Bresewitz v. St Louis, Iron Mountain & Southern Railway Co. , 75 Ark. 242 ( 1905 )

McCulloch, J.,

(after stating the facts.) Appellant claims that appellee fell short in its duty to him in two respects, and is liable in damages therefor, viz: In failing to cause the ticket to be delivered to him at Annapolis in due season, and in directing him to the wrong car at St. Louis.

The first question was submitted to the jury by the court upon instructions that if appellee’s agents, with reasonable promptness, transmitted the order to the Baltimore & Ohio Railroad Company for delivery of the ticket to appellant, that was sufficient compliance with its contract, and that appellee was not responsible for the failure of the latter company to promptly deliver the ticket. We think that instruction was correct. Conceding that it was within the scope of the authority of appellee’s local ticket qgent at Texarkana to execute the contract in question, it was, in effect, only an agreement to transmit the order for the ticket to the initial carrier. It did not amount to an undertaking that the seller of the ticket would deliver it to appellant. It is not contended that appellee assumed to carry passengers from Annapolis to Texarkana. The ticket was to be furnished by another carrier, over whose line appellant was to travel to St. Louis, where appellee’s line terminated; and, under the agreement, the first carrier cannot be treated as the agent of appellee for the purpose of delivering the ticket. All that the parties could have had in contemplation at the time of the agreement was that appellee’s agent should transmit to the initial carrier at Annapolis instructions to deliver the ticket to appellant. This they did with reasonable promptness, and appellee cannot be held responsible for delay of the other carrier in delivering the ticket after receipt of the instructions.

Appellant testifies as follows: “When I arrived at St. Louis, preparatory to departing south for this place, I went through the gate, and tried to get on the chair car next to the sleeper, and the porter said, ‘Go to the forward car, next to the baggage car.’ The porter saw my ticket. I obeyed orders, and went to the smoker, the one next to the baggage car, the one he directed me to, and rode in it to Texarkana. At that time I did not use tobacco. The effect of being in a place where it was used was sickening, made me sick at the stomach. It was in obedience to orders that I went there and rode to Texarkana in it. There was smoking in there all the way. * * * I did not say anything to the conductor or brakeman about wanting to go into the other car, and made no complaint. I did not get off the train at any point.” According to his own statement, he voluntarily submitted to the discomforts of the smoking car without objection or complaint, and cannot, therefore, claim damages therefor. He was not justified in accepting the direction given him by the train porter at the station to the car which he should enter as a command to remain therein throughout his journey. The train was in .charge of the conductor; and when appellant found that the car to which he had been assigned by the porter was uncomfortable, and not such accommodation as he was entitled to on his ticket, he should have appealed to the conductor for more comfortable quarters. Failing to do so, he is deemed to have voluntarily accepted the place assigned him with its discomforts. He had reached the age of discretion, and cannot be allowed to claim damages on account of a situation caused by a mistake of the porter which he accepted and gave the railroad company, through its proper official in charge of the train, no opportunity to correct.

Judgment affirmed.