*1 IN THE SUPREME' COURT. V. PURCELL RAILROAD. ALBERT v. RICHMOND AND PURCELL DANVILLE RAILROAD
COMPANY. — — — Carrier Common Railroad Contract—Tort —Damages Negligence Pleading—Jurisdiction. — duty provide It of a carrier
1. common to sufficient means of transportation and passengers for all which its business it, naturally brings an greater to unusual occasion which a temporarily demand it is made will not relieve it of the if, obligation foresight, the use of reasonable it could have provided for. person injuries by 2. A who has sustained reason of the failure of a company provide proper transportation railroad to means operate required by (The 1963) may its trains statute § Code. contract, bring tort, an in independent action on of the statute. simple negligence, tort is , 3. If the the result of will be restricted willful, compensatory; such as are but if it or committed gross negligence, punitive with such as show circumstances dam- may given. ages be plaintiff alleged complaint testimony in 4. Where and offered tending purchased that he agent show a ticket from defendant’s station the time at before advertised for the arrival and departure place, at that get its trains readiness aboard, by, making ran stop, although the train no effort plaintiff: (1), complaint had room its cars Held does set tort, Superior a cause forth which the 'Court had action ; jurisdiction (2) an was entitled to instruction that, true, jury if the the facts found he would be punitive damages, entitled absence sufficient excuse shown the defendant. 1890, Term, Fall tried at of Alamance action, Civil J, Court, MacRae, presiding*. Superior appeal. material are— portions 1889, “That on the 21st day September, from defendant’s River a ticket Haw agent purchased TERM, with the *2 and the defendant contracted Burlington, thereby him on train as a to receive its plaintiff passenger Haw from River station to station, and for the Burlington as aforesaid; fare said ticket that it specified and was train and was good day only, purchased train due its western regular passenger Haw trip at an in the River hour early said 21st morning day 1889; that the received said plaintiff ticket and September, at the went at Haw upon platform River to the depot where the defendant is accustomed to place and receive dis- its before the time charge passengers, just published for the arrival defendant of its departure regular pas- train, which is due said senger passes about five depot o’clock every remained morning, or near upon said arrive, until the said train did which platform occurred six ; about o’clock a. m. that when the said train did arrive no it made at Haw River all, station at stop but ran said station with great speed, allowing any passengers get it, and leaving plaintiff standing remaining at said to his depot, great disappointment, annoyance $500, the sum of and hence damage, he this suit. brings Wherefore, demands plaintiff for the sum of and for the costs'of $500 this action.” ' The material parts answer are—(cid:127) “ That the train is cars, a composed combina- car, tion one end of which is used as a car, second-class one first-class car and a Pullman that this train Sleeper; seldom carries more than seven eight outside of the passengers Pullman that on the Sleeper; the 21st morning day 1880, when this train September, reached Haw River it was crowded with to its full passengers that it capacity, have been unsafe to the aboard and passengers those desir- on at Plaw River to ing get and taken on stopped those proposing go crowd, which Burlington, as defend- believes, ant is informed and amounted to near one hundred IN THE SUPREME COURT. v. that the defendant was not of this unex- persons; apprised time to increase pected provide necessary them.” adequate carriage that the Defendant denies five hun- plaintiff damaged dollars, dred that it is informed and believes that says attend intending go Burlington circus, Robinson’s an exhibition there gave day, and that the loss to was the failure to see the only did not circus; that the circus until about two o’clock open p. off, m., and was four miles only public highway, was in condition, which at that season the best year River to led from Haw and the latter Burlington, place could have been reached said easily between highway *3 p. a. m and the hours of five o’clock two o’clock m. by any without or inconvenience loss. ordinary pedestrian Defendant further that the amount of recov- says, damage answer, erable under the circumstances set out in this (if which do not the face recov- appear .within erable at are of a Justice of the all), jurisdiction Peace, that this Court has no and of this action. jurisdiction
There evidence offered each party tending sup- their contentions. port respective asked the The Court that if plaintiff charge jury believed that the defendant its train at Mebane they stopped Graham, and received and and also at discharged passengers, there received twelve or fifteen and and dis- passengers three, room, two or and that there was charged standing at the train for time the fifty sixty persons sitting, passed River, Haw and that a of the tickets were sold to part per- before, at Haw River the due time to evening sons with the officers of the run communicate then to company, action, in this as is shown such willful by, as would him entitle to recover puni- refused, This tive damages. prayer plaintiff excepted. TERM, 1891. V. RAILROAD. PURCELL that,
The instructed jury testimony, Court not be warranted the defendant they finding guilty indicated a indif- as reckless of such degree negligence needless willful- ference to consequences, caprice, oppression, or other cause of would entitle ness aggravation The measure of to punitive damages. damages upon facts, or those believed the tes- admitted proven, jury cents, would be the for fifteen timony, price paid and the amount for another conveyance Burlington, cents. twenty-five
(cid:127) There was a verdict for at plaintiff, assessing cents, and from the thereon he forty appealed.
