But the published advertisements of the carrier are inadmissible to vary the express terms of a passage ticket or other contract of carriage. If a legal reason were wanted for this conclusion, it would seem to be found in the consideration that, by accepting the provisions of the special contract, the passenger waives his right to insist that the carrier shall comply with the terms of his published advertisement. Thus, it has been held that a passage ticket exchangeable for a return ticket, "good on train and date stamped on back," is not good for a return ticket on a later date and train, notwithstanding any published advertisement of the carrier to the contrary.10 So, a railroad "mileage ticket," upon which is expressed the condition, expressly assented to by the purchaser, that it should not be good for passage on freight trains, does not entitle such purchaser to ride on a freight train, although the carrier, subsequently to the purchase of the ticket, has advertised that passengers with tickets may ride on such trains." On the other hand, the carrier can not vary the terms of existing contracts of carriage by a published advertisement. Thus, a ticket purchased by a passenger, which gives him a right of transportation upon a steamer to a certain landing, can not be varied by a published advertisement of the owner of the line of steamers, to the effect that the boats will no longer stop at such landing.12 A statutory obligation that passenger trains shall stop at all stations at which they are advertised to stop, has been held not violated by failing to stop at a station where the train usually stops, and where a "folder" gives the time the train will reach the station, but says that it will "stop only on signal." It has also been held that, in an action against a railroad company for damages for failure to stop a train at a certain place at which there is no station, the plaintiff can not show that such place was treated as a station, by means of a time schedule, which on its face shows that it was for the government and information of the employés only, and that the company reserved the right to vary therefrom at pleasure; though it states that the train is due at such place at a certain time.14

Miss. 194; Dunlap v. Northern &c. R.
Co.. 35 Minn. 203.

10 Howard v. Chicago &c. R. Co., 61 Miss. 194.

11 Dunlap v. Northern &c. R. Co., 35 Minn. 203.

12 Brulard v. The Alvin, 45 Fed. Rep. 766.

13 Lake Erie &c. R. Co. v. People. 42 Ill. App. 387.

"Beauchamp v. International &c. R. Co., 56 Tex. 239.

17

§ 2553. Duty to Run Trains on Schedule Time.-It is the duty of a railroad company to exercise reasonable precaution and foresight to the end that its trains shall arrive and depart from stations at the time advertised in the time-tables.15 Therefore, a company whose line connects with another, and which has been accustomed to run its trains in connection with those of the latter, and continues to advertise to do so although the trains no longer run in connection with each other, will be responsible in damages to a person who has made his arrangements accordingly, and who has only learned that the trains do not make connections when he applies for his ticket.16 But, in the absence of a special contract for transportation, railroad companies can not be held to be warrantors or insurers that trains shall arrive and depart precisely as indicated by the time-table. The publication of a time-table imposes upon the company only the obligation. to use due care and skill to accomplish this result. Any detention which is due to willful and unreasonable delay of the conductor in charge of the train is properly attributable to the company itself, upon the familiar principle that if servants execute the business of their master in this manner, he will be held responsible.18 As hereafter seen,19 the mere fact of selling a ticket to a passenger does not involve a warranty on the part of the company that the ticket will be good for any particular train. Thus, it has been held that the mere fact that a passenger has a ticket with the imprint "Cardiff to Newcastle, via Midland Railway," does not of itself prove a contract or duty whereby the company issuing such ticket is bound to have their train run in connection with a train upon the "Midland Railway" running to Newcastle. Neither will representations of the train-men have this effect. The time-tables of the company should be introduced for this purpose.20 Changes, when made in the time

15 Louisville &c. R. Co. v. Godman, 104 Ind. 490; s. c. 2 West. Rep. 325.

16 Denton v. Great Northern R. Co., 5 El. & Bl. 860; s. c. Thomp. Carr. Pass. 53. See also Hamlin v. Great Northern R. Co., 1 Hurl. & N. 408; Heirn v. McCaughan, 32 Miss. 17.

