Harvey v. Atlantic Coast Line Railroad

Hoke, J.,

after stating tbe case. It was earnestly insisted before us that no recovery should have been allowed in this case, and this chiefly for the reason that on the facts in evidence the mileage book was not a contract of carriage, but only a binding agreement to supply a ticket, and the plaintiff having failed to procure the ticket and refused to pay fare, the conductor had a right to expel him from the train, but we do not think such a position can be maintained. The book purports throughout to be a contract of carriage. It is labeled a mileage ticket and begins with a stipulation that this “ticket” will be “honored,” etc., and on the time limit that “This ticket expires,” and so on, and containing an express provision that “Undetached coupons will be honored on trains for transportation of passenger and baggage from a non-agency station or from an agency station that is not open for the sale of tickets,” etc. A perusal of this mileage book and its various provisions leads necessarily to the conclusion that it is a contract of carriage with the purchaser and holder, subject to certain restrictive stipulations for a wrongful breach of which defendant company may under given conditions expel such holder from its trains, but while the contract requires that at agency stations the holder shall ordinarily present his mileage book at the office and procure an “exchange mileage ticket,” it clearly contemplates that the company on its part shall afford reasonable and proper facilities for such exchange. This is not only apparent from the general purport of the contract, but it is included, we think, within express provision that “Coupons undetached will be received for passage from non-agency stations and agency stations not open for sale of tickets.” And from this it follows that where by the wrong and fault of the company, a lawful holder of a mileage book is prevented from making the exchange required, such holder is relieved of the conditions and his book becomes a complete contract of carriage, unaffected by the -restrictions referred to. There are several well considered cases holding these mileage boobs to be contracts of carriage, notably: Pa. Co. v. Lenhart, 120 Fed., 61; Pittsburg & C. Railway Co. v. Sheet, 26 Ind. App., p. 224. And these and other authorities on contracts of similar import are to the effect that when a carrier has wrongfully failed to afford reasonable and proper facilities for complying with these and similar restrictive stipulations the holder is thereby relieved from this feature of the obligation and his expulsion from the train on the part of the defendant’s agents may become an actionable wrong. Cherry v. Chicago & Alton, 191 Mo., 489; Texas & Pacific Railway v. Payne, 99 Tex., p. 46; R. R. v. Sheet, supra. In the last case it was held that: •“Where plaintiff presented an interchangeable mileage ticket to defendant railroad company’s ticket agent, purchased of a passenger association of which defendant was a member, and demanded an exchange ticket, and was informed by the agent that the supply of tickets was exhausted, he was not required to pay the regular fare and then sue the company for failure to carry him on his mileage book, but had the right to be carried on his mileage, and, if ejected, bring suit for damages.” In R. R. v. Payne the passenger had a return ticket requiring that it be presented and endorsed by the agent at the destination of a shipment which he was accompanying. The agent in question having refused to endorse the ticket, the passenger on the return trip, having presented the ticket and refused to pay his fare, was ejected from the train at an intermediate station. It was held the passenger was entitled to recover damages “Not only for the value of the transportation and the expenses occasioned by such ejection, but also for the humiliation, etc., caused thereby.”

The principle upon which these cases are made to rest has been upheld in a well considered decision of our Court. Ammons v. R. R., 138 N. C., p. 555, and in which it was held as follows:

“1. A regulation of a carrier is reasonable which requires passengers to procure tickets before entering the car, and where this requirement is duly made known and reasonable opportunities are afforded for complying with it, it may be enforced either by expulsion from the train or by requiring the payment of a higher rate than the ticket fare.

“2. If, without having afforded a reasonable opportunity to the passenger to provide himself with a ticket, the carrier should eject him upon his refusal to pay the additional charge for carriage without a ticket, when he is ready and offers to pay his fare at the ticket rate, his expulsion will be illegal, and he may recover damage for the trespass, and his right of recovery cannot be made to depend upon the conductor’s knowledge or ignorance of the fact that the agent had no tickets for sale.”

Associate Justice Walker, delivering the opinion, quotes with approval from Fetter on Carriers, sec. 269, as follows: “By the overwhelming weight of authority, the furnishing of proper facilities to enable a passenger to purchase a ticket is a prerequisite to the right to demand a train fare at a higher rate than the ticket fare; and, if such facilities are not furnished, a passenger who without fault on his part boards a train without such a ticket will, on tender of the ticket fare, be entitled to all the rights and privileges that a ticket would afford him. If he is rightfully on the train without a ticket, it is his right to complete his journey by paying the ticket rate for his fare. So, it has been held that the fact that the company agrees to refund the excess of train fare on presentation of the conductor’s receipt or check at a regular station, does not authorize the higher trai^i charge, if no reasonable opportunity is given the passenger to purchase a ticket in the first instance. It cannot be justly said that it is reasonable to require the passenger to pay more than a regular rate on the train, even though a process is created by which he may at some future time get back the excess, unless the passenger has first had an opportunity to purchase a ticket at the station from which he starts.” And the same general principle was recognized and applied to a different state of facts in the recent case of Mace v. R. R., 151 N. C., p. 404.

