40

acquired, the right to be transported to a certain place upon a certain vehicle of the carrier, and the passenger is nevertheless, without fault on his part, carried beyond such point of destination, he may recover from the carrier the resulting damages. 39 This rule has been applied in cases where a railway passenger has been carried past the station of his destination, without being allowed a sufficient time to get off." And for the purposes of the application of this rule it makes no difference whether the passenger is upon a passenger or a freight train, provided the company carries passengers on such trains." The inability of the carrier to stop his vehicle at the place of the passenger's destination will not afford a complete defense to such an action. For example, a railway company will be liable to a passenger carried beyond his destination, owing to the inability of its servants to stop the train because the appliances imperfectly communicate the signal of the conductor to the engineer, if the conductor fails to back the train to the station or to offer to do so, but compels the passenger to leave the train against his will at a distance beyond the station.42 Somewhat differently from this, it has been held that, in order to lay the foundation of an action for damages for carrying him past the station of his destination, the passenger must request the conductor, or other person in charge of the train, to run the train back to the station, 13. -a view which is believed to be untenable. But the courts generally take the view that it is no part of the undertaking of a railway carrier to do other than call out the names of the stations and give their passengers a reasonable time to alight. They do not, in the opinion of the courts, owe to particular passengers the duty of warning them concerning the arrival at their points of destination, though it is well known to be customary in every well-regulated service for the servants of the company to endeavor to do so. Even a promise on the part of the conductor in charge of a railway train to rouse a sick and drowsy passenger at his place of destination does not, if unfulfilled, in the opinion of one court, lay the foundation for an action

43

39 New Orleans &c. R. Co. v. Hurst, 36 Miss. 660; Porter v. The New England, 17 Mo. 290; Pittsburgh &c. R. Co. v. Nuzum, 50 Ind. 141; Mobile &c. R. Co. v. McArthur, 43 Miss. 180; Memphis &c. R. Co. v. Whitfield, 44 Miss. 466; Sunday v. Gordon, 1 Blatchf. & H. Adm. (U. S.) 569; Louisville &c. R. Co. v. Cayce, 17 Ky. L. Rep. 1389; s. c. 34 S. W. Rep. 896 (not to be rep.); Louisville &c. R. Co. v. Quick, 125 Ala. 553; 8. c. 28 South. Rep. 14; Miller v.

King, 84 Hun (N. Y.) 308; s. c. 32
N. Y. Supp. 332.

40 White Water &c. R. Co. v. Butler, 112 Ind. 598; s. c. 12 West. Rep. 207; 14 N. E. Rep. 599; Winkler v. St. Louis &c. R. Co., 21 Mo. App. 99.

41 White Water &c. R. Co. v. Butler, 112 Ind. 598; s. c. 12 West. Rep. 207; 14 N. E. Rep. 599.

42 Louisville &c. R. Co. v. Dancy, 97 Ala. 338; s. c. 11 South. Rep. 796. 43 Gulf &c. R. Co. v. Head, 4 Wills. (Tex. App. Civ. Cas.) 313; s. c. 15 S. W. Rep. 504.

45

44

against the company for carrying the passenger beyond the station.** But where the station agent and conductor of the train agreed that a sick passenger should have care on the way, and be carried from the train to his destination, but nevertheless he was carried past his point of destination while unconscious, and was put off at a small way station, where he was left for nearly forty hours without care and attention, and was then brought back to his destination by the carrier, it was held that the carrier was liable in damages for the injury resulting to him from such ill treatment and exposure. On the other hand, it has been held that notice to a street-car conductor by a passenger that she wishes to stop at a certain place, does not impose upon him the absolute duty of giving her express notice of the stopping of the car at that place, or require any other action on his part than to stop for a reasonable time, in order to relieve the company from liability for an injury which she received by the starting of the car while she was getting off after a reasonable stop, where the conductor thought that she did not intend to get off.46

§ 2559. Measure of Damages for being Carried beyond Destination. Difficulty has arisen in determining, in cases of the kind under consideration, what damages are to be deemed the direct or proximate result of the wrong of the carrier, and what too speculative or remote. Where a passenger, through no fault of his, was carried some distance beyond the station at which he was to alight, on a dark night, and was there put off the train, and, in walking back to the station along the railway track, fell through a trestle and was injured, it was held that the damages accruing from this injury were not too remote.* On the other hand, it has been held that a person who was carried past his destination while asleep, and at whose request the train was stopped to allow him to get off, has no cause of action against the carrier for sickness occasioned by fright sustained in going back to his destination, though misled by the conductor of the train as to its location when he alighted therefrom.48 A female passenger who is carried beyond the station of her destination by no fault of her own, in consequence of the failure of a servant of the carrier to perform his duty, is entitled to recover from the carrier damages for the physical injury, as well as for the vexation and anxiety which she may