Mr J. A. plaintiff. Long, Busbee, and H. for defendant.
Messrs.D. Schenck F. Code, 1963, : railroad J.: Clark, provides “Every § and run their cars for the shall start corporation transporta times, tion of be fixed passengers property notice, and shall furnish sufficient accommodation by public all such for the transportation property a reasonable time thereto as shall within be offered previous at the transportation place starting, junction railroads, and at usual of other established stopping places for that discharging freights receiving way passengers *4 train, take, and shall such transport discharge at, from and to such on due of places payment property therefor, and or fare authorized shall be legally in an action liable to the aggrieved party any For a violation of such premises.” neglect refusal have sued in contract duty statutory plaintiff might C., Railroad, 170), N. but he could elect v. to sue (Hodges and the breach of in tort for the public injury duty (exist of the the willfulness or statute) by independent negli- ing 108—27 IN THE SUPREME COURT. v. Law, defendant. Non-contract 73 and
gencé Bishop §§ Carriers, Redfield on 74; §422; Tallon v. Great Western El., 2 El. & If the tort was committed Railway, by- mere of the defendant as carelessness or negligence simple inadvertence, the be restricted to compensa and as no were tory damages, special damages other than shown another the measure obtaining conveyance, as laid Court, to-wit, down damages, by price the ticket and of such other procuring conveyance forty— cents all—-would have been correct. But the conduct defendant willful, or showed such gross negligence (he indicate a as to wanton disregard of plain tiff, he was entitled to recover in addition. punitive damages
Railroads are valuable granted franchises privileges virtue State’s of eminent domain. On their right assume correlative they duties to the part obligations and become servants. are not public public quasi They such and unusual to the great sole end granted privileges for the they mere benefit of may operated pecuniary and at corporation, will of arbitrary pleasure their It is well managers employees. recognized are they subject and con- proper regulation, supervision trol and that owe by public authority, duties to the they individuals who wish to or to may travel over ship goods lines. their When defendant advertised its schedule and ticket and himself at the plaintiff bought presented advertised time at a road, station of he to be taken had the aboard the cars on their arrival at right In its cars by the station point. running without stop- defendant committed a breach ping duty public —a tort. If such breach was mere inadvertence negligence, an or was caused unforeseen number passengers pre- themselves which rendered it senting unsafe take a greater aboard, number could not reasonable company have increased the cars, number of then (cid:127)diligence the plain- *5 TERM, held to recover the tiff would be bare only compensatory If, however, laid down. the defendant, having train, advertised reasonable dili- by could have ascertained that the number cars gence insufficient, and made no effort to supply deficiency, of its duties and of those whom it regardless rights had invited leave their avocations and ordinary present at its station for themselves ran its train passage, by the station without or if there was room in stopping, cars for additional and train sixty fifty persons passed the station without least by taking as it had many for, accommodations then the defendant did display gross willful of the disregard rights entitled him . recover punitive damages. There was evi- believed, dence the state of facts justify, recited for instruction, and it was error to prayer refuse Should an it. excessive verdict grant found the discretion rested with the by trial jury, cor- judge rect it would a denial it; but a com- justice permit mon to exhibit such carrier arbitrary willful neglect has the duties it assumed such'
of others. Yet such if, effect without excuse, adequate it should be allowed to act no so with other than penalty of the ticket and the refunding price price another since the would conveyance, latter be demanded in few cases and when the destination is at a very onty short of such distance. The effect would be to license the ruling not, common carrier to furnish cars or and to at its stop reg- not, ular at its stations arbitrary pleasure and not as a law. The duty required refunding ticket price would amount most cases to as the nothing, passenges a ticket usually buy next train. Yet incon- venience, annoyance injustice traveling public such detentions would be difficult to esti- great, mate. *6 THE COURT.
