Fenlon v. Chicago, M. & St. P. Ry. Co.

• Citation: 169 P. 863,99 Wash. 289
• Decision Date: 07 January 1918
• Docket Number: 14283.
• Court: Washington Supreme Court
• Parties: FENLON et ux. v. CHICAGO, M. & ST. P. RY. CO.

169 P. 863

99 Wash. 289

FENLON et ux. v. CHICAGO, M. & ST. P. RY. CO.

No. 14283.

Supreme Court of Washington

January 7, 1918

Department 2. Appeal from Superior Court, Spokane County; Wm. A. Huneke Judge.

Action by T. L. Fenlon and Augusta Fenlon, husband and wife, against the Chicago, Milwaukee & St. Paul Railway Company, a corporation. Judgment for defendant, and plaintiffs appeal. Reversed, with directions.

M. R Ryan, of Spokane, for appellants.

Geo. W Korte, of Seattle, and Cullen, Lee & Matthews, of Spokane, for respondent.

ELLIS C.J.

Action by the holder of a first-class ticket from Falcon, Idaho, to Roland, Idaho, points on defendant's railroad line, for damages claimed as resulting to plaintiff wife through failure of defendant to stop its train at the initial point, take on and carry her to the point of destination.

Both stations are situated in the Bitterroot Mountain district in Northern Idaho. Roland is east of Falcon about ten miles as the railroad runs and something less than two miles by trail through a canyon. Falcon is not a regular passenger station, but there is maintained there a depot, a regular station agent, and two telegraph operators. Though passenger trains do not regularly stop there, it is not an unusual thing for them to stop and take on or discharge passenger; permission first being obtained from the chief train dispatcher or division superintendent at Missoula, Mont.

On January 16, 1916, plaintiffs and a young brother of plaintiff wife resided about 300 yards from the depot at Falcon. On that morning the plaintiff husband became very ill. The wife, a young woman of 24 years, believed that it was necessary at once to remove him to a hospital in Spokane to save his life, but found that she had not sufficient money to pay the fare. Thinking that she could secure it from a friend at Roland, if she could see him personally, she applied to the station agent at Falcon for permission to take the afternoon east-bound train to that point, advising the agent of the circumstances, as she testified, or, as the agent testified, that it was 'a case of sickness.' Her intention was to return on a later train and take her husband on the early morning westbound train to Spokane. The agent thereupon telephoned to the train dispatcher at Missoula, in turn advising him that it was a case of sickness, and through him secured from the superintendent permission for the train to stop at Falcon and carry the woman to Roland. The agent, telling her that the permission was granted, sold her a printed first-class ticket for 30 cents reading, 'Good for one first-class passage, Falcon, Idaho, to Roland'; the word Roland being written with a pen. The train being reported late, she waited at the depot for about 2 1/2 hours, when at about 4:20 p. m. the train passed without stopping. Though a timely order had been given by the dispatcher at Missoula to the agent at Avery, a station some distance west of Falcon, to tell the train conductor to make the stop at the latter point, it is admitted that the agent at Avery failed to do so. Plaintiff wife testified that she then asked the station agent if she could not go upon a freight train, but was informed that such permission would not be granted. The agent denied this, but testified very positively that permission to ride upon freight trains was never granted. Later a 'helper' engine passed Falcon going east and stopped about two minutes for orders. It is asserted that the woman might have ridden on this engine to Roland, but there is no positive evidence that any such order was given; the dispatcher testifying that he had authority to order it to carry her, but had neither memory nor record that he did so. It is certain that she was never advised of such a possibility. The jury made a special finding to that effect. After the train had passed she returned to her home, made arrangements to have a man remain with her husband, and, at about 6:30 in the evening, together with her brother, a youth of 17, started on foot over the trail through the canyon arriving at Roland at about 9 o'clock in a state of exhaustion; her forehead being frozen. There was some conflict in the evidence as to whether or not the evening was stormy, but it is admitted that the snow over the trail was six feet deep and that the temperature was near zero. The woman soon developed a severe bronchial trouble and became weak, pale, and emaciated, which condition, there was evidence tending to show, resulted from the exposure and hardship incident to the trip over the trail. The evidence was conclusive that there were no other means of reaching Roland save by train or on foot by the trail.

At the close of plaintiffs' evidence defendant moved for a nonsuit, which was denied. The jury returned a verdict for plaintiffs in the sum of $300. Defendant moved for judgment non obstante veredicto and in the alternative for a new trial. The former motion was granted, the latter was not passed upon. Plaintiffs appeal. Hereinafter for convenience we shall refer to plaintiff wife as the appellant.

Appellant insists that there was evidence tending, either directly or by reasonable inference, to establish every element essential to a recovery, and invokes the familiar rule that the motion for judgment non obstante veredicto involves no element of discretion and can be granted only when it can be said as a matter of law that there is neither evidence, nor reasonable inference from the evidence, sufficient to sustain the verdict. Brown v. Walla Walla, 76 Wash. 670, 674, 130 P. 1166; Forsyth v. Dow, 81 Wash. 137, 140, 142 P. 490; Caughren v. Kahan, 86 Wash. 356, 360, 150 P. 445. It is argued that respondent, having sold appellant a ticket and agreed to stop the train, receive her, and carry her from Falcon to Roland, was under a duty to do so; that the evidence shows that she reasonably believed herself under a compelling necessity to reach Roland that evening, hence she was justified in making the trip on foot; that respondent knew of this necessity, and for that reason and to meet it sold her the ticket and agreed to stop the train; that the exposure and consequent injury was a proximate result of respondent's failure to stop the train, for which respondent is liable in damages as for a tort.

Respondent counters with the contention that, inasmuch as Falcon was not a regular passenger station and respondent owed the public no duty to stop its passenger trains there, its promise to do so was a mere gratuity which did not create the relation of carrier and passenger, hence appellant could sue only on the contract and not in tort, and that there can be, therefore, no liability for the failure to stop the train, beyond the price paid for the ticket. This position is not tenable either in its premises or conclusion. Of course, the relation of carrier and passenger always arises from contract, express or implied. The fact that the relation contemplated in this instance arose out of a special contract is immaterial. Respondent is a common carrier. It contracted as such, and by the contract it did not seek to limit its liability as a common carrier in any way. The mere fact that the contract was special did not divest respondent of the character of a common carrier. It could hardly be contended, had the train stopped and received appellant, that she would not thereafter have been entitled to every degree of care that any passenger wherever received could have demanded. 'On whatever terms a common carrier of persons voluntarily receives and carries a person, the relation of common carrier and passenger exists.' Walther v. Southern P. Co., 159 Cal. 769, 116 P. 51, 53, 37 L. R. A. (N. S.) 235. See, also, Schuyler v. Southern P. Co. on rehearing 37 Utah, 581, 109 P. 464, 469, 470.

True Falcon was not a passenger station, but it became such for the nonce by contract as between the parties with all the attendant rights and liabilities, regardless of any published schedule. 'In a complaint by a ticket holder for failure to stop the train on which he is traveling at the station named in his ticket, it is necessary to show that the regulations of the railroad company provided that the train should...