Opinion
(Filed 9 May, 1905.)
Railroads — Schedule of Trains — Rights of Passenger — Misinformation by Agent — Burden of Proof — Damages — Impeachment of Witness-Evidence.
1. Under section 1963 of The Code, the printed schedule of trains is an offer, which is accepted by a person when he asks for a ticket, and he has a right to be transported by the first train stopping at his destination.
2. If a train arrives after its schedule time, or misses connection, or delays a passenger at his destination after the schedule time, unless the delay is caused by no fault of the carrier, the passenger has a right to recover compensation for the loss of time and actual expenses.
3. Where the plaintiff missed his train, by reason of incorrect information furnished by the ticket agent at the time he applied for a ticket, an announcement made later in the waiting-room did not cure the misinformation given to the plaintiff, unless the correction was brought to his knowledge.
4. Where a ticket agent of the defendant gave misinformation which misled the plaintiff, and refused to sell him a ticket, the burden was upon the defendant to show that he gave the plaintiff correct information in time to enable him to take the train.
5. The plaintiff, who missed his train by misdirection of the defendant's agent and his refusal to sell him a ticket, can recover for any injury proximately caused by being put out of the station into the cold weather while waiting for the next train.
6. It is competent, to impeach the plaintiff, to show by him that he had been convicted of forcible trespass.
7. The plaintiff's denial that he had been charged with larceny is conclusive, and it is incompetent to introduce contradictory evidence.
ACTION by Charles Coleman against the Southern Railway (352) Company, heard by O. H. Allen, J., and a jury, at January Term, 1905, of MECKLENBURG From a judgment of nonsuit, the plaintiff appealed.
A. B. Justice for plaintiff.
W. B. Rodman for defendant.
On 5 February, 1905, about 8:30 a.m., the plaintiff went to the defendant's station in Concord to take the southbound train for Harrisburg. Two southbound trains were, according to schedule, expected soon thereafter; the first (which had been due since 7:23), No. 33, was a through train which did not stop at Harrisburg; the other, No. 11, due at 9 :10, was a local passenger train which did stop there. The plaintiff went to the ticket window and asked for a ticket; the agent told him the through train was ahead and he could not sell him a ticket on the local train till the through train passed. The plaintiff then went out and looked at the bulletin-board and found that the local train would come in first. He went back and told the agent, who replied that the bulletin was wrong and that the through train had gotten ahead. The agent testified that "When I saw No. 11 come in first I stepped out of my office door and `hollered' out that No. 11, the local train, was ahead, and stepped back in my office and got my mail (353) to put in the baggage car. There wasn't any one at the ticket window." He further said that the plaintiff was not present at that time. He does not testify that he made any effort to find the plaintiff and correct his refusal to sell him a ticket by the train first arriving. The plaintiff testified that he went out on the platform and was there when the train arrived; that the agent was then in three feet of him, but gave him no information that this was the local train, and relying upon the twice given information that this was the through train, and having no ticket, he did not try to get aboard; but he and the agent both say that as soon as the first train left the plaintiff went to the agent again to buy a ticket, when he was told that the local train had passed. He was told that he could get a ticket to Harrisburg by the local freight train, but he could not learn what time it would leave, but it did leave about 12 :30. About 10 :30 the agent closed the station and put the plaintiff out (though he asked to be allowed to remain) and he stood around in the cold on his crutch and cane till the 12 :30 train left, on which the plaintiff went to Harrisburg. The plaintiff's positive testimony that he was thus put out is not denied by the defendant's witnesses, for Kimball swore that "he did not remember the occurrence of that morning" and was not ticket agent at that time and "did not know anything about the facts that Coleman had testified to, of his own knowledge," and Carson, when asked if he put Coleman out, replied, "Not that I remember," adding, he thought he would have recollected it. He also says that he closed the office and left after the 10 :30 train passed going north, and that the plaintiff applied to him again for a ticket after No. 11 had passed. He bought his ticket before the office was closed. Neither of these witnesses could recall the weather that day. Other witnesses for the defendant, on cross-examination, corroborated the plaintiff as to his being on crutches and complaining at the time of the refusal to sell him a ticket. There is evidence that he had (354) a burn on his leg, necessitating the use of the crutch and cane, in which sore he took cold by reason of being turned out of the station and suffered serious injury from his exposure and great pain for many weeks.
