Opinion
November, 1908.
Douglas Swift, for appellant.
John McLaren, for respondent.
The facts in this case are undisputed, and the only question presented upon this appeal relates to the rule of damages applicable to them. On Sunday, March 17, 1907, at the defendant's ticket office, the plaintiff purchased a ticket to Rochester via the Delaware, Lackawanna and Western railroad to Mount Morris, N.Y., and via the Pennsylvania from Mount Morris to Rochester. The plaintiff boarded the train and had traveled beyond Binghamton, N.Y., when he was told by the conductor that he would not get to Rochester that day on that train, but that he could do so by leaving the train at Bath, N.Y., and taking a train over the Erie. The plaintiff left the train at Bath, N.Y., took the train over the Erie and arrived at Rochester and testified that he was "three-quarters of an hour to an hour later than the train I had been informed I would arrive there by the ticket agent of the D., L. W. Railroad Company." The plaintiff sued to recover the damages which he claimed he sustained by the delay. These damages he estimated in his bill of particulars to amount to $497. The items of this claim are made up as follows:
Pullman seat, railroad fare and total expenses ......... $47 Loss of one day's time ................................. 50 Loss sustained by reason of inability to reach Rochester in time to close a contract wherein he would have realized a profit of at least ..................... 400 _____ Total ............................................. $497 =====
The plaintiff, over the objection of the defendant, was permitted to introduce evidence in support of the elements of damage set forth above. The court below awarded judgment for the plaintiff for ninety-seven dollars and twelve dollars costs. Evidence was presented to prove that the cost of transportation over the Erie from Bath to Rochester was one dollar and eighty cents.
The plaintiff was entitled to recover the damages which naturally and ordinarily follow as a proximate result of the breach of contract. He is not entitled to recover for special damages he may have sustained by reason of the existence of peculiar circumstances, unless he can show that such peculiar circumstances were within the contemplation of the parties to the contract of transportation at the time that it was made. There is no evidence in the record to show that the defendant had any knowledge as to the contract which the plaintiff contemplated entering into at Rochester, or as to the alleged peculiar circumstances by reason of which the special damages were sustained. Miller v. King, 166 N.Y. 394; Miller v. Baltimore Ohio R.R. Co., 89 A.D. 457; Rose v. King, 76 id. 308; Stewart v. Baltimore Ohio R.R. Co., 88 N.Y.S. 377; Katz v. Cleveland, C., C. St. L.R.R. Co., 46 Misc. 259. It follows from these authorities that, upon the evidence presented in this case, the plaintiff was only entitled to recover the sum of one dollar and eighty cents, the cost of transportation from Bath to Rochester.
The judgment is modified by reducing it to one dollar and eighty cents and, as modified, affirmed, with costs to the appellant.
GILDERSLEEVE and MACLEAN, JJ., concur.
Judgment modified and, as modified, affirmed, with costs to appellant.