"Therefore, where the train of the defendants was, on account of circumstances which could not be ordinarily anticipated, greatly overloaded, so that it was necessary to drive past one of its stations, on an up-grade, without stopping, whereby the plaintiff, a season-ticket holder, failed to get transportation as usual, it was held that the company were not liable, as they had done all that

tables, should be given all the publicity of the tables themselves. Therefore, where the railroad company was in the habit of keeping a standing advertisement of its time-tables in the leading city papers, it was held that it was not sufficient notice to the patrons of the road, of a change in the time of running one of its trains on a certain. evening, that printed notices to this effect were posted in the cars and stations of the road on the day of the change and for a day or two previous. Although the plaintiff rode upon the cars on the day of the change, no legal presumption that he saw the notice arose from the fact of their being posted up.21

§ 2554. Duty to Run Trains according to Established Custom.22_ If a certain train usually, habitually, or customarily stops at a certain station to take on or let off passengers, the public may govern itself accordingly, and take passage on such train to reach such station;23 and if the company fails to stop and let off a person who has taken passage for such point under such circumstances, but puts her off elsewhere, the company will be held liable in damages to such person. The obligation to run on schedule time is so imperative that a railway company does not become liable to a passenger for the refusal of its station-master to detain a train to enable him to have persons who have robbed him upon the train arrested and searched, although police are within immediate call. 24 So, a carrier is not negligent towards a passenger in so organizing and arranging its train as to facilitate the climbing of a mountain and pushing it through the snow to make its regular time and connections, if due regard is had to the situation and the circumstances under which it is done.25 According to an official statement of doctrine by the Supreme Court of Georgia, whether, in a given case, due diligence requires that a train should leave on schedule time, or whether persons upon it not as passengers, should alight from it before the time of departure fixed by schedule, or whether, when a train is starting or about to start, a person passing in front of the engine should see to it that the train

to the effect that they do not warrant that the trains will arrive and depart at the precise times indicated: Per Bovill, C. J., in Lord v. Midland R. Co., L. R. 2 C. P. 339, 345.

21 Sears v. Eastern R. Co., 14 Allen (Mass.) 433.

22 This section is cited in §§ 2890, 3017.

23 Texas &c. R. Co. v. Ludlam, 57

Fed. Rep. 481; s. c. 48 Alb. L. J. 427; 5 C. C. A. 454.

24 Cobb v. Great Western R. Co., L. R. (1894) A. C. 419.

25 Denver &c. R. Co. v. Pilgrim, 9 Colo. App. 86; s. c. 47 Pac. Rep. 657 (not negligence to attach a "flanger" between the engine which pushes the snow-plow and the two engines which draw the train).

is not moving or about to move, are all questions of fact for the jury, and not for decision by the court in its general charge.26

§ 2555. Duty to Give Information to Passengers.-It is the duty of the carrier, through his agents or servants, to give information to passengers as to whether a particular train or conveyance is going in the direction which the passenger wishes to take, or is one which, under the contract, he has a right to take;27 and the passenger is often blameworthy for not seeking such information.28

§ 2556. Construction of Statutes Requiring Railroad Companies to Post Bulletins of Approaching Trains.-Statutes have been enacted in several States, sometimes called "blackboard statutes," requiring railroad companies, under penalties, to post at their stations bulletin boards giving notice of approaching trains,-whether they are on time, or behind time, and if so, how much. In a few cases disgraceful subterfuges have been resorted to by railroad companies to avoid the performance of the duties prescribed by these necessary and beneficial statutes. In one case a railroad company set up the defense that it had no blackboards at its station on which it could mark the data required by the statute; but the Supreme Court of Indiana turned it down.29 In another case a railroad company set up the defense that it did not keep its telegraph office open in the night-time, so as to receive and post the data required by the statute as to a train arriving in the night; and a court actually allowed this defense,— holding that its custom of not keeping its telegraph office open within certain hours in the night-time was an excuse for its disobedience of a public statute.30 Where the statute required the data to be displayed on a blackboard at railway stations for twenty minutes prior to the schedule time for the arrival of any particular passenger train, this was held not to apply to trains which accomplished their trips in less than twenty minutes.31 The words of such a statute, "each passenger depot located at any station at which there is a telegraph office," did not confine the places where the statute was operative to places where there were station-houses and waitingrooms for passengers, but it extended to every station where a passenger train regularly stopped, if there was a telegraph office at such.

