Yazoo & M. V. R. Co. v. O'Keefe , 125 Miss. 536 ( 1921 )

Ethridge, J.,

delivered the opinion of the court.

This is an appeal from a judgment of the circuit court for one thousand five hundred dollars in favor of the ap-pellee, growing out of the appellee being carried by the station of his destination. The appellee, the plaintiff, at the time he was carried by his station was a minor six years old. The father of the plaintiff went to the ticket agent at Rome, Miss., and stated to him that his child was inexperienced,and was not used to traveling alone, and asked the ticket agent if it would be safe to send the minor child to Blaine, Miss., in care of the conductor, and the ticket agent informed him that it would be. Thereupon plaintiff’s father purchased the ticket, carrié'd the ticket and the child to the train, and placed the child in charge of the conductor; the conductor promising to put the child off at Blaine, and taking the child to a seat and telling Mm to remain there until he came for him to put him off at the right place. When the train reached Blaine the conductor forgot to put the child off and carried him past his station. After discovering that he had carried the child past his station he went to the child and told him that he would have to put him off at Sunflower, Miss., but that he would come back for him in about an hour. The child was put off at Sunflower, and the conductor on meeting the train coming back by Sunflower, told the conductor of that train about the child being left at Sunflower and requested him to take him on board his train and carry the child back to Blaine and put him off there and place him in some one’s care. The conductor did so, and on the way to Blaine found a citizen on the train who would stop at Blaine and who agreed to take care of the child. The plaintiff’s aunt was to meet him at the train which he first boarded at Blaine, and she did meet the train, but as the child did not get off she returned to her home in the country some three or four miles. The child testified that when he was put off the train he was alone, knew no one and was frightened, and sat down and cried. He also testified that it rained while he was at Sunflower and he got wet; that on the way to Mr. Blount’s home he again got wet, and that he was nervous and excited and contracted cold, and woke up the following morning sick; that he was carried the next day to his aunt’s residence, and continued sick and had chills and fever for some three or four weeks. His aunt was a trained nurse, and testified that the child was nervous and sick when he came to her home, and that he had chills and fever for three or four weeks; that she was not able to treat him successfully, and he was sent home and was there treated by a physician. The child’s father testified also as to the conversation with the ticket agent and with the conductor and in reference to the child’s illness after reaching home, and that the child was subsequently afraid to travel alone and was nervous and fearful to a'greater extent than he had even been before. There was a verdict for one thousand five hundred dollars.

It is contended for the appellant that the conductor was without authority to bind the defendant by his promise to put the boy off the train at Blaine, and also that the ticket agent was likewise without authority to do so; that the instructions were confusing and misleading and constituted grounds for reversal; that the trial court assumed facts in the instructions which were not supported by the evidence; and that the verdict is so excessive as to indicate passion, prejudice, or unaccountable caprice on the part of the jury.

This court has held in several cases that the conductor is generally without authority to make agreements to give special attention to particular passengers, on the ground that it is contrary to public policy for him to discriminate between passengers, and that such agreements are generally without the scope of his authority. Railroad Co. v. Kendrick, 40 Miss. 374, 90 Am. Dec. 332; Railroad v. Statham, 42 Miss. 607, 97 Am. Dec. 478; Sevier v. Railroad, 61 Miss. 8, 48 Am. Rep. 74; Gage v. Railroad, 75 Miss. 17, 21 So. 657. It is not generally the duty of the conductor to make contracts for the railroad company as to the carriage of passengers; that duty is generally confided to the station agent or ticket agent. We think, however, that the ticket agent has authority to brake contracts for the railroad company as to the carriage of passengers. Such contracts are within the scope or apparent scope of his powers and duties. The railroad company is not required to accept for carriage small children unattended, or sick persons unattended, or any person unattended who is not conlpetent to take care of himself, but the railroad company has power to contract specially to carry such persons, and if they do so contract and carry such persons they owe them such reasonable care and attention as the circumstances call for. Weightman v. Railroad, 70 Miss. 563, 12 So. 586, 19 L. R. A. 671, 35 Am. St. Rep. 660; 5 Amer. & Eng. Enc. L. 538; Croom v. Railroad Co.: 52 Minn. 296, 53 N. W. 1128, 18 L. R. A. 602, 38 Am. St. Rep. 557.

In the present case there is nothing in the record to show that any rule forbidding a contract of this kind, was called to the attention of'the child’s father, or that such rule was posted in a conspicuous place in the passenger depot, where it might be easily seen and read by the traveling public. We think the conversation between the ticket agent and the child’s father, followed by the sale of a ticket and the placing of the child in the care of the conductor to be put off at Blaine, and the act of the conductor instructing the child to remain seated where it was placed until the conductor returned for him, constitutes a contract with the railroad-company to carry the child and put him off at his destination. Some one must represent the carrier in the transaction of its business, and a ticket agent generally is vested Avitk power to malee contracts for the railroad company, and, notwithstanding the agent testified in the case that he ha'd no authority to make such a contract, there is nothing in the record to show that any limitation of his powers was called to the attention of the parties, or was posted in a conspicuous place in the passenger depot. In the absence of such a rule so posted or brought to the knowledge of the plaintiff’s father, the railroad company must be held to have contracted with the plaintiff to put him off at his destination.

Instructions for the plaintiff, Nos. 1, 3, and 7, are complained of, and it is insisted that they told the jury, in substance, that, if they believed the ticket agent promised that the conductor would put the boy off at his destination, and the conductor also promised the same thing, and if they believed it was within the scope of the authority of these employees to bind the railroad company by an agreement or promise made by the agent and conductor, then that the defendant railroad company would be liable for the conductor’s failure to put the boy off. We have examined these instructions, and we think they are not erroneous and that they come within the principles above announced. We do not think these instructions assumed facts that are ant in evidence.

It is next assigned fur eiror that the verdict is excessive. It is aiways a matter of some difficulty for an appellate court to say with precision what damages should be allowed for an illness resulting from a breach of duty by a railroad company. It is clear from the evidence that the illness, so far as the chills and fever were concerned, was not the result of ibe railroad company’s breach of duty. Jt does appear that the child was somewhat frightened and suffered from a cold. And though the child also suffered from malaria, and probably the cold hastened the development of malaria into chills and fever, still the malaria was not caused by the breach of duty. The cold does nov; appear to have, been serious, and if taken alone would probably not be serious. The child’s evidence as to the facts bearing on getting wet and taking cold is contradicted, but that presented a question for the jury to settle; but, taking the child’s testimony as true as to getting wet and being frightened and contracting cold, we still think the verdict is grossly excessive.

In our judgment the verdict should be limited to three hundred dollars, and, if the appellee will enter a remittitur of all in excess of three hundred dollars, the judgment will be affirmed; otherwise it will be reversed and remanded for a new trial.

Affirmed, uñth remittitur.