New Orleans N.E.R. Co. v. Martin ( 1925 )

^* Headnotes 1. Trial, 38 Cyc., p. 1565; 2. Carriers, 10 C.J., Section 1264; 3. Carriers, 10 C.J., Section 1266; 4. Carriers, 10 C.J., Section 1397. Appellee, Mrs. J.R. Martin, brought this action in the circuit court of Jones county against appellant, New Orleans Northeastern Railroad Company, for damages for an alleged injury done her by appellant in carrying her beyond her station as a passenger on its line of railroad, and also because of offensive and insulting language addressed to her by the appellant's conductor in charge of its train on which appellee was a passenger, growing out of the fact that she had been carried beyond her station. Appellee recovered a judgment for five hundred dollars, from which appellant prosecutes this appeal.

Appellant contends that the trial court erred in refusing its request for a directed verdict in its favor. In determining the merits of that question, the evidence should be considered most favorably to appellee, and, so construing the evidence if it tends to establish appellee's case, this question was one for the jury and not for the court. Appellee's case most favorably viewed is as follows:

Appellee was a passenger on appellant's line of railroad, returning from a meeting of the Grand Chapter of the Eastern Star at West Point, in this state, which meeting she had attended as a delegate from her home at Ovett, also in this state. Appellee was one of something like forty delegates, composed of ladies and gentlemen, from points in South Mississippi, returning from the meeting of the Grand Chapter of the Eastern Star. These delegates had return tickets to Heidelberg, Sandersville, Laurel, Hattiesburg, Lumberton, Poplarville, and Picayune, on appellant's line of railroad, but none for Ellisville. They were traveling in a Mobile Ohio passenger coach in which the Mobile Ohio Railroad Company had carried them from West Point to Meridian. At the latter place, which is the northern terminus of appellant's line of railroad, this Mobile Ohio car was attached to the rear of one of appellant's afternoon south-bound trains, which made stops between Meridian and Hattiesburg only at certain stations. It was a vestibule train; the doors could only be opened by first raising the trap doors above the steps leading in and out of the train.

At Meridian the conductor made out a list from the tickets held by the Eastern Star delegates turned over to him by the Mobile Ohio Railroad conductor in charge of the train that brought this special car from West Point to Meridian, showing the stations to which the tickets were returnable, and turned this list over to his flagman with instructions to open the proper vestibule door leading out of the special car at such stations so that they could disembark. The flagman had this list and obeyed the conductor's instructions in that respect. The special Mobile Ohio car was used alone for carrying and disembarking the Eastern Star delegates. No other passengers were taken thereon. The next regular stop of appellant's train carrying the special car after leaving Laurel was Ellisville, and the next was Hattiesburg. The vestibule doors leading into the special car were not to be opened at any station except those to which the Eastern Star delegates had return tickets.

Appellee was given an opportunity to get off at Laurel, which was her destination, according to her ticket. However, she had made up her mind, for certain reasons, to go to Ellisville and disembark there. But she failed to inform the conductor or any other employee connected with the train of her intention so to do. She simply kept her seat with the uncommunicated purpose in her mind to get off at Ellisville, instead of Laurel. The train reached Ellisville in due course, where it stopped, but the flagman did not open the vestibule door to the special car because his list showed that no Eastern Star delegates had return tickets to that place. When the train stopped at Ellisville, appellee without asking the help of any one, or notifying any of the train crew of her purpose, undertook to open the vestibule door to the special car and was unable to do so, and thereupon returned to her seat. Immediately after the train pulled out from Ellisville, a friend of appellee informed the conductor that appellee desired to get off at Ellisville. At that time the train was well under way, and when the conductor went back into the special car to interview appellee about the matter the train was, according to one witness, near the Agricultural College, and, according to another, some two or three miles out of Ellisville. Appellee asked the conductor to stop the train and let her off. The conductor replied that he could not stop the train, and that appellee would have to go on to Hattiesburg, the next stop, and pay her fare to that station, and thereupon she paid the fare, one dollar and five cents. Appellee testified that that was all that transpired between them except she said his manner was offensive and insulting. She did not claim that any language was used by the conductor that was offensive and insulting, but only his manner was as he spoke.

Was there any breach of duty due by appellant to appellee in failing to open the vestibule door of the special car in which appellee was traveling so as to enable her to disembark at Ellisville? The court said, in Southern Railway v. Kendrick,40 Miss. 374, loc. cit. 384 (90 Am. Dec. 332):

"Passengers on a public conveyance are of a different nature [that is, from goods]. They are persons endowed with volition and capability of rational locomotion. They are not delivered to the keeping of the carrier, but, of their own will, make use of his vehicle as a means of conveyance, and take their seats for the purpose of being transported from one place to another, co-operating with him in accomplishing the end of the undertaking, which is to be safely carried to a given place, where it is to be presumed they will be careful to do what is necessary on their part to this purpose.

"In the case of goods, the obligation is to carry and deliver; as to passengers, it is simply to carry, and to allow them sufficient time and opportunity to leave the vehicle. . . . It would be unreasonable to require personal warning to each individual passenger. . . . It is better to require something to be done by the passengers, and all that is required by the prevalent custom is that he [the conductor] shall use reasonable care and vigilance in attending to the business he has undertaken."

