Texas & P. Ry. Co. v. Ludlam

• Decision Date: 27 June 1893
• Docket Number: 121.
• Parties: TEXAS & P. RY. CO. v. LUDLAM.
• Court: U.S. Court of Appeals — Fifth Circuit

57 F. 481

TEXAS & P. RY. CO. v. LUDLAM.

No. 121.

United States Court of Appeals, Fifth Circuit.

June 27, 1893

Statement by PARDEE, Circuit Judge:

On the 24th of February, 1890, one Emma Ludlam bought a ticket at Texarkana for Stalls, a station on the Texas & Pacific Railway 58 miles south of Texarkana. She boarded the night train, which was passenger train No. 3, and which was a through train. She had with her four children; three of them being the children of her brother, James A. Ludlam, the defendant in error herein. She purchased no tickets for the children, nor did she pay any fare for them. Soon after leaving Texarkana, the conductor took up her ticket, and when the train arrived at Kildare, a station 45 miles south of Texarkana, and before it arrived at Stalls, he told her his train did not stop at Stalls, and that she would have to get off at Kildare. She asked to be put off at Lodi, a station between Kildare and Stalls, and the conductor told her the train did not stop at Lodi, either. When the train arrived at Kildare, Emma Ludlam, together with the children, were put off by the conductor, and they remained in the depot until the next morning at 9 o'clock, when they took the morning train to Stalls, paying 25 cents fare from Kildare to Stalls. This suit was brought by James A. Ludlam, father of three of the children who were with Emma Ludlam; and he sues, as next friend of said children, for damages for breach of contract to carry said children to Stalls that night, and for damages sustained by them for being compelled to remain at Kildare all night, in the cold, instead of being carried to Stalls. The defendant answered by a general denial; and, further that the said children were passengers to Kildare, and not to Stalls, and did not offer to pay their way to Stalls, and therefore they had no right to be carried to Stalls, and further, that said children were on the night train known as 'No. 3,' which passes Stalls about 11 o'clock at night, and that said train did not stop at Stalls station, and that by a regular rule of the company, published, said train No. 3 was a through train, and did not stop at Stalls or Lodi, Lodi being the only station between Kildare and Stalls, and that the conductor of said train informed said children, and the person in charge of them, that the train would not and could not stop at Lodi or Stalls.

The evidence showed that, by a rule of the company, the night train (train No. 3) was not allowed to stop at Stalls, and it was for this reason that the conductor refused to stop at that station. Train No. 1, coming from Texarkana, stopped at Stalls about 10 A. M. Train No. 5, from Texarkana, stopped at Stalls at 5:43 P. M. Train No. 3, which passed Stalls at 10:50 P. M., was a through train from Texarkana to El Paso and carried through sleepers, and it was the rule and regulation of the company that train No. 3 should not stop at Stalls at all. This rule was set out in the time cards, and by folders issued to the public. The case was tried on January 23, 1890, and resulted in a judgment for defendant in error for $500, from which judgment the plaintiff in error sued out and perfected this writ of error.

Plaintiff in error filed the following assignments of error: '(1) The circuit court erred in charging the jury as follows 'If you believe the lady, Emma Ludlam, was on the train as passenger, and had a ticket from Texarkana to Stalls, and the conductor had allowed the children to travel with her without tickets, then it was the duty of the conductor, as soon as he found that she had a ticket to Stalls, to promptly inform her that the train did not stop at Stalls, so she could exercise the right to leave the train at any station she chose before reaching Kildare, her destination.' This was error, because the law does not impose upon the conductor the duty to inform a passenger that the train on which he is riding does not stop at a place named in a passenger's ticket, unless asked for. The charge was also error because there was no complaint in the pleading of his not telling her, and there was no evidence of any injury sustained by reason of his not telling her. (2) The court erred in charging the jury as follows: 'If you believe the lady had a ticket to Stalls, and the train upon which she was riding usually stopped at Stalls to take on or let off passengers, then it was the duty of the company to have carried her to Stalls that night, and they would be liable if they did not do so.' This charge was error, because it was proved that there was a rule of the company which forbade that train stopping at Stalls, and the custom of other trains stopping there could not vary the rule, or justify the conductor in violating said rule, and because the custom of other trains had not misled plaintiff. (3) The court erred in refusing the following charges asked by defendant: 'In this case, there being no improper treatment of the children, but only a refusal to carry them to Stalls, then, they having no tickets themselves, the only right to sue is in Miss Emma Ludlum, who had the ticket, and these plaintiffs cannot recover.' (4) The court erred in refusing the following charge asked by defendant: 'The evidence shows that the plaintiffs took passage on the train in question without making any injury as to whether the train stopped at Stalls, and the evidence shows that, by a...