We were urged on the argument to direct that the verdict be set aside and a new trial granted by reason of an excessive award of damages on the part of the jury, but such a ruling may not be made here; certainly not in the form as suggested. Under our Constitution, Art. TV*, sec. 8, this Court is given “jurisdiction to review upon appeal any decision of the court below upon any matter of law or legal inference” and so far as relevant to the question presented this is the extent of it, and we bave no power to act directly on the verdict of juries. Ever since the amendment to the Constitution conferring jurisdiction over “issues of fact and questions of fact to the same extent as exercised prior to the Constitution of 1868,” the construction of the amendment, in several well considered cases, has been that it does not embrace or apply to common law actions such as this, but only to suits which were exclusively cognizable in a court of equity, and to them only when the entire proof is written or documentary, and in all respects the same as it was when the court below passed upon it. Runnion v. Ramsey, 93 N. C., p. 411; Worthy v. Shields, 90 N. C., p. 192; State and City of Greensboro v. Scott, 84 N. C., p. 184; Foushee v. Thompson & Pattershall, 67 N. C., p. 453. Under our system of procedure, the power we are now invited to exercise is primarily vested in our Superior Court judges, who preside at the trial of causes. Being in a position to note the appearance and conduct of parties, the demeanor of witnesses and the existence of conditions bearing upon the trial, they are much better qualified to supervise the conduct of juries and deal with their verdicts than an appellate court can possibly be. Undoubtedly, when it is clear that a jury, in disregard of the testimony, has rendered a verdict under the influence of passion or prejudice, a presiding judge should be prompt to set the same aside, but the matter is necessarily left largely to bis discretion and to such an extent that in many of our cases expressions will be found to the effect that this discretion is final, and so it is in so far as the direct supervision of verdicts is concerned. Boney v. R. R., 145 N. C., p. 248; Slocum v. Construction Co., 142 N. C., p. 349; Norton v. R. R., 122 N. C., p. 937. Our Supreme Court can only influence verdicts indirectly by considering, in the exercise of its appellate power, the action of the presiding jiidge in reference to them. If verdicts are so clearly contrary to the evidence as to make it perfectly clear, as stated, that a jury must have acted in total disregard of the testimony and to such an extent that the presiding judge bad manifestly committed a gross abuse of Ms discretion in failing to set it aside, tbis would amount to the denial of a legal right and bring the case witMn the appellate jurisdiction of tbis Court. Tbe correct position is well stated by Associate Justice Brown, in a recent case of Freeman v. Bell, 150 N. C., p. 149, as follows: “It may be, as contended, that the. damages awarded are excessive, but we cannot review the judge of the Superior Court, upon a matter witbin bis sound discretion, unless it appears that there has been a gross abuse of such discretion.” And the same position is recognized in another case at the same term of Billings v. Observer, 150 N. C., p. 543. Applying the principle, as stated, we cannot bold that the action of the lower court in dealing with tbis verdict is such an abuse of discretion as to raise a question of law or legal inference, and the position must be resolved against the defendant.

It was further contended that there was error in allowing substantial damages for the wrong done defendant for the reason that plaintiff might have prevented or avoided bis chief grievance by paying the small amount of money demanded for bis fare, but no such position can be allowed to prevail in tbis jurisdiction. Tbe Court held, in several recent cases, that when one. has been injured by the wrongful conduct of another be must do what can be reasonably done to avoid or lessen the effects of the wrong. Tbis was held in the case of torts in Bowen v. King, 146 N. C., p. 391; R. R. v. Hardware Co., 143 N. C., p. 54, and recognized in a case of contract in Tillinghast v. Cotton Mills, 143 N. C., p. 268, but the principle which obtained in those eases does not arise or apply until after a tort has been committed or contract has been broken. A person is not required to anticipate that another will persist in misdoing till an actionable wrong has been committed, nor to shape bis course beforehand so as to avoid its result. On the contrary, be may assume to the last that the wrongdoer will turn from bis way or in any event be may stand upon bis legal rights and bold the other for the legal damages wMch may ensue. Cherry v. R. R., 191 Mo., 489; Pennsylvania Co. v. Lenhart, 120 Fed., 63. In tbis last case, speaking to tbis question, the Court said: “Len-hart paid for and presented a legal ticket. To the proposition that be could not stand upon bis rights, but was compelled, for the sake of saving the company from the consequences of its threatened breach of contract, to pay bis fare again in cash, if be bad it, and then sue for its recovery, we do not yield our assent. After a breach of contract has been committed, the injured party is not allowed to aggravate bis damages, and is required to use reasonable diligence to minimize them. But beforehand one is not forced to abandon bis legal right under a contract, and waive the damages that may arise from its breach, in order to induce bis adversary not to proceed as be wrongfully claims is bis right.” We find no reversible error in the record and the judgment below must be affirmed.

No error.