Illinois Cent. R. Co. v. Harris

• Decision Date: 08 December 1902
• Citation: 32 So. 309,81 Miss. 208
• Court: Mississippi Supreme Court
• Parties: ILLINOIS CENTRAL RAILROAD COMPANY v. JOSEPH HARRIS

32 So. 309

81 Miss. 208

ILLINOIS CENTRAL RAILROAD COMPANY v. JOSEPH HARRIS

Supreme Court of Mississippi

December 8, 1902

FROM the circuit court of, first district, Hinds county. HON ROBERT POWELL, Judge.

Harris the appellee, was plaintiff and the railroad company appellant, was defendant in the court below. From a judgment in plaintiff's favor defendant appealed to the supreme court. The opinion states the facts of the case.

The instructions which were asked by defendant, and which were refused, are as follows:

"9. If the jury believe from the evidence that Joe Harris agreed to get off at Tougaloo, or was warned that said train No. 26 would not stop at Ridgeland, and that he would have to get off at Tougaloo, and then went on and refused to get off at that place, and failed or refused to pay fare from Tougaloo to Madison, he was not a passenger from Tougaloo to Madison and the railroad company was under no obligation to him except not to wantonly and maliciously injure him.

"13. If the jury believe from the evidence that train No. 26 was not scheduled to stop at Ridgeland under the rules of the company, and was not in the habit of doing so, it was the duty of the plaintiff, before taking the train, to use due diligence to inform himself whether his ticket entitled him to have the train stopped at Ridgeland or not; and, if they further believe from the evidence that he failed to exercise such diligence, or that he got on the train knowing it did not stop at Ridgeland, and that he refused to pay the customary additional fare from Ridgeland to Madison, and was ejected by the conductor without personal abuse and without unnecessary violence, they must find for the defendant."

Affirmed.

Mayes & Harris and J. M. Dickinson, for appellant.

The court below evidently entertained the view that, if the agent at Ridgeland sold the plaintiff a round trip ticket, the plaintiff had a right to have the train stop at Ridgeland, notwithstanding the circumstances under which the ticket was sold, and notwithstanding the fact that the ticket was purchased by the plaintiff with full knowledge that the train would not stop for Ridgeland. This will be seen by reading the instructions in the case both given and refused for plaintiff and defendant.

We think, under repeated decisions of this court, this was an erroneous view of the law, and for the refusal of the ninth and thirteenth instructions asked by the defendant, the judgment of the court below should be reversed and a new trial awarded, because the effect of the instructions given was tantamount to peremptory instructions to find for the plaintiff in some amount.

The case of Yazoo, etc., R. R. Co. v. Rodgers, 80 Miss. 200, is analogous to the case at bar, and announces the principle for which the defendant contends.

In the Rodgers case, Rodgers had purchased a round trip ticket from Egremont to Vicksburg and attempted to return on No. 6, a train not scheduled to stop at Egremont, and when he sought to take passage on the train, the conductor refused to allow him to board the train. Rodgers testified that the ticket agent at Ergemont had told him, when he purchased his ticket, that he could return on any regular train. Rodgers stated this to the conductor, yet the conductor refused to allow him to take passage on the train, and Rodgers brought suit and recovered judgment in the lower court for $ 200, and this court, in reversing the judgment of the lower court, held that there should have been a peremptory instruction in favor of the railroad company, citing Vicksburg Ry. Co. v. Marlett, 78 Miss. 872.

The principle contended for in the case at bar is also set forth in the case of the Illinois, etc., R. R. Co. v. Moore, 79 Miss. 766. In that case, Moore had purchased a round trip ticket from Oxford to Holly Springs, and the agent, by mistake, in a hurry attending to the purchase, misdated it, and he was ejected by the conductor, and this court held that the conductor was authorized to eject him.

See, also, Mitchell v. Southern R. R. Co., 77 Miss. 914.

The right to eject one who is wrongfully on a train, or who holds a ticket to a point at which the train does not stop, is not only firmly settled in this state, but also by the overwhelming weight of authority elsewhere.

See Railroad Co. v. Gants, 38 Kan. 68; 17 L. R. A., 802, which are cases almost directly in point.

As bearing on the general principle, see the following cases: Lexington, etc., R. R. Co. v. Lyons, Ky. Ct. of App., May 31, 1898; Willets v. Buffalo, etc., R. R. Co., 14 Barb., 585; Woods v. Metropolitan R. R. Co., 48 Mo. App., 125; Duke v. Great Western R. R. Co., 14 U. C. Q. B., 377; Louisville, etc., R. R. Co. v. Fleming, 14 Lea (Tenn.), 128; Crawford v. Cincinnati, etc., R. R. Co., 36 Ohio St. 580; Jerome v. Smith, 48 Vt. 231; Downes v. New York, etc., R. R. Co., 36 Conn. 287; Peabody v. Oregon R. R. Co., 21 Or. 121; McKay v. Ohio River R. R. Co., 34 W.Va. 65; Shelton v. Lake Shore R. R. Co., 29 Ohio St. 214; Townsend v. N. Y. Central, etc., R. R. Co., 56 N.Y. 295; Beebe v. Ayers, 28 Barb., 275; Pease v. Delaware, etc., R. R. Co., 101 N.Y. 367; Frederick v. Marquette, etc., R. R. Co., 37 Mich. 342; Terre Haute, etc., R. R. Co. v. Nanatta, 74 Am. Dec., 96; Chicago, etc., R. R. Co. v. Griffin 68 Ill. 499; Hall v. Memphis, etc., R. R. Co., 15 F. 57; Yorton v. Milwaukee, etc., R.R. Co., 54 Wis. 234; Pennsylvania R. R. Co. v. Cornell, 112 Ill. 295; Petrie v. Pennsylvania R. R. Co., 42 N. J. Law, 449; Poulon v. Can. Pac. R. R. Co., 52 F. 197; Rose v. Wilmington R. R. Co