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and to take passengers upon a train running from Corbin to Norton; Elys being on that line and about 25 miles east of Corbin.

There were two trains leaving Corbin daily on this line that were scheduled to stop at Elys; one leaving about 6 in the morning, the other about 2:30 in the afternoon, each requiring about 1 hours to reach Elys. There was also a fast train leaving over this road at about 3:45 in the morning; but this train was not scheduled to stop at Elys, and plaintiff waited in and around the station until this train was due to leave and boarded it. When the conductor came to collect Gaddie's fare, and saw that his ticket was for Elys, he immediately informed him that the train whether it will stop at his destination, the bare refusal of the conductor to stop there is no dereliction of his duty, and it is not negligence, to be visited on the company. St. Louis, I. M. & S. R. Co. v. Rosenberry, 45 Ark. 256, 2 Am. Neg. Cas. 122.

So, also, one who boards a train which, under traffic arrangements of the railroad company over whose lines it is running, is not permitted to stop at the place of such person's destination, cannot, by offering the fare to such place, require that the train stop there. Flood v. Chesapeake & O. R. Co. supra.

In St. Louis Southwestern R. Co. v. Townsend, 45 Tex. Civ. App. 616, 101 S. W. 455, it was held that an action for refusal to stop a train at the place where passenger wished to alight could not be maintained, it being inferable from the evidence that plaintiff, when he boarded the train, knew it would not stop at his destination, the place having been discontinued as a station, and none of the railroad company's trains stopping there, and he was given an opportunity to alight at a regular stop 1 mile from such place, and this although the auditor took the plaintiff's fare to the place at which he wished to get off, but, on being informed by the conductor that that was not a regular stopping place, informed the passenger of his mistake and gave him an opportunity to alight at the station 1 mile before reaching the place to which he wished to go.

In Miley v. Northern P. R. Co. 41 Mont. 51, 108 Pac. 5, action to recover statutory penalty for refusal to stop train at station, the court, while intimating that the statute did not require the railroad company to stop the train at every station, reserved its decision on that point, holding that plaintiff did not bring herself within the provisions of that statute so as to entitle recovery, as the statute provided that the regular fare must be tendered, and she tendered an excursion ticket at a reduced rate.

If one through his own neglect embarks on a mere "wild train" which is not scheduled to stop at his place of destination, and which the conductor cannot delay without the danger of throwing the passenger and

would not stop at that place, and that he would have to alight at Flat Lick, an intermediate station, one mile west of Elys. This plaintiff said he would not do. Later, as the train was nearing Barbourville, the county seat of Knox county, the conductor asked Gaddie if he would not rather alight at Barbourville, where he could get a hotel, than at Flat Lick; but plaintiff declined to accept the suggestion, and he says that the conductor did not speak to him after that.

When the train stopped at Flat Lick plaintiff failed to alight. He admits that he knew that Elys was not a regular stop for that train, having lived at said station for years, but testifies that he did not think the conductor would be so contrary freight travel of the road into confusion, it is the conductor's duty to refuse to stop merely for such passenger's accommodation, and the fact that the conductor took the passenger's ticket would not alter the rule under such circumstances. St. Louis, I. M. & S. R. Co. v. Rosenberry, 45 Ark. 256, 2 Am. Neg. Cas. 122; St. Louis, I. M. & S. R. Co. v. Atchison, 47 Ark. 74, 14 S. W. 468, 2 Am. Neg. Cas. 136.

And in Chicago & A. R. Co. v. Randolph, 53 Ill. 510, 5 Am. Rep. 60, 2 Am. Neg. Cas. 574, where a passenger boarded a freight train, desiring to go to a station at which such train stopped only as transportation of stock or freight might require, in holding the railroad company not liable for failure to stop at such point, there being no stock at that place for shipment, the court said that it is but reasonable that a railroad company may exclude all passengers from such trains or only carry them to places at which they are accustomed to stop; and if a person gets upon such a train without any agreement that it will stop at an unusual place of stopping, he cannot require the company to change the usual course of its business for his accommodation and to serve his convenience. Should a person get on such a train without the consent of the employees of the road, the taking up of his ticket merely, without an agreement to stop at the desired station, would not amount to an undertaking by the company to put him off at that place. In such a case the passenger is in the wrong and has no right to insist that he be safely put off at the point he desires, or be carried without further charge.