It goes without saying that this is a case of grave disregard of the rights of one of the traveling public. The defendant is not a person or private corporation which can do business when and with whom it pleases, but it is in the enjoyment of a very profitable public franchise which it can only exercise by reason of a grant from the public of the right of eminent domain and subject to control of its rates and management by the State, and even to a repeal of its franchise at the will of the Legislature. The Constitution, Art. VIII, sec. 1. The Code, sec. 1963, provides that "every railroad corporation shall start and run their cars for the transportation of passengers and property at regular times to be fixed by public notice and shall furnish sufficient accommodation for the transportation of all such passengers and property as shall within a reasonable time previous thereto be offered for transportation . . . and shall be liable to the party aggrieved in an action for damages for any neglect or refusal."
It was not optional with the defendant whether and when it should transport the plaintiff, like a merchant selling goods. The printed schedule is an offer which was accepted by the plaintiff when he asked for a ticket, and he had a legal right to be transported by the first train stopping at Harrisburg. If the train arrives after schedule time or misses connection, or delivers a passenger at his destination after the schedule time, unless the delay is caused by no fault of the carrier, the passenger has a right to recover compensation for his loss of time and actual expenses. This has been often held. Purcell v. R. R., 108 N.C. 417, cited and affirmed in Hansley v. R. R., 117 N.C. 570, 571. "He can recover loss of time and expenses, such as hotel bills, incurred in waiting for the other train." 2 Sedg. Dam., sec. (355) 862; 2 Harris Dam., sec. 545; R. R. v. Carr, 71 Md. 135; Yonge v. S. S. Co., 1 Cal. 353; Bishop Noncont. Law, secs. 74, 1059. Indeed, "the mere inconvenience" is ground for damage. R. R. v. Carr, supra, and cases there cited. In R. R. v. Birney, 71 Ill. 391; Heirn v. McCoughan, 32 Miss. 17, and Purcell v. R. R., supra, the plaintiff recovered damages because the train, scheduled to stop at the station, ran by without stopping. In Sears v. R. R., 94 Mass. (12 Allen), 433; R. R. v. Bonaud, 58 Ga. 180, and Denton v. R. R., 5 Ellis and B., 860, the plaintiff recovered damages because he went to the station to take a train scheduled to leave at that hour, but which did not go out. There are many similar cases. 5 A. E. (2 Ed.), 585.
In the present case, the plaintiff twice applied for a ticket by that train, and was refused. We are not called upon to question the rule that tickets should be sold only for the next train. Here, the agent refused to sell the plaintiff a ticket for the "next train." It is immaterial to him whether this was the negligence and indifference of this particular agent or whether he was misled by the negligence of some other agent of the defendant. The plaintiff had a right to rely upon his representation. R. R. v. Atchison, 47 Ark. 74; 1 Fetter on Passengers, sec. 305.
There is no evidence that the agent tried to seek out the plaintiff and correct the error, nor that the plaintiff heard the announcement (if made) in the waiting-room. Indeed, the announcement, according to the agent's testimony, was only made after he saw the train come in, and he did not go back to the ticket window, and there was no opportunity for the plaintiff to get a ticket if he had been present.
The testimony of the defendant is that the plaintiff went off towards Cannon's Mill; but this apparently was after he was refused a ticket by the second train. Both the plaintiff and the agent concur that (356) immediately after No. 11 left, the plaintiff a third time applied for a ticket. The agent testified that the plaintiff was not present when he made his hurried announcement that No. 11 had arrived. There was no reason he should be, after the agent's statement that he could not get a ticket "till the next train had passed," and it is admitted that immediately after the first train passed he did come up and ask for a ticket "by the next train."
The charge of the court that "if afterwards the agent made the announcement (that No. 11 had arrived) in the station where passengers had a right to be at that time, and the plaintiff either did not hear him or was absent, and did not apply for a ticket accordingly after his announcement was made, then the defendant would not be guilty of negligence, " was clearly error. The plaintiff was not required to be in the waiting-room, since he could not get a ticket till after the first train passed, and an announcement then could not cure the misinformation given to the plaintiff unless the correction was brought to his knowledge. The agent's testimony is that it was not, for he says the plaintiff was not there.
The court further erred in telling the jury that the burden upon this point was upon the plaintiff. He charged immediately after the above quotation: "So that it becomes important, in the beginning, to ascertain how it was. The burden is upon the plaintiff; the burden is upon him to show this by the greater weight of the evidence." The agent having upon his own testimony given the misinformation which misled the plaintiff, and refused to sell him a ticket, the burden was upon the defendant to show that he gave to the plaintiff correct information in time to enable him to take the train.