Appellee made no complaint, and had no right to make any, that, on reaching Ellisville, the station was not announced in the special car by the conductor or any one else. She testified that she knew the train was approaching Ellisville, and knew when it stopped at that station. She attempted to get off there and failed to do so because the vestibule door was not opened. Her complaint is, first, that she was not given an opportunity to get off at Ellisville; and, second, that the conductor was insulting toward her while discussing the matter with her. If appellee is right in her position, then a passenger on a day coach who had gone back into a Pullman car to talk to a friend would have the legal right to have some of the train crew in charge of the train to go back into the Pullman car and announce his station before it was reached. This was a special car used for a special purpose and that was to carry these Eastern Star delegates back to their destinations as shown by their tickets. Of course they had the right to change their destinations, but we are of opinion that if that was done it was their duty to give some one of the train crew having duties in reference thereto notice of such changes, so that the proper opportunity could be given for them to disembark.

Under the principles laid down in the Kendrick case as applied to the facts of this case, we think appellee's conduct was the sole cause of her not being given an opportunity to get off at Ellisville. She knew before she got to Ellisville that she desired to get off there; she knew that her return ticket was to Laurel, which station she had passed; and she is bound to have known that neither the conductor nor any of the balance of the train crew had any knowledge of her change of purpose to get off at Ellisville instead of Laurel. After leaving Laurel, all she had to do was to inform the conductor, or have some one else do it for her, that she had changed her destination from Laurel to Ellisville, and doubtless she would have been given an opportunity and gotten off at Ellisville without any trouble. It was too much to require of the flagman that, when he saw from his list of the delegates that the required number failed to get off at Laurel, he go through the entire train before leaving Laurel in search of the missing ones. He could have reasonably decided that they had gone forward into the regular coaches and left the train in that way. It was held in the Kendrick case that passengers are not carried and delivered as goods are transported and delivered. Passengers are required within the bounds of reason to co-operate with the carrier in traveling and alighting from the train at their destinations. In the case of goods, the obligation is to carry and deliver; as to passengers, the obligation is to carry with proper care and allow them sufficient time and opportunity to leave the train. It was held further in the Kendrick case that it would be unreasonable to require a personal warning to each individual passenger on reaching his destination, and all that is required of those in charge of passenger trains is to have the stations announced.

We hold, therefore, there was no breach of duty on the part of appellant in its failure to open the vestibule door to this special car at Ellisville. Nor do we think there was any breach of duty on the part of appellant in not backing its train after leaving Ellisville and discovering that appellee desired to get off there, in order to permit her to do so. Appellant owed at that time the larger duty to the other passengers to carry them on. Trains run on schedules. The traveling public, to a great extent, make their engagements, take trains, and travel with reference to those schedules. Perhaps on this particular train there were a number of passengers having various destinations in this state and in other states; probably some making short connections with other railroads. They had the right to have the train proceed.

Appellee contends, however, that, even though thus far appellant was guilty of no breach of duty toward her, appellant was guilty of a willful wrong to her, in that after the train left Ellisville the conductor was offensive and insulting to her in the interview occurring between them with reference to her failure to leave the train at Ellisville. Using her own language, this is what occurred: The conductor asked, "`Do you want to get off at this stop?' And I said, `I do; will you please back up?' And he said, `No; you can't get off here,'" and stated that she would have to pay her fare to Hattiesburg, which she did, and got off there. She testified that he used no offensive language, but that his manner was insulting and offensive.

In Mississippi Tennessee Railroad Co. v. Gill, 66 Miss. 39, 5 So. 393, the facts were these: The plaintiff, a passenger, pulled the bell cord to signal the engineer to stop the train. The conductor's language was, "You have broken my bell cord, sir." The plaintiff testified that this was said in an angry and insulting manner. He did not state however, what the manner of the conductor was or wherein it was insulting. The court said that it was not a case for punitive damages even on plaintiff's evidence; that "brusqueness on the part of a railroad conductor is not an insult for which its employers are to be punished, where it amounts to no more than in this record." K.C., M. B.R.R. Co. v. Fite, 67 Miss. 373, 7 So. 223, is in point. The plaintiff in that case asked the conductor to stop at Miller's, a station. The conductor replied, "Hell, yes; it is a regular station." The court held that plaintiff was not entitled to exemplary damages. In A. V. Railway Co. v. Lowry, 100 Miss. 860, 57 So. 289, the conductor in charge of a passenger train demanded additional fare for the corpse of the passenger's child. The testimony showed that the passenger had presented the conductor with a check for the fare of the corpse, and the conductor said, "I can't honor that." Plaintiff testified that his manner was "harsh and gruff, and he appeared to be mad." The court held that it was not a case for punitive damages. In LightCo. v. Taylor, 112 Miss. 60, 72 So. 856, the conductor's language was, "Do you want to get off at this stop?" Plaintiff replied, "I do; will you please back up?" And he said, "No; you will get off right here," Plaintiff testified that the conductor's manner and tone were rough. The court held that it was not a case for punitive damages. In M. O.R.R. Co. v. Favior, 115 Miss. 96, 75 So. 777, the conductor demanded that the passenger get off the train at Macon. The passenger insisted that she had bought a ticket to Meridian. The conductor replied that she had not and that he would wire the agent at West Point and see. Later he came back and told plaintiff that the ticket agent at West Point said she had not bought any ticket there, and that he would have the marshal of the town to take her off the train. Plaintiff testified that she felt very embarrassed and started to cry. The court held that it was not a case for punitive damages. We do not understand the earlier decisions of this court relied on by appellee to be in conflict with those above.

In the present case an instruction authorizing punitive damages was given the jury, and their verdict was principally, if not entirely, for punitive damages because the evidence shows that appellee suffered neither physical nor financial damage except the small sum paid by her representing the fare between Ellisville and Hattiesburg, which was the result of her own fault and not that of appellant.

We do not think this is a case for punitive damages, and therefore the court erred in submitting that question to the jury. Appellant's request for a directed verdict should have been granted.

Reversed, and judgment here for appellant.