| Ill. | Mar 30, 1896
delivered the opinion of the court:
On Sunday, July 22, 1894, Charles F. Dumser went to St. Louis on an excursion train of appellant, from Broad-well, Illinois. The train was run from Bloomington, Illinois, and was to return on the evening of the same day. In the evening he got on the train at St. Louis to return, but could not get further than the platform on account of the crowded condition of the cars, and in passing through a tunnel he was probably overcome by the gases, smoke and vapor, and was thrown or fell off, and injured so that he died soon after. Appellee brought this suit as his widow, by virtue of a statute of the State of Missouri giving her a right of action, and recovered $5000. The judgment has been affirmed by the Appellate Court.
It was shown at the trial that defendant’s railroad terminated at the junction in East St. Louis, and that the track from that junction across the bridge and through the tunnel to the depot in St. Louis was owned by the Terminal Railroad Association of St. Louis, composed of four different railroad corporations, and it is complained that the court refused instructions numbered 5 and 6, asked by defendant, to the effect that defendant was not liable for any injury to the deceased while riding over the line of the terminal association.
The ticket purchased by the deceased was as follows: "Issued by Chicago & Alton R. R.—Special Excursion Ticket.—Good for one first-class passage to St. Louis and return, only on presentation of this ticket with coupon attached, subject to the following contract:” Here followed conditions, among which were these: “2d.—It is good for going and returning passage only on special train, Sunday, July 22, 1894.” To this ticket were attached four coupons, each marked, “Issued by Chicago &. Alton R. R.” On the margin of each was written, “St. Louis and return.” Two were for use on the defendant’s line and two for the Terminal Railroad Association, between St. Louis and East St. Louis. It is urged that this ticket was, in legal effect, a receipt for the fare from Broadwell to St. Louis, Mo., and return, and a contract between the deceased and defendant designating the lines of road over which he should ride, and that defendant was the agent of the terminal association, without responsibility for the negligence of the officers or servants of that association. It is true that the mere sale of a ticket over successive roads does not, ordinarily, import a contract with the seller to carry the passenger beyond the line of its own road, but that the seller of the ticket is the agent of the other road or roads. (Pennsylvania Railroad Co. v. Connell, 112 Ill. 295" date_filed="1884-10-31" court="Ill." case_name="Pennsylvania Railroad v. Connell">112 Ill. 295; 2 Redfield on Railways, 227.) But a company selling such a ticket may bind itself to be responsible for the entire route. Ordinarily a ticket is not a contract, but is a means adopted for convenience to enable the persons in charge of trains to recognize the holder as entitled to passage, and to be taken up by the conductor or ticket collector as his voucher. (Burdick v. People, 149 Ill. 600" date_filed="1894-04-02" court="Ill." case_name="Burdick v. People">149 Ill. 600.) In American and English Encyclopedia of Law (vol. 25, p. 1074) the law on this subject is stated as follows: “The settled opinion is, that a passage ticket, in the ordinary form, is merely a voucher, token or receipt, adopted for convenience, to show that the passenger has paid his fare from one place to another, and does not constitute the contract of carriage, although it often does have upon it some condition or limitation which enters into and forms a part of the contract. Accordingly, it is admissible to prove by parol evidence the terms of the contract in fact entered into between the carrier and the passenger.”
In this case it was shown that the defendant advertised the excursion over its road by mammoth posters and by hand-bills and advertisements. The posters were as follows:
SUNDAY, JULY 22 1894.
Grand Low Rate Excursion
BY SPECIAL TRAIN
TO ST. LOUIS
AND RETURN, VIA THE
CHICAGO & ALTON R. R.
Fare for the Round Trip, only $1.50.
Among the many attractions in St. Louis on Sunday, July 22, 1894, will be the great game of
BASE BALL,
ST. LOUIS vs. CHICAGO.
NATIONAL LEAGUE.
For particulars of special train service, see small bills. Ask your local Chicago & Alton ticket agent for tickets and further particulars.
James Charlton,
General Passenger and Ticket Agent, Chicago, Ill.