Further, when the agent had knowledge that the plaintiff had thus missed his train, the plaintiff had a right to remain in the station and he kept comfortable till the next train left. It was brutality against the plaintiff's protest, to turn him out in the cold with a recent (357) wound, when the agent saw he was leaning on his crutch and cane and knew that by his misinformation the plaintiff had been left there, more especially, if it is true, as the plaintiff testified, that the freight depot was also closed, and the doors of the passenger coach on the local freight train were locked, and not knowing when it would leave, he could not go on his crutch and cane back to the town, which is some distance off, for shelter. For such tort he is entitled to reasonable and just damages for any injury of which such conduct was the proximate cause, and the plaintiff is entitled upon the defendant's own testimony to have this inquired of by a jury.
The plaintiff may be an humble individual and the damages may or may not turn out to be slight. But in the history of English law many important rights have been declared in instances of obscure complainants, and where the wrong was not of great note by reason of its effect in that particular case.
For this disregard of the right of the plaintiff to be transported by the first train, and to be turned out into the inclement weather from the defendant's waiting-room after having been thus misled by its agent into losing his train, he has no remedy but in the courts of his country. It is the good fortune of the defendant that its liability for the misconduct of its agent in turning out a passenger entitled to its protection should be declared in a case where the consequences of such misconduct did not prove more serious, as in many cases they might be, as where the delayed passengers are infirm, feeble, or women and children. The traveling public have an interest in knowing clearly what are their rights when detained beyond schedule time by delays of the train, and they have a right to know that their comfort while waiting for the next train is protected by the law.
"Where a station building has been erected by a railroad company to which passengers are invited while waiting for trains, a common-law duty rests on the company to provide reasonable (358) accommodations for those who accept its invitation." 1 Fetter Carriers of Passengers, sec. 250. This Court, while holding that thirty minutes before the time scheduled for the arrival of a train might be a reasonable time to open a waiting-room, added that the case would be different with through passengers and delayed trains. Phillips v. R. R., 124 N.C. 123. It is neglect of duty to allow the waiting-room to become uncomfortably cold (2 Wood Railroads, 1165) or to fail to keep it lighted. Bishop Noncontract Law, sec. 1086. In R. R. v. Cornelius, 10 Texas Civ. App. 125[ 10 Tex. Civ. App. 125] [ 10 Tex. Civ. App. 125], where the plaintiff was detained at the station by the train being delayed, the Court held that she could recover for injury to her health caused by the fire being permitted to go out. The railroad company is liable to passengers waiting for a train for injuries sustained from failure to keep its waiting-room comfortably heated. Boothly v. R.R., 66 N. H., 342. For a stronger reason, the plaintiff who missed his train by misdirection of the defendant's agent and his refusal to sell him the ticket can recover for any injury proximately caused by being put out of the station, into the cold weather, while waiting for the next train, and possibly for the indignity of such treatment, under these circumstances, also.
The plaintiff was not afforded an opportunity to have his testimony either credited or "discredited" by the jury, for when the judge told them that if, after refusing to sell the plaintiff a ticket, the defendant's agent announced the arrival of the train at the station, and "the plaintiff either did not hear him or was absent" (neither of which the plaintiff denied), and accordingly did not buy a ticket, that "the defendant could not be guilty of negligence," he effectually withdrew the case from the jury. This is the chief error, that the jury was not allowed to pass upon the controversy, by reason of the erroneous instruction.
(359) It was competent, to impeach the plaintiff, to show by him that he had been convicted of forcibly trespass. His denial that he had been charged with larceny was conclusive, and it was incompetent to introduce contradictory evidence. The defendant's brief opens with reference to the plaintiff having received the burn on his leg while drinking. This could hardly have been competent to impeach his veracity, and still less was it competent (as the prominence given it seems to indicate) as a defense of the wrong done him by the defendant in turning him out, regardless of the weather, to hobble around on his crutch and cane. The State had punished him for his violation of law, and possibly the burn was punishment enough for the drinking. Certainly, the defendant had no jurisdiction to add further punishment by exposure to the weather. He was not outlawed. He had offered and paid his money for transportation over the defendant's road and was entitled under the law to as good treatment at its hands as any one else.
Reversed.