Opinion
January, 1907.
Strong Cadwalader (Arthur C. Patterson of counsel), for appellant.
House, Grossman Vorhaus (Louis J. Vorhaus, of counsel), for respondent.
This action is brought to recover damages on the ground that the train carrying plaintiff to New Orleans arrived there two hours and twenty minutes behind schedule time, and thereby prevented plaintiff from playing at a concert, at a loss of $400, the price he was to receive. The train was two hours and seven minutes late in arriving at Nashville, where plaintiff got onto it, having been delayed two hours and fifteen minutes by a washout. The justice gave judgment for plaintiff. Defendant appeals. The obligation of a carrier to run its trains in conformity to its schedule is not an absolute and unconditional one, for it will not be liable for want of punctuality or failure to comply with its published schedule where such failure is not due to its negligence. The mere taking of a ticket does not of itself prove a contract upon the part of the carrier, or impose upon it the duty to have a train ready to start at the time at which the passenger is led to expect it. In order to maintain an action for its failure to do so, he must show the breach, either of an express contract or of a legal obligation created by its published time tables or notices; but the advertisement of schedules or time tables does not impose upon the carrier an absolute and unconditional undertaking to carry the passenger as he may be led by them to expect. Hutch. Carriers, § 607; 5 Am. Eng. Ency of Law (2d ed.), 586. Plaintiff seeks to show a special contract to carry plaintiff to New Orleans on the schedule time. He claims he told the ticket agent of his concert and the necessity of being in New Orleans at eight-thirty p.m.; that the ticket agent told him the train was late, but would make up for the lost time, and that it generally arrived on time; and that thereupon plaintiff bought the ticket; that he also told this to the conductor of the train when the latter took his ticket, and that the conductor repeated substantially the same thing. We do not think the ticket agent had any authority to make a special contract for defendant, nor had the conductor. 116 F. 281; 66 id. 712; 84 S.W. 852. Their declarations were mere expressions of opinion as to the making up of lost time. The plaintiff knew the train was two hours and seven minutes late when he got on board. The mere fact of the delay does not fasten the charge of negligence on defendant, as there is no proof that the washout was due to any negligence of defendant.
We think the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.
GILDERSLEEVE and BLANCHARD, JJ., concur; DAYTON, J., concurs in result.
Judgment reversed and new trial granted, with costs to appellant to abide event.