Also in Missouri, K. & T. R. Co. v. Byas, 9 Tex. Civ. App. 572, 29 S. W. 1122, action for refusal to stop at place of destination of one who boarded a through special excursion train by mistake, which left at about the same time as the regular passenger train, a charge that it was the duty of the railroad company to stop its train at such point in any event was held incorrect, as, although it was the duty of the railroad company to stop its train at each station a sufficient time for passengers to alight, yet the com

as not to stop there for him to get off. However, he was mistaken in this, and was carried on past Elys to the next regular stopping place-Four Mile. There he voluntarily left the train and proceeded to walk the 2 miles back to Elys. He testifies that it was so dark that he could not see anything, and that he fell into a ditch and over some cross ties, and skinned his legs, and was badly injured; that the coach was very warm when he got off, and coming out in the cold air, and having to walk so far on the ice and sleet, he was chilled, and contracted a cold, and suffered greatly.

pany was permitted to run special excursion trains between two points without stopping at intermediate stations. The court stated: "The train upon which plaintiff traveled was not a regular passenger train; the defendant had not by running it undertaken that it should stop at all way stations. As it furnished a train for such passengers as plaintiff, it had the right to run a special train through without stop ping unless by its conduct it had entitled plaintiff to demand that it should stop at his destination. If he was not informed and did not know of the difference between the two trains and was justified by the manner in which defendant managed its train at Houston, in believing that the train which he entered was a proper one upon which he was to be carried, we are of the opinion that he had the right to expect defendant to let him off at his destination, and in case of his failure to do so to recover such damages as resulted to him therefrom. And his rights would, we think, be the same if the officers in the train recognized him as a passenger to Harrisburg by taking up his ticket and promising to put him off there and failed to do so though he may have entered the cars with knowledge of the character of the trains. Or whether he was misled by defendant's conduct or not, if he entered the train believing in good faith that it was the regular passenger train, or that it was to stop at his destination, and if defendant's servants learned of his presence in the train and his destination before passing Harrisburg, they were bound to treat him as a passenger, and if Harrisburg was the first station passed after defendant's servants learned of plaintiff's mistake under such circumstances we think it would be required to put him off there. But if, when he entered the train, he was informed or knew the train was a special one which did not stop at Harrisburg, and if there was no such recognition of his right as a passenger by the employees on the train as is above supposed, he had no right to demand that those operating the train should stop to let him get off. The charge assumed that he was entitled to have the train stop in any event, and hence was erroneous."

Words on a ticket, "good on passenger trains only," do not impose any obligation

1. It has been held that a carrier has a right to make and enforce reasonable rules and regulations for the operation of its trains, that it is the duty of a person proposing to become a passenger to ascertain before boarding the train whether it stops at his destination, and that a passenger who boards a train not scheduled to stop at the station to which he desires to go cannot recover damages for the failure of the conductor to stop thereat. In Louisville & N. R. Co. v. Miles, 100 Ky. 84, 37 S. W. 486, it was said that "if it be within the power of a passenger by getting aboard of a train to compel it to stop at any station he may on a railroad company to carry a holder on any passenger train that does not, in accordance with the public running arrangements of the company, stop at the place named, and to stop there contrary to those arrangements to discharge him. Ohio & M. R. Co. v. Swarthout, 67 Ind. 567, 33 Am. Rep. 104. The court stated that the words were probably intended to prevent any implication that the company was bound to carry the holder on freight trains, or anything but passenger trains.

But in Hutchinson v. Southern R. Co. 140 N. C. 123, 52 S. E. 263, 6 Ann. Cas. 22, one who boarded a train not scheduled to stop at her station was held entitled to recover damages for failure of the conductor to stop at such point, on the ground that the defendant failed in its duty to have someone at the gate to examine the tickets, and prevent anyone from boarding the train for a station at which the train was not scheduled to stop. The court said: "There was nothing on the face of her ticket to show that it was not good on that train. It was the duty of the defendant to have had an agent at the gate (as is usual) to examine the tickets and allow no one to get upon a train which does not stop at his destination. Not having done this, but having received the plaintiff into this train without objection, with a ticket calling for Liberty, a regular station, as her destination, and she not knowing that this train did not stop there, it was the duty of the defendant to stop the train at that point for her." The court further said that if the plaintiff had been aware that the train did not stop at her station she could not complain if she had been put off at the first stop, with her ticket indorsed with leave to pursue her journey by the next train stopping at her destination; but that she testified that she had no such information, and, on the contrary, that she had twice in eighteen months previously been on the same train, which stopped and put her off at Liberty; and that the notice on the printed schedule of the company was not brought home to her, and there was no evidence that she had any actual notice that the train did not stop there. This case, in holding that the railroad company was bound to stop its train at the passenger's destination although it was not scheduled to stop at that

agent in agreeing with or informing the purchaser of a ticket to a certain station that the train proposed by the passenger to be taken will stop at the station for the purpose of permitting the passenger to alight thereat.

designate, then the authority of the com- | ordinarily bound by the act of its ticket pany to make reasonable rules for the conduct of its business. and the running of its train is destroyed, the traveling public would be seriously interrupted, a railroad could no longer calculate upon its trains making certain connections with trains on other roads, and the hazard of operating them would be increased."