The newspaper advertisements announced a grand, low-rate excursion to St. Louis by special train, via the Chicago and Alton railroad, calling attention to the low fare and the great attractions in St. Louis on that Sunday, so that everybody could suit his or her taste in the wide diversity from the quiet, restful, beautiful parks and gardens, to horse races, theaters, and the great base ball game between the Chicago and St. Louis national league clubs. Other posters illustrated a game of base ball, in which it was stated that the Chicago and Alton Railroad Company would sell excursion tickets at $1.50 to St. Louis and return; and the hand-bills gave a timetable for going and returning, together with the Sunday attractions in St. Louis, such as base ball, beer gardens, band concerts and steamboat excursions. Neither in the time-table nor in any of these advertisements was there any information of the existence of a terminal association at St. Louis, or that the defendant did not assume the entire responsibility of the excursion from first to last. The only place where anything appears concerning that association is in the instructions given to defendant’s agents and in the ticket delivered to the deceased. Neither the public nor the deceased had any notice of any limitations on defendant’s responsibility, or that it would not be in charge of the excursion train until it reached St. Louis, or on the return from that place. By the time-table, St. Louis appeared as a station of defendant’s railroad as much as any other station there advertised, and the ticket, when received, did not limit any liability created by the proposition of defendant to run the excursion train to St. Louis and return, which was accepted by the deceased by the purchase of his ticket. When the train reached the bridge junction at East St. Louis, defendant’s engine was taken off and an engine of the terminal association pulled the train across the bridge to the depot in St. Louis. A ticket collector of the terminal association also came into the cars and took up the coupons for that association. This was the only change in the management of the train. The brakemen and porters remained in the cars, closed the windows before going through the tunnel, and performed the same duties as before. In the depot at St. Louis the train was put on a track designated as defendant’s track. The defendant’s brakemen and porters assisted passengers upon the train and superintended the loading for the return. These employees were paid by the month by defendant. All that was done by the terminal association was to haul the train and collect the tickets while on that part of the road. And this is the regular method of transacting the business: the regular train crews of defendant go with the trains to and from the depot in St. Louis, and perform their usual services, with the exception of taking up the tickets. This evidence came very far from establishing that the terminal association was an independent, separate line of railroad. It is apparent that defendant, under some business arrangement, placed these trains under the control of this association of railroad corporations for the purpose of having them hauled over the bridge and through the tunnel to the depot.
The fifth instruction above referred to, which was refused, told the jury that the defendant was in no way responsible for an injury to a passenger riding over the trains of the terminal association, notwithstanding the posters read in evidence. The posters tended to show a contract, under which defendant would be so liable, and for that reason, as well as because the instruction was not applicable to the facts, it was properly refused.
The sixth instruction relieved the defendant from liability, notwithstanding its contract and the evidence as to the relation of defendant and the terminal association, on the ground, merely, that the terminal association owned the track and managed and ran the train from the depot in St. Louis to the bridge junction. As defendant could be, and the evidence tended to show that it was, made liable, as before stated, the instruction was wrong.
It is also complained that the court gave instructions as to the liability of defendant without limiting such liability to its own line. We think that there was no evidence fairly tending to relieve defendant from responsibility for the negligence charged in the declaration, during the entire trip, and it was not necessary that any such instruction or limitation should be given or made.
It is also objected that the court modified instruction numbered 3, asked by defendant. This instruction, as asked, declared that the deceased, under certain circumstances, would be chargeable with negligence for riding on the platform of the car. The modification required, as the ground of such negligence, that the jury must believe that the deceased knew, when he came to take the train, that it was so crowded that he could not get inside the car. A question of negligence is ordinarily a question of fact, to be tried by the jury. An inference of negligence did not necessarily result from the statement of facts in the instruction, and it might have been properly refused. The instruction as given, with the modification, was fully as strong as the court would be authorized to state negligence as matter of law, and there was no error in the modification.
It is also complained that the court stated the degree of care required of defendant too strongly, and that there is a difference between the degree of diligence required in furnishing cars and conveyances for the safety of passengers, and the care required for their safety in other respects. We see no difference in that regard. The instructions would not make defendant liable if it was not reasonably possible or practicable to furnish cars in case of a crowd whose numbers exceeded all reasonable anticipation. The duty was not stated to be absolute or to involve any impossibilities, but the defendant was required to exercise the same degree of care, vigilance and forethought in that regard as in its other relations to its passengers. We see no error in so stating the rule.
It is insisted that there was a variance between the proof and the allegations of the declaration, but that question was not raised in the trial court and will not be noticed here.
The judgment of the Appellate Court has settled the questions of fact, and, there being no error of law, the judgment will be affirmed.
Judgment affirmed.