102 N.Y.S. 548 | N.Y. App. Term. | 1907
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
We think the judgment should he 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.