Opinion
No. 34588.
May 26, 1941.
1. CARRIERS.
A bus company was under no obligation to transport 13-year-old boy with any more care or consideration than adult passengers.
2. CARRIERS.
The duty of bus company to passenger was to exercise reasonable care to carry passenger to his destination within a reasonable time.
3. CARRIERS.
Where 13-year-old boy, upon arriving by bus at junction of bus line at which he was to change busses, was informed by defendant bus company's ticket agent that bus which he was intending to take would not come because highway was flooded, and was advised to go by train or hitch hike, there was no breach of company's obligation to boy, who had no money to continue journey by passenger train and who reached destination by stealing ride on a freight train, notwithstanding that bus actually arrived about three hours late and continued on to boy's destination.
APPEAL from the circuit court of Washington county, HON. S.F. DAVIS, Judge.
Farish, Keady Branton, of Greenville, and Stevens Stevens, of Jackson, for appellant.
The carrier must exercise ordinary care and skill to carry a passenger to his destination within a reasonable time, and if it does so it is not liable, in the absence of a special contract, for an unavoidable delay.
13 C.J.S., sec. 661; 10 Am. Jur. 94, secs. 1092-1094; Ala. Great Southern Ry. Co. v. Conner (Ala.), 151 So. 355; Central of Ga. Ry. Co. v. Wallace (Ga.), 80 S.E. 282, 49 L.R.A. (N.S.) 429; 52 A.L.R. 1332-1335.
There was no obligation on defendant's part to furnish a special bus or special means of conveyance from Winona to Greenville.
Houston, E. T. Ry. Co. v. Rogers (Tex.), 40 S.W. 201; Fitzgerald v. The Midland Ry. Co., 34 Law Times (N.S.) 711.
A common carrier must accept all who present themselves and demand transportation, so long as they are able to take care of themselves. The rule even applies to blind passengers.
Zachary v. M. O.R.R. Co., 74 Miss. 520, 21 So. 246; Zachery v. M. O.R. Co., 75 Miss. 746, 23 So. 434; I.C.R.R. Co. v. Smith, 85 Miss. 349, 37 So. 643.
In Gage v. I.C.R.R. Co., 75 Miss. 17, 21 So. 657, the court held that a common carrier was not liable for failing to furnish special attention for a seven-year-old child, accepted by the conductor, unaccompanied, the conductor not being authorized to bind the carrier to such an arrangement.
William Payne, of Greenville, for appellee.
A railroad owes small children such reasonable care and attention as the circumstances call for.
Y. M.V.R.R. Co. v. O'Keefe, 125 Miss. 536, 88 So. 1.
While the duty of the carrier to all passengers is the same in degree, the amount of care may vary with the age, sex, or bodily infirmity of the passenger, greater care being required, for example, in regard to children of tender years than is necessary as to adults, and if a passenger's sickness or disability is known to some employee in charge of the train or premises, it is knowledge to the carrier, and the care received by him should be commensurable with his infirmities.
10 C.J. 897, sec. 1330; Tri-State Transit Co. v. Martin, 179 So. 349, 181 Miss. 388.
Where a passenger has presented a proper ticket, or paid the proper fare, it is, as a general rule, the duty of the carrier to exercise a high degree of care to carry him safely to and discharge him at his destination; and a refusal or failure so to do will be a breach of contract for which the carrier will be liable in damages.
10 C.J., p. 803, sec. 1234, p. 821, sec. 1263, p. 835, sec. 1278; Taxicab Co. v. Grant, 57 So. 141, 3 Ala. App. 393.
The non-performance of the carrier's contract is not excused by act of God, where it may be substantially carried into effect, although the act of God makes a literal and precise performance of it impossible.
10 C.J. 832, note 10; R.C.L., p. 1043, sec. 496, p. 1093, sec. 544; A. V. Ry. Co. v. Purnell, 69 Miss. 652, 13 So. 472; Cormack v. N.Y., etc., R.R. Co., 24 A.L.R. 1209, 1213.
Argued orally by John Morgan Stevens, for appellant, and by William Payne, for appellee.
The appellant is a common carrier of passengers by means of motor busses over the public highways. One of its routes passes through Columbia, Jackson and Winona, Mississippi, and thence on north. Another is from Columbus to Greenville, crossing the other route at Winona, Mississippi. The appellee, a boy thirteen years old, purchased a ticket from the appellant at Columbia which entitled him to transportation from Columbia via Jackson and Winona to Greenville. He was transported safely from Columbia to Winona, where it became necessary for him to change from the bus in which he was then being carried to one going west from Columbus to Greenville. He arrived at Winona at 2:09 P.M., a westbound bus of the appellant was due to pass at 2:20 P.M., and was scheduled to arrive in Greenville at 5 P.M. The flooding by high water of the east and west highway from Columbus to Greenville near Starkville, east of Winona, prevented the appellant's westbound bus on that route from arriving at Winona on time. It did succeed however in reaching Winona between 5:30 and 6 P.M. of that day, and then continued on to Greenville. When the appellee disembarked at Winona, he asked the appellant's ticket agent (a woman) "How long it was going to be before the bus comes?", to which she replied that "It would not come" on account of the high water, hereinbefore referred to. He then asked her how he "was going to get to Greenville." She suggested that he catch a train over a railroad running from Columbus to Greenville through Winona, to which he replied that he had no money, and she thereupon suggested that he "catch a ride" from an automobilist, and directed him as to how to go to the highway for that purpose. Failing to catch such a ride, he, at the suggestion of a "hobo," with whom he came in contact, stole a ride to Greenville on a freight train, in the course of which he became frightened, and suffered some minor hardships, arriving in Greenville shortly after midnight and remained in the freight car until morning. The railroad train was also delayed by this same high water but did pass Winona on its way to Greenville late in the afternoon of the same day. There seems to have been some understanding or custom, the exact nature of which does not appear, according to which the unused portion of the appellee's ticket from Winona to Greenville would have been accepted by the railroad for passage over its trains from Winona to Greenville. This was not known to the ticket agent at the time of this occurrence, and for that reason she did not advise the appellee thereof. She did tell him that the appellant would refund to him the price of the unused portion of his ticket, and advised him how to proceed to collect it.
One of the appellant's complaints is that the court below should have granted its request for a directed verdict. The appellant was under no obligation to the appellee to transport him with any more care or consideration than was due by it to adult passengers; Gage v. Illinois C.R.R. Company, 75 Miss. 17, 21 So. 657; which duty was to exercise reasonable care to carry him to his destination within a reasonable time. It was not responsible for the highway being obstructed by high water and would not have been liable to the appellee for any delay caused thereby which it could not reasonably have avoided. As the event determined, had the appellee waited at Winona for the appellant's next westbound bus, he would have been entitled to no compensation for the delay that would have resulted in his reaching Greenville. No breach of the appellant's obligation to the appellee here occurred. True it is that its ticket agent did not suggest that he wait for a later bus, but that was unnecessary for the appellee must be presumed to have known that he had this right. Her suggestion to him to catch a ride to Greenville in no way constituted a repudiation by her of the appellant's obligation to carry him from Winona to Greenville. It was a mere suggestion of a way by which he might go to Greenville without waiting for the bus. The appellant's request for a directed verdict should have been granted.
Reversed and judgment here for appellant.