54 F. 646 | 5th Cir. | 1893
On the 7th August, 1890, Mrs. Florence C. Dupre, the defendant in error, accompanied by her husband, got on the Meridian train of the Alabama &. Vicksburg Railway, a part of the Cincinnati, New Orleans & Texas Pacific Railway Company’s system, at Jackson, Miss., to go to Akron, Ala. They first entered the day coach, but as Mrs. Dupre was enceinte, about two months advanced, and had experienced one miscarriage, they concluded to take the sleeper, and went back-to it, where they were met by the porter, seated, and told they would have to wait until the conductor came around. This was about 5:30 P„ M., and the train on schedule time would arrive at Akron about 1:30 A. M. following.
On May 27, 1891, to the June term of the circuit court for the state of Mississippi, Hinds county, first district of the circuit court, Sirs. Dupre, the defendant in error, brought her action against the plaintiff in error, the Mann Boudoir Car Company, alleging that, on the occasion mentioned, she, accompanied by her husband, went into the sleeping car, and asked for a lower berth in said sleeper. That then and there the conductor sold her a lower berth for two dollars, which her husband paid the conductor, and the conductor assigned her a particular berth as the one designated and selected for her, and shortly after, the berth, by the conductor’s direction, was properly arranged so that she could retire, which she accordingly did, it having been explained tó the conductor that she was unwell and deli
The distinguished counsel who appeared for the plaintiff in error in this court, and made an oral argument, has in Ms printed brief urged four propositions:
“(i) It was error in the lower court to admit the testimony of the plaintiff and her husband, contradicting the declarations appearing on the face of the berth check as to the berth bought by the plaintiff, and in refusing our instruction to return a verdict for the defendant.
“(g) The circuit court erred in refusing our request to exclude from the consideration of the jury, as a basis of damages, the uterine pains and miscarriage suffered by the plaintiff after she left the car of the defendant at Me-, ridian.
“(3) The circuit court erred in refusing to give section 4 of instruction No. 3 asked for by the defendant company.
“(4) The circuit court erred in refusing to give the instruction asked by the defendant bearing on the contributive negligence of the plaintiff.”
Only the first of these propositions relates to errors which were properly saved under the well-settled rules announced by the supreme
“While it may be admitted, as a general rule, that tho contract between the passenger and the railroad company is made up of the ticket which he purchases, and the rules and rogulaüons of the road, yet it does not follow that parol evidence of what was said between (lie passenger and the ticket seller from which he purchased his ticket at the time of such purchase is inadmissible, as going to make up the contract of carriage, and forming a part of it. ⅛ the iirst place, passengers on railroad trains are not presumed to know the rules and regulations which are made for the guidance of tho conductors and of tho employes of railroad companies, as to tho internal affairs of tho company, nor are they required to know them.” Railroad Co. v. Winter's Adm'r, 143 U. S. 60, 12 Sup. Ct. Rep. 356.
¾0 more are they presumed to know the meaning of the detached words, abbreviations, figures, punches, blanks, and pencil marks, that can only be correctly read or interpreted by the rules and regular tions which are made for the guidance of the conductors and of the employes of sleeping-ear companies as to the affairs of the company, nor are they required to know them. The conductor of the sleeping car does not need this berth check to evidence to him anything expressed on it, with which the passenger lias any concern. The conductor is the initial party to it, and remains constantly present with the other party, until its every function which affects the passenger should be completely discharged. The parties necessarily remain together during the whole period of the life of the berth check, and as, necessarily, not as much as a full legal day can intervene between the furnishing of it and that complete delivery of the berth itself, which surely should be as conclusive as the mystic symbols on the berth check. Each car has its conductor and porter that go with it through its whole trip, and it can receive only that limited number of passengers which an experienced conductor can readily identify and keep distinguished in his mind. Jn our opinion there is no necessity of the sleeping-car service, or sufficient reason shown or believed by us to exist, for giving the berth check the conclusive force as evidence insisted on by the plaintiff in error. Its first proposition therefore cannot be sustained.
The plaintiff in error’s second proposition rests on the theory that, unless it was apparent to a casual observer that Mrs. Dupre was enceinte, or that fact was made known to the servants of the com
The fourth proposition of plaintiff in error we cannot sustain because the requested charge to which it refers, if we have guessed correctly, (we are left by the proposition to guess,) — section 3 of instruction 3, — is too broad to have been given as requested. It relates to a feature of the case calling for a proper charge, — one not embraced in the court’s charge, — and' if it had been properly limited and freed from that coloring which the zeal of advocacy often gives to requested charges, should have been given.
The third proposition must be sustained. Section 4 of instruction RTo. 3, asked by the company, and refused, is as follows:
“If you find from the evidence that, by the standing order of the railroad company, all of the berths in ‘Letter B’ were reserved for Meridian passengers, and that the conductor of the defendant erroneously sold the lower berth in ‘Letter-B’ to the plaintiff; and you further find that, within a reasonable time before reaching Meridian,' he notified the plaintiff of his error, and at the same time informed her that the berth was reserved for, and had been taken by, passengers at Meridian; and you further find that the conductor offered the plaintiff the occupation of another berth in'the car, equal to the berth in ‘Letter B’ in accommodation; and you further find that the plaintiff refused to accept this other berth, and thereupon left the car without being compelled to do so by the conductor, — then I instruct you that the defendant -was not guilty of such a breach of the contract w-ith the plaintiff as would entitle the plaintiff to recover damages on that account.”
This charge we consider substantially sound, and applicable to the issues of fact and the evidence in the case, and either it should have been given as requested, or the judge of the circuit court should have charged the jury on the point, and substantially to the effect of this request. For the error in refusing this requested charge, and in failing to charge on the point indicated by this request, the judgment of the lower court must be reversed.
It is therefore ordered that the judgment of the circuit court be reversed, and the cause remanded, with directions to that court to award a new trial.