420 IN SUPREME v. Railroad.
Purcell ' Miss.,1, 32 in is Heirn v. M’Caughan, A point case exactly were recoverable is it held exemplary where in a steamboat a common carrier company) (there against to of of willfully refusing tort for violation duty an action a accord the as and receive land its vessel N. In N. O. & its advertisement. J. G. to ing Miss., 660, case somewhat Hurst, which a 36 Railroadv. the station without the train ran similar, where the of a off (instead passenger, put receive) stopping “ the of cited, and it is the case last say right affirm Court dam in such cases the by punitive the public jury protect or which might wickedness folly negligence, ages against into most these convert public blessings otherwise great nuisances.” dangerous has carrier, common where it
It of a especially is duty for the sufficient cars transportation a monopoly, provide of as well as for the all carriage all freight, of passengers, it, as was held its naturally brings invitation C., Indeed, the facts Railroad, N. 347. identical v. Branch are by Judge case cited hypo- of the present Rodman 351). (p. thetical illustration opinion or will No for its own convenience justify regard profit for the ordinary sufficient cars only having corporation travel, bear amount of leaving public freight occasions, the when, on unusual and loss inconvenience Com- of business swell may beyond average. volume for an not be held liable unforeseen mon carriers could within calcu- rush of business not reasonable extraordinary is of when the additional volume travel lation, freight but expected, be it is the could reasonable foresight such as with furnished. to have the extra cars of duty company the modern facilities telephone telegraph With an unusual number quantity occasion If this for. can be notified provided promptly and the com- and willful not done is gross negligence, TERM, in a willful and allowed to find its profit should not be pany of its own .and public reckless duties. defendant could on the whole that, testimony, be
It may enti- excuse, sufficient matter show out in his of the evidence set prayer to have the tled phase that evidence to the Taking instruction jury. presented entitled to recover he was true, else appearing, nothing *7 damages. punitive Error.
Per Owriam. appeal.
dependant’s read the defendant and answer were When complaint tenus, for because the ore and moved demurred action, did state facts sufficient for a cause of complaint a ticket, no amount was for paid destination, and no amount claimed for transportation no claimed, and that no exemplary damages damages special be recovered for breach of contract. could Motion overruled. Defendant excepted. notice of a motion to dismiss for want
The defendant gave till after the which was reserved evidence jurisdiction, in. the defendant renewed its close of evidence Upon motion dismiss want jurisdiction— amount of does not mention any Because enti- demanded other money action, in that it does not tled to recover in this form of that it does not claim ticket; amount for a specify any it does not amount substituted any conveyance; allege any damages. special evidence,
2. That the complaint, explained by plaintiff’s shows on its Court has no jurisdiction face the Superior of this action. IN THE SUPREME COURT. V.
PURCELL RAILROAD. Motion denied. Defendant from excepted, appealed the judgment. J.: 'The of the Court below was correct ruling
Clark, The defendant’s demurrer and motion to both particulars. dismiss were based mistaken idea that the action for breach of contract. It is true that the necessarily in contract, have elected have sued and if plaintiff might so, he should set out the for his price paid measure of his would have been the recovery price paid same, the cost of another mode of procuring conveyance destination, to his and such other special damages, alleged, as were the direct and necessary the breach consequences of contract.
