Louisville & Nashville Railroad v. Fuqua

65 So. 396 | Ala. | 1914

McOLELLAN, J.

Action by a ticket passenger against the carrier for negligent breach of duty in carrying the passenger beyond her destination. There were three counts, but those numbered 2 and 3 were charged out at defendant’s instance. The right, under the evidence, to recover exemplary damages was denied plaintiff by instructions given the jury. The fact that plaintiff was carried by her destination, stipulated in her ticket, Avas admitted. Her destination, Magella Station, Avas a flag station about three miles from the city of Birmingham.

In the absence of binding (upon a ticket passenger) rule of the carrier, known to such passenger requiring such passenger for a flag station to notify the conductor of the train of their ticket-stipulated destination before arrival thereat, there is no primary obligation on such ticket passenger to notify the conductor of suck passenger’s destination. In the absence of suck rule, so known or promulgated as to bind the passenger, the ticket sold by the carrier to the passenger is conclusive notice to the carrier of the fact of suck passenger’s destination.—San Antonio Ry. Co. v. Dykes (Tex. Civ. App.) 45 S. W. 758; M., K. & T. Ry. Co. v. Glass, 46 Tex. Civ. App. 126, 102 S. W. 447; C. R. & C. R. R. Co. v. Lyon, 89 Ga. 16, 15 S. E. 24, 15 L. R. A. 857, 32 Am. St. Rep. 72; 2 Hutchinson on Carriers, § 1126, pp. 1327, 1328; Pence v. L. & N. R. R. Co. (Ky.) 64 S. W. 905. The carrier, without such a rule in force cannot claim exoneration from liability, in carrying a ticket passenger beyond destination, because of the failure or omission of the conductor of the train to ascertain such passenger’s destination. There are expressions in the majority opinion in Seale’s Gase (160 Ala. 584, 49 South. 323; 172 Ala. 480, 55 South. 237) that must be taken as explained by the fact that there the passenger did not enter the train at a particular place regularly used for taking on passengers.

Furthermore, in the instant case it was shown by the conductor that it was the flgman’s duty to at least inquire of passengers entering the cars of the carrier their destination, and to advise the conductor of those entrained- for “a short station like Magella.” The evidence shows 'without dispute that the flagman did not observe this duty when plaintiff entered the train at the station in the city of Birmingham at a time when the flagman of this train was at the place of entrance and passengers were being received for transportation. The flagman testified that-three or four ladies came up to enter and he asked, “Where are you all going?” One of the ladies replied that she was going to some point near Bessemer. The flagman states that the plaintiff made no reply. It is manifest that this general inquiry and the response made by one only of the ladies did not invite the flagman to assume, much less justify the flagman in assuming, that the single, individual response he affirms he got indicated the destination of Mrs. Fuqua.

The train reached and passed Magella before the conductor entered, in order, the coach in which plaintiff was located. This fact, as stated, was immaterial. The sale of .the ticket to plaintiff concluded the defendant from denying or questioning the fact of its knowledge of this plaintiff’s destination, by which she was negligently carried. Under the evidence there was no error in giving the affirmative charge, with hypothesis, for plaintiff. It did not trench upon the measure of the recovery.

It is insisted that the verdict and judgment for $140 represents an excessive exaction. There is permissible argument for and against this view. The solution of the question thus made is not free from doubt. In such circumstances, under the evidence here shown, we are not convinced that the amount manifests such a yielding by the jury to passion or prejudice as would warrant this court in disturbing the judgment.

The judgment is affirmed.

Affirmed.

All the Justices concur.