79 Ark. 484 | Ark. | 1906
(after stating the facts.) This is an appeal from a judgment for the sum of $2,000 rendered against the defendant company for failure to furnish the plaintiff prompt transportation to its hospital, and prompt treatment after his arrival.
The presiding judge instructed the jury that if there was an agreement by the company in case of injury to furnish the plaintiff transportation to its hospital, and it failed to do so, plaintiff was entitled to .recover whatever suffering and pain there may have been caused to plaintiff by reason of the delay in furnishing him transportation, notwithstanding he may have been able to pay for such transportation. Now, a ticket from Stephens, Arkansas, where plaintiff lived, to Tyler, Texas, where the hospital of defendant was located, cost but six dollars, and the defendant company offered evidence to show that plaintiff had at all times an ample supply of money to have paid for this transportation, he had desired to do so, and that, when he arrived at the hospital, he had over $3,000 cash in his possession. Instead of paying his fare and compelling the company to restore the amount paid afterwards, he chose to wait for the pass. This delay no doubt acted unfavorably upon his wound, and was the cause of considerable suffering on the part of plaintiff: but, as he had it in his power to have avoided this delay and injury by buying a ticket, we think it was his duty to have done so. Suppose the company had never furnished him a ticket, could he, with $3,000 in his pocket,'have been justified in refusing to spend six dollars for a ticket and in allowing his leg to mortify so that amputation would be necessary? and, if he did so, could he justly demand of the company compensation for the loss of a leg? It was the duty of plaintiff, when the company failed to carry out its contract, to do what he .reasonably could to avoid further injury to himself, and we are of the opinion that he can not recover for pain and suffering caused by the delay under such circumstances, for he had it in his power to have avoided such injury. Hall v. Memphis & C. R. Co., 15 Fed. 57; Louisville & Nashville R. Co. v. Spink, 104 Ga. 692.
The decision of this court in the case of Hot Springs Ry. Co. v. Deloney, 65 Ark. 177, does not conflict with our conclusion here, for that was a case of an unlawful ejection of a passenger at a point between stations. In such cases there is an element of tort, and the court said that the passenger could recover “for the loss of time and trouble in having to walk back to Hot Springs, and such humiliation as he was made to undergo by being put off,” but that he could not recover damages for mental anguish caused by the resulting delay in reaching his sick brother, and the judgment was reversed on account of an improper instruction on that point.
But this case has none of the elements of a tort, for plaintiff was not ejected from the train. He does not complain that the conductor at the time he boarded the train at Camden refused to carry him beyond Stephens, for he had neither pass nor ticket, and did not offer to pay fare. He got off at Stephens, and for the first time notified the defendant company that he needed a pass to go to Tyler. He claims only that the defendant was bound under its contract to furnish him transportation to the hospital when thus notified. We may concede that this contention was well taken, but it does not follow that plaintiff can recover for pain and suffering caused by delay in reaching the hospital. It must be remembered that the railway company was under no obligation to enter into a contract of the kind set up by this plaintiff. The law requires railway companies to carry passengers who present themselves at the proper time and place and tender the amount required for transportation of passengers. A breach of a contract of that kind by ejecting a passenger who has paid his fare is a violation of a duty which the company owes to the public for which the passenger ejected may recover his damages in an action for tort. But in this case the law did not require the companay to enter into a contract to carry its employees to a hospital when injured. In .refusing to perform such a contract the company was guilty of no breach of duty to the public, nor of any tort. The damages must be assessed as in ordinary cases of breach of contract, and only such damages can be recovered as are the natural and proximate consequences of the defendant’s breach of the contract. Louisville & Nashville R. Co. v. Spink, 104 Ga. 692; 3 Sutherland on Damages, § 899.
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 this 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, Fo.r if, having the money to buy a ticket, he voluntarily exposed, himself to this additional pain and suffering, rather than pay the price of a ticket, his suffering caused by the delay is as much due to his own inaction as to that of the defendant, and he ought not to be allowed to 'hold the defendant liable for pain and suffering that he could have avoided by such a slight expenditure on his-part.
We are therefore of the opinion that the court erred in refusing to allow evidence that plaintiff had money with which he could have bought a ticket to Tyler. He also, we think, erred not only in giving the instruction to which we have referred, bu in refusing to give instruction number one asked by the defendant, which stated the law substantially as set forth in this opinion.
Judgment reversed, and cause remanded for a new trial..