The rule stated in that case, however, is subject to the limitation expressed later in the opinion in Louisville & N. R. Co. v. Scott, 141 Ky. 538, 34 L.R.A. (N.S.) 206, 133 S. W. 800, Ann. Cas. 1912C, 547, wherein it was held that a railroad company is place, seems to be out of harmony with the decisions of analogous cases, as where one has been misdirected, and where it is held that the railroad company was not bound to stop its train, but that the passenger had an action for breach of contract to carry, or in tort for negligence in misdirecting.

And it has been held that where a passenger boards a train, his destination being a station at which the train is not scheduled to stop, and to which station no tickets are sold for such train, but his fare to such station is received by the conductor, he may recover for injuries sustained as a result of failure to stop the train sufficient time to allow him to alight, where it is shown that while not scheduled to stop at the station, the train is required by law to stop at a railway intersection 500 feet beyond; that passengers had for several years been received on this train to be carried to such station, the conductor collecting the fare to such place, and they being in the habit of getting off at the place where the train stopped before reaching the intersection, which at times was at the station platform, and in reliance on such custom and on the fact that the train came to a full stop, the injured passenger attempted to alight. McNulta v. Ensch, 134 Ill. 46, 24 N. E. 631, 2 Am. Neg. Cas. 675. It may be stated that the defendant laid no particular stress on the fact that the passenger had boarded a train not scheduled to stop at his destination, but based its nonliability on the fact that the train stopped beyond the station, where passengers alighted with safety, and that the plaintiff should have waited until the train reached such place; but the court based the liability on the fact that at the time the conductor received the fare the passenger should have been notified that no stop would be made at the station, and in the absence of such notification and because of the fact that the train slackened its speed before reaching the station platform and finally stopped at it, the passenger was justified in believing that that was the place for him to alight.

-effect of sale of ticket.

A railroad company which sells a ticket to a certain place does not enter into a con

2. In the case at bar Gaddie had no information from or agreement with any ticket agent that the train he boarded would stop at Elys; but he claims and testified that, when the train upon which he took passage at Corbin was announced, he went through the gate through which all passengers were required to pass in order to reach tract with the one purchasing and accepting such ticket that such person will be carried to the place indicated on the ticket on a train which does not stop, under the rules and regulations of the railroad company, at such place. Usher v. Chicago, R. I. & P. R. Co. 71 Kan. 375, 80 Pac. 956.

So, also, a railroad company by selling a ticket to a certain point does not obligate itself to stop a through express at the latter station, nor is the sale of a ticket in itself an assurance that the purchaser will be carried through to his destination on a through express without change of cars. Atchison, T. & S. F. R. Co. v. Cameron, 14 C. C. A. 358, 32 U. S. App. 67, 66 Fed. 709.

And the fact that a ticket was sold to one and he is permitted to enter the cars of a train which does not stop at his destination does not require that the train be stopped at such place, if it is not in accordance with the regulations of the company to stop there. Haskins v. Lake Shore & M. S. R. Co. 4 Ohio L. J. 951.

A sale of a ticket as a train is approaching is not a representation that that train will stop at the station for which the ticket was purchased. Duling v. Philadelphia, W. & B. R. Co. 66 Md. 120, 6 Atl. 592.

Nor is the fact that the ticket is marked "For this day and train only" a representation that that train will stop at the place for which the ticket was purchased. Ibid.

And in Noble v. Atchison, T. & S. F. R. Co. 4 Okla. 534, 46 Pac. 483, it was held that the fact that one asked a ticket agent when a certain train was due, and, upon being informed that it would arrive in a few minutes, asked for a ticket to a certain place at which the train by its schedule did not stop, will not, where such person boarded the train and was ejected upon his refusal to pay fare to the first regular stop of the train, entitled him to an action to recover damages, based on the ground that he was misled or misinformed by the agent, or that a special agreement was made by the railroad company through its agent by which he was to be put off at the station to which he had purchased the ticket. The court stated that in order to sustain this contention it is necessary that it should clearly appear in the evidence that it was the intention of the passenger to take the through

the train; that the gateman called for the exhibition of tickets; that he held his ticket up, and the gateman pointed and called out the number of the track on which was standing the train which he boarded. He further testified that, as he was about to step on the train, the brakeman asked him where he was going, and he replied that he was going to Elys, and went on in the train without objection upon the part of the brakeman. Because of these facts it is contended that it was the contractual duty of the company to stop the train at Elys.

