrick, J.,concurred.