87 Ark. 162 | Ark. | 1908
(after stating the facts.) In this case the appellee made a contract with appellant to furnish him transportation from Coffeyville, Kansas, to Hot Springs, Arkansas. A part of the journey was to be made over the line of a connecting carrier, the Little Rock & Hot Springs Western Railway Company. The auditor of appellant company, by mistake, took up that part of the ticket which entitled appellee to be transported over the line of the connecting carrier. In ignorance of this mistake appellee took passage over the line of the connecting carrier to his destination. For non-payment of his fare he was ejected from the train of the connecting carrier. The appeal here is by the initial or contracting carrier. The action against it has no element of tort, but is an action .for failure to perform its agreement of carriage.
The undisputed testimony shows that appellee had sufficient money with which to pay his fare.
Appellee could not increase his damages for a breach of contract by neglecting or refusing to do that which -would lessen them. By refusing to pay his fare he contributed to 'his injuries, which are the direct result of his own conduct, and not the breach of the contract for his carriage.
In the case of St. Louis S. W. Ry. Co. v. Reagan, 79 Ark. 484, which was an action against the railway company for damages alleged to have resulted from delay in the company furnishing free transportation to its hospital to its employee in violation of its agreement, the action was held to be one on contract, and the court said it had none of the elements of a tort. On the measure of damages, at page 489, the court said: “When a party has the money with which to purchase a ticket, the natural and ordinary damages which would result from a breach of a contract to give him free transportation would be the price of the transportation agreed to be furnished. If plaintiff in the case had the money with which to have purchased a ticket, we see no reason why he should be allowed to recover damages for failing to furnish a ticket, beyond the price of the ticket.”
If appellee had been ejected from the train of the carrier with whom he made the contract, he would have had a right of action against it for breach of duty as a carrier, and his measure of damages, unless there was an element of malice, recklessness or wantonness, would have included the humiliation that resulted from his expulsion from the train. Hot Springs Railroad Company v. Deloney, 65 Ark. 177. But where the eviction was made by the connecting carrier, the question is one of contract only, and appellee can recover only the extra fare demanded, by the payment of which all other damages could have been, prevented. The undisputed testimony shows that appellee paid the sum of sixty-five cents to complete his journey, and this is all that he is entitled to recover under the contract.
A remittitur will cure this error; and if appellee will within two weeks remit the excess of the judgment over sixty-five cents, judgment will be entered here for that amount; otherwise the cause will be remanded for a new trial.