* *

*

* * *

Harris v. Central R. Co., 78 Ga. Ind. 69; s. c. 18 L. R. A. 502; 32 N. 525; s. c. 3 S. E. Rep. 355. E. Rep. 817.

"Lake Shore &c. R. Co. v. Rosenzweig, 113 Pa. St. 519; s. c. 4 Cent. Rep. 712.

25 Post, § 2562.

State v. Indiana &c. R. Co., 133

30 Terre Haute &c. R. Co. v. State, 13 Ind. App. 529; s. c. 41 N. E. Rep. 952.

31 State V. Kentucky &c. Bridge Co., 136 Ind. 195; s. c. 35 N. E. Rep. 991.

33

station.32 The statute was not rendered inoperative as to railway companies, by omitting the word "corporation" from that portion of the statute prescribing what must be written on the blackboard, and was sufficiently definite as to where such boards were to be put. Separate penalties may be recovered for separate violations of the statute at different stations.34 Such a statute does not render a railroad company, formed by the consolidation of two or more companies, liable for the penalty, where the dereliction is merely that of a lessee of one of such companies in the possession and operation of its road.35

§ 2557. Duty to Carry on the Particular Train for which a Ticket is Purchased. If a traveller purchases a ticket at full fare, which entitles him to make his journey on a particular train, and there is room for him on that train, the railway company can not lawfully refuse to carry him on that train, and require him to take an excursion train which comes later, although the rate of fare on the excursion train is less than on the regular train.37

§ 2558. Carrier Liable for Carrying Passenger beyond his Destination. If the passenger has purchased from the carrier, or otherwise

32 State v. Indiana &c. R. Co., 133 Ind. 69; s. c. 18 L. R. A. 502; 32 N. E. Rep. 817.

33 State supra.

V.

34 State v. Indiana &c. R. Co.,

supra. But under the Ohio statute a separate recovery can not be had of the penalty for each failure to register the time of an arrival of a train, but only for the failure to provide a blackboard or register the arrival of trains at any one station, without reference to the violation of each of the separate provisions of the act: State v. Cleveland &c. R. Co., 8 Ohio C. C. 604; s. c. 1 Ohio Dec. 403,-a decision which renders the statute in a large measure nugatory.

man

cheap rate. The plaintiff, a fifty-seven years of age, purchased a regular ticket, entitling him to Indiana &c. R. Co., carriage from Kansas City to Liberty, the price of which was double that of an excursion ticket between those points. Having purchased his ticket, the plaintiff proceeded to the regular train at the bridge depot in Kansas City and attempted to board it, but found the car locked. Seeing the conductor on the platform signaling the engineer to pull out, he informed him that he had a regular ticket to Liberty, and demanded to know why the doors were locked. The conductor replied that they were not taking passengers, and that he could go by the excursion train. By reason of having to wait for the excursion train, he was forced to ride with a disorderly crowd of passengers, drinking and smoking, and was delayed several hours, so that, instead of getting home early in the evening, he did not reach there until midnight. A verdict for one hundred dollars was sustained: Brassfield v. Hannibal &c. R. Co., supra.

35 State v. Pittsburgh &c. R. Co., 135 Ind. 578; s. c. 35 N. E. Rep. 700. Compare post, § 3385, et seq.

This section is cited in § 3017. 37 Brassfield v. Hannibal &c. R. Co., 19 Mo. App. 651; s. c. 2 West. Rep. 524. The facts of this case were that, during the fair at Kansas City in 1882, the defendant ran an excursion train to and from that city for the purpose of carrying those who chose to take advantage of a

28 This section is cited in §§ 2892,

3606.