44 Sevier v. Vicksburg &c. R. Co., R. Co., 157 Mass. 224; s. c. 32 N. E. 61 Miss. 8. Rep. 1.

45 Weightman v. Louisville &c. R. Co., 70 Miss. 563; s. c. 19 L. R. A. 671; 47 Alb. L. J. 370; 12 South. Rep. 586.

Robinson v. Northampton Street

47 Winkler v. St. Louis &c. R. Co., 21 Mo. App. 99.

48 Wilson v. New Orleans &c. R. Co., 68 Miss. 9; s. c. 8 South. Rep. 330.

In

have suffered in getting back to the point of her destination.* such a case the physical injury and anxiety caused by her exposure to rain and cold after getting back to her destination, are not proper elements of damage. 50 Where a passenger was carried beyond her destination, without circumstances of aggravation or personal injury, and suffered a delay of only two hours, and there was nothing to show the value of the time and labor which she thus lost,-it was held that nominal damages only could be recovered.51

§ 2560. Carrying Passenger beyond his Station where it has been Duly Called and the Train Stops.-If the name of the station has been duly called by one of the trainmen for a sufficient time before the arrival of the train at the station platform, to enable a passenger to alight in safety by the exercise of reasonable care and diligence,52 and the passenger nevertheless fails to get off, in consequence of which he is carried beyond his destination, he can not recover damages from the company; because this would be to make his own negligence a ground of recovering such damages. The passenger is bound to use his senses and to take notice of the usual announcements of the stations.53

§ 2561. What if Train does not Stop at Station Called for by the Ticket. If the passenger is carried beyond his destination in consequence of the fact that, by the rules of the company and the schedules on which it runs its trains, the particular train does not stop at the station called for by his ticket, then whether he will have a right of action for damages will depend upon certain considerations to be now stated. In the first place, a railroad company is not bound, un

49 Louisville &c. R. Co. v. Quick, 125 Ala. 553; s. c. 28 South. Rep. 14. Louisville &c. R. Co. v. Quick,

supra.

51 Texarkana &c. R. Co. v. Anderson, 67 Ark. 123; s. c. 53 S. W. Rep. 673.

32 As to this, see post, §§ 2890, 3017. 53 St. Louis &c. R. Co. v. Ricketts, 22 Tex. Civ. App. 515; s. c. 54 S. W. Rep. 1090; Central Texas &c. R. Co. v. Hoard (Tex. Civ. App.), 49 S. W. Rep. 142 (no off. rep.) (passenger did not hear announcement of his station because he was engaged in conversation). In an action for damages for carrying the plaintiff beyond her destination, in an appropriate state of the pleadings and the evidence, it was held error to refuse to give an instruction re

quested by the defendant, to the effect that if the employés on a train gave the usual notice of the approach of and arrival at a station which was plaintiff's destination, and gave such notice in a manner reasonably calculated to inform plaintiff of such arrival, and plaintiff failed to leave the train, though it stopped long enough for her to do so, she could not recover;-it should have been given without any qualification, since it fully stated the law on the point to which it was directed: St. Louis &c. R. Co. v. Ricketts, 22 Tex. Civ. App. 515; s. c. 54 S. W. Rep. 1090. See Missouri &c. R. Co. v. Miller, 20 Tex. Civ. App. 570.

54 This section is cited in §§ 2893, 2897, 3230.

less compelled to do so by a valid statute or an express contract,55 to cause every one of its trains to stop at all its stations; but it may prescribe that its mail and express trains may stop only at prominent places, and that its ordinary passenger trains shall stop at the other places.5 Nor are they bound so to schedule and run their trains as to enable each passenger to make a continuous trip.57 It follows that, in the absence of a statute or of a special contract, a passenger having a ticket to a particular station has no right to require a train to stop at a station where, according to the regulations of the company, it is not scheduled to stop, and does not ordinarily stop.58

§ 2562. Duty of Passenger to Make Inquiry as to whether Train Stops at his Station.5-In the next place, the sale of a ticket to a given station is not of itself a representation by the company that the next train will stop at such station; but it is the duty of a person, before taking passage upon a railway train, to use reasonable diligence, by inquiry of the station agent or of the conductor of the train, or by reading the published schedules of the company, or by other means, to ascertain whether or not the particular train will stop at his place of destination; and if he neglects these precautions and goes upon the train, he can not make the mere fact of his being carried beyond his place of destination to the next regular stopping place of the train, the basis of a recovery of damages from the company. He can not

Plott v. Chicago &c. R. Co., 63 Wis. 511; Atchison &c. R. Co. v. Cameron, 66 Fed. Rep. 709.