The greater weight of authority supports the rule that where a passenger, by reason train then due in eight or ten minutes, which, by the regulations of the company, did not stop at his destination, and that it was not his intention to wait from that time until an hour later, and take the local train, which, by the regulations of the company, did stop at his destination, and that at the time the agent of the company knew that such was the intention of the passenger, and that the agent consented to this arrangement and that the regulations of the company should be waived to suit this proposition and purpose of the passenger; and it must also specifically and clearly appear that the passenger acted upon the agreement thus intentionally and knowingly made between the agent of the company and himself. It must also appear that the passenger was himself in the exercise of due care in making this agreement, and that he had taken pains to inform himself that the through passenger train which he took did or did not, under the regulations of the company, stop at his destination, and that the agent of the railroad company was fully aware and knew by what transpired between them at the time that it was the intention of the passenger to take the through passenger train, and that the agent understood it to be agreed upon between them that that train should stop at his destination.

But in Texas & P. R. Co. v. Cole, 66 Tex. 562, 1 S. W. 629 (action to recover damages for physical and mental suffering resulting from walking to destination where one who boarded a train which did not stop at her destination was carried to the first stopping place beyond such destination, the conductor refusing to stop at the place for which she had a ticket), although the verdict for the plaintiff was reversed on the ground that the injuries were proximately caused by the passenger's own negligence, yet the court, in the course of its opinion, stated that the railroad company's first breach of duty toward such passenger was in selling her a ticket to her destination when the train did not stop at that place, and that this was the foundation upon which her right of recovery rested. There is nothing in the opinion to indicate as to why the court thought that the ticket agent should not have sold the ticket, and the only way to harmonize this statement with decisions in

of incorrect information of the carrier's employees, boards a train not scheduled to stop at the station for which he has a ticket and to which he desires to go, the carrier has a right to correct the mistake, and to require the passenger to alight at a regular stopping place, which is a suitable place, from which he may take the next regular train that does stop at his destination; and that it is the duty of the passenger to stop off at such place and wait for such train. Carter v. Southern R. Co. 75 S. C. 355, 55 S. E. 771; Black v. Atlantic Coast Line R. Co. 82 S. C. 478, 64 S. E. 418; Runyon v. Pennsylvania R. Co. 74 N. J. L. similar cases would be to assume that from the time the train went, and other circumstances surrounding the purchase of the ticket, the ticket agent should have known that the purchaser intended to take that train, and should have advised her that she could not reach her destination by such train, and should have refused to sell her a ticket for that place if he knew that she was going to take that train with the thought of alighting at such place.

-effect of misdirection of ticket agent.

In Marshall v. St. Louis, K. C. & N. R. Co. 78 Mo. 610, where one, at the direction of the ticket agent, boarded a train which did not stop at her destination, and was carried to the first stopping station beyond, it was held that an action for damages predicated on the conductor's refusal to stop the train at her destination could not be maintained, but that the action should be predicated on the negligent misdirection of the ticket agent. The court stated that the conductor was not guilty of negligence in refusing to stop his train at the passenger's destination, for he was forbidden to do so by the rules of the company; and if he had stopped there in violation of his duty and the regulations of the company, and injury had resulted to anyone from such violation of duty, the company would have been held liable therefor. If the conductor of a through train, which, by the regulations of the company, is permitted to stop only at a few important stations on its transit, can be required to stop his train at any way station on the statement of a passenger that he was informed by some agent of the company authorized to give such information that the train would stop at such station, and that he had been directed to take that train, the movement of such train would virtually be withdrawn from the control of the company, and placed under the control of the pas sengers; and in lieu of that precision, regularity, and security which should be required in the management of passenger trains, only uncertainty, irregularity, and insecurity would prevail. In many instances the conductor would have no means of testing the good faith of the representations made to him by the passenger, and he would have to