But it is also true that the could have equally Law, in tort 73, sued Non-contract (Bishop 74; §§ Thompson Carriers, 544; Carriers, Redfield on and it is clear §414), that such was intention here. The of his com- gravamen “ is that he went to the before plaint passenger depot just the time the defendant for the arrival and published *8 train, of its which is and regular passenger due departure said about 5 o’clock and depot passes every morning, remained or near said until said train did upon platform arrive, which occurred about 6 o’clock A. M. That when said arrive, it all, train did made no at Haw River Station at stop but ran said station with not great speed, allowing any it, and the get upon leaving plaintiff standing at said to his remaining depot, great disappointment, in the dollars, sum of five hundred annoyance damage and hence he this suit.” brings
When a cars, while on the is passenger, traveling injured carrier, he can sue either for the breach by negligence of contract of safe or in tort for the carriage negligence. Railroad, Wis., 657, Craker v. 36 and the cases cited. And in a case where the destination, was carried past TERM, 423 it held that action in tort, was would be deemed founded unless it that the breach contract was plainly appeared “the gravamen action will be complaint; in tort or contract to the regarded character having regard indicate, the facts and the most remedy complete which, stated, redress the facts the law can ample afford,” and that the of “the contract of allegation carriage a mere inducement to the action to show that the defendant there,” but that the is the lawfully point grievance done violation wrong duty bj*- public O., Hurst, common carrier. N. J. & N. G. Railroad v. Miss., 661. A case in however, is Heirn v. exactly point, Miss., 1, in which it is held: “An action M’Caughan, carrier, a common for a failure to at a against stop regular station and take on board a to advertised according passenger, schedule, tort, is founded in contract, and not on a it special for a violation of a being to the public. general duty Even had the for the ticket plaintiff alleged price paid tort) was not in not the action for (which necessary contract, have been conclusive the action facts whole, taken as a show complaint, was not contract for the recover seeking him for his but for the done pittance paid wrong the breach of of his the willful public duty him the defendant rights by allowing get “ train at its its train without depot, running him at said stopping leaving remaining standing tó his and damage depot, great disappointmeat, annoyance in the sum of hundred dollars.” five indi-
It is clear that merits the evidence whatever might inwas cate. as a matter of action pleading that the tort, that the Court had Superior jurisdiction, *9 action, in that did not fail to state a cause of (as defendant demurred) price special in an action and other matter which would have proper IN THE SUPREME 424 COURT. Indeed, the whole contractu were has alleged. subject
ex C., Railroad, considered Bowersv. 107 N. been so recently contented a 721, that we ourselves with bare ref might “ case, J., to that C. Ob erence says: MekrimoN, these words were intended to more than a viously, allege — of the contract a tort —a tortious breach injury. simple more terms for such thát might Granting appropriate purpose still Court can have been see the employed, purpose and, can, as it should he informally expressed, pleading sustained.” upheld jurisdiction the former were system Under practice pleadings construed most but now the strongly against pleader, “ Code, statute them to be con- § (The 269) requires liberally with a to substantial between the strued view justice parties.” 351, C., N. Railroad, The case Hannah v. relied upon counsel, us, is the defendant’s it seems to an really, him. There the that he authority against plaintiff alleged had been off the cars after wrongfully put having bought for his ticket. The Court held that it was an action tort, but that died befoie plaintiff having the action abated as to the for the techni- punitory damages Code, it cal assault and that as an (The § [2]), treating action ex of the ticket contractu recover price amount stated within the of a jurisdiction magistrate. demurrer to the failure to state jurisdiction cause of in the action case based entirely upon present an this as alleged insufficiency complaint, treating treating action on contract. The measure of damages, tort, as an action is considered appeal. No error. Per Curiam.