56 Atchison &c. R. Co. v. Gants, 38 Kan. 608; s. c. 17 Pac. Rep. 54; Atchison &c. R. Co. v. Cameron, 66 Fed. Rep. 709.

57 Atchison &c. R. Co. v. Cameron, 66 Fed. Rep. 709.

58 Atchison &c. R. Co. v. Cameron, 66 Fed. Rep. 709. That a railroad company may make reasonable regulations as to stopping certain trains at certain stations and not at others,-see Texas &c. R. Co. v. Ludlam, 57 Fed. Rep. 481; s. c. 6 C. C. A. 454; 13 U. S. App. 540; Alabama &c. R. Co. v. Carmichael, 90 Ala. 19; s. c. 8 South. Rep. 87; 9 L. R. A. 388; St. Louis &c. R. Co. v. Atchison, 47 Ark. 74; s. c. 14 S. W. Rep. 468; Chicago &c. R. Co. v. Randolph, 57 Ill. 510; s. c. 5 Am. Rep. 60; Ohio &c. R. Co. v. Applewhite, 52 Ind. 540; Dietrich v. Pennsylvania R. Co., 71 Pa. St. 432; Texas &c. R. Co. v. White (Tex. Civ. App.), 17 S. W. Rep. 419 (no off. rep.); Lind

60

ley v. Texas &c. R. Co. (Tex. Civ. App.), 17 S. W. Rep. 421 (no off. rep.); Louisville &c. R. Co. v. Miles, 37 S. W. Rep. 486 (no off. rep.). A statute of Michigan (How. Mich. Stat., § 3324), renders a railroad company liable for a failure to stop its train for the passenger holding a ticket over its road, where the proper signal has been given, and the company is without lawful excuse for the neglect: Freeman v. Detroit &c. R. Co., 65 Mich. 577; s. c. 9 West. Rep. 117; 32 N. W. Rep. 833. If the signal given by the intending passenger was such that the trainmen could not, by reason of a prevailing storm, see it, although exercising due care and diligence, the intending passenger could not recover damages by reason of the train not stopping for him: Freeman v. Detroit &c. R. Co., 65 Mich. 577; s. c. 9 West. Rep. 117; 32 N. W. Rep. 833.

59 This section is cited in §§ 2555, 3228, 3230.

Duling v. Philadelphia &c. R.

rightfully demand that he be put off, at a point where there is no regular station, unless he has contracted for that privilege with some agent of the company having the real or apparent power to make such contract.61 A railroad company is bound by the declarations of its agent, made to an intending passenger at the time of selling him a ticket, that a particular train will stop at the station for which the ticket is purchased."2 As between the ticket agent and the conductor in charge of the train, a statement of the conductor that the train will not stop at a particular place will of course control; since the running of the particular train is his immediate duty to his principal. Therefore, if a passenger relies on the assurance of the ticket agent that a particular train will stop at his place of destination, and disregards the statement of the conductor of the train to the contrary effect, and makes no further effort to learn the truth, but boards the train and is carried beyond such station to the next stopping place of the train, these facts do not afford ground for the recovery of damages.63

§ 2563. Further of the Rights of the Passenger who Boards a Train which does not Stop at his Proper Station.-If a passenger boards a train which does not stop at the place called for by his ticket,

Co., 66 Md. 120; Schiffler v. Chicago &c. R. Co., 96 Wis. 141; s. c. 71 N. W. Rep. 97; 8 Am. & Eng. Rail. Cas. (N. S.) 122; Louisville &c. R. Co. v. Miles, 18 Ky. L. Rep. 580; s. c. 37 S. W. Rep. 486 (no off. rep.); Wilson v. North &c. R. Co., 63 Miss. 352. Where an intending passenger purchased a ticket at a company's office when a train was about departing in the direction in which he wished to go, and, after boarding the train, he learned that it would not stop at the station for which he had purchased the ticket, he has no redress against the company: Duling v. Philadelphia &c. R. Co., 66 Md. 120; s. c. 5 Cent. Rep. 570. So, a railroad company is not obliged to stop its train at a place where it is not scheduled to stop, to permit a boy who has boarded it without a ticket, in ignorance of the regulations preventing the train from stopping at such place, to alight: Schiffler v. Chicago &c. R. Co., 96 Wis. 141; s. c. 71 N. W. Rep. 97; 8 Am. & Eng. Rail. Cas. (N. S.) 122.

G1 Hall v. East Line &c. R. Co., 66 Tex. 619.

62 Miller v. King, 84 Hun (N. Y.) 308; s. c. 32 N. Y. Supp. 332.

63 Dye v. Virginia &c. R. Co., 19 Wash. L. Rep. 369; s. c. 20 D. C. App. 63. In this case the ticket agent informed plaintiff that her train was a solid train and went through to her destination without change of cars. Her destination was on the line of an intersecting railroad, and there was evidence that before reaching the junction the conductor went through the car in which plaintiff was and announced that passengers for stations on the intersecting road were to change at the junction. Plaintiff testified that she did not hear it, did not get off at the junction, was carried to the next station, and in walking back fell into a pit and was injured. The judgment for plaintiff was reversed and remanded on the ground that under the instructions given the jury might have found that, even if plaintiff had heard the conductor's announcement, she would have been justified in disregarding it and relying on the statement of the ticket agent: Dye v. Virginia &c. R. Co., supra.