225, 68 Atl. 107; International & G. N. R. Co. v. Hassell, 62 Tex. 256, 50 Am. Rep. 525; Miller v. King, 21 App. Div. 192, 47 N. Y. Supp. 534; Lake Shore & M. S. R. Co. v. Pierce, 47 Mich. 277, 11 N. W. 157; Turner v. McCook, 77 Mo. App. 198; St. Louis Southwestern R. Co. v. Wallace, 32 Tex. Civ. App. 312, 74 S. W. 581; St. Louis Southwestern R. Co. v. Townsend, 45 Tex. Civ. App. 616, 101 S. W. 455. This we think to be a sound rule of law. We do not mean to be understood, how ever, as holding that when the passenger, at the time he purchases his ticket, is informed by the ticket agent that the train act blindly at the risk of injury to his master and to the passengers committed to his care. When any servant of a railroad company having the requisite authority misdirects a passenger to his injury, the company should be responsible therefor; but in an action for such injury the petition should be founded upon such misdirection.

In Carter v. Southern R. Co. 75 S. C. 355, 55 S. E. 771, action to recover damages alleged to have resulted from the refusal of the conductor to stop his train, which had been boarded through inadvertent misdirection of the ticket agent, at an unscheduled stop, it was held that while a railroad company will be liable for damages resulting from misdirection of a ticket agent, yet where a passenger refuses to get off at a station preceding her destination, where a local train could be taken to such destination a few hours later, and, insisting on the train stopping at her destination, is carried on and gets off at the first regular stop beyond her destination, which necessitates a walk back of several miles over a rough mountain trail, through heat and storm, -damages for sickness and injury resulting from such walk could not be recovered. The court said: "Assuming, then, that the plaintiff's being on the wrong train was due to the mistake of the railroad company, and not to any fault of her own, what were the relative duties in these circumstances of the railroad company and the passenger? Ordinarily the duty of a railroad company is to stop its train to let off passengers at stations to which it has undertaken to carry them. But where, as in this case, a passenger is on a train by the mistake of a ticket agent, which, under the rules of the company, does not stop at the station called for by his ticket, the prompt and safe transportation of other passengers is also to be considered by the conductor in deciding whether he will adhere to his schedule or stop for the particular passenger; and if, in good faith, he decides it to be his duty not to stop, then it is the duty of the railroad company to correct the mistake of the ticket agent as far as practicable with the least possible damage and inconvenience to the passenger, and to compensate the passenger for such damage as resulted from the mistake as the proximate cause.

he proposes to take will stop at his destination to permit him to alight, although it is not a regular scheduled stop for such train, the carrier may correct such error, and the passenger be required to alight at an intermediate station, for the carrier in such case has made its contract, and that contract the passenger has a right to enforce. But, where no specific agreement for such stopping of the train is clearly shown to have been effected at the time of the purchase of the ticket, then the mere act of a gateman or brakeman, in making no objections to the boarding of the train by the passenger, ought not and will not estop The duty of a passenger in the situation of the plaintiff is to use all reasonable means known to herself or suggested by the conductor to minimize her damage, especially when it is conceded, as in this case, that the fault alleged against the ticket agent in misleading the passenger was due to inadvertence; and the passenger cannot recover for loss or injury which could have been avoided by the use of such means. In the application of this principle of the right and duty of the carrier to correct its mistake and of the duty of the passenger to minimize the damage, as a general rule where a passenger, on account of the mistake of the carrier's agent, boards a train not scheduled to stop at his station, the carrier has a right to correct the mistake by letting the passenger off at a stopping place of that train before passing the passenger's destination, so that he may take the next train scheduled to stop at his destination; and it is the duty of the passenger to stop off and wait for such train. In such cases, however, the common carrier is, of course, liable for any damage or loss of time resulting from the passenger's stopping off which would not have been incident to waiting for the local train at the point where the passenger had to commence his journey." The court distinguished this case from Richardson v. Atlantic Coast Line R. Co. 71 S. C. 445, 51 S. E. 261, stating that in the Richardson Case the conductor not only refused to stop at the passenger's destination, but demanded of the passenger additional fare to the stop beyond, which was the only stop anywhere in the vicinity of his destination, and upon the passenger's refusal to pay, stopped the train and put him off against his will, as a trespasser.

In Humphries v. Illinois C. R. Co. 70 Miss. 453, 12 So. 155, action to recover damages alleged to be the result of refusal to stop through train at passenger's destination, it was held to be a question for the jury as to whether there was a special contract to stop the train at such place, where there was evidence that a ticket agent sold the ticket knowing it was to be used for such train, and there was also some evidence that the train would customarily stop there for the purpose of allowing interstate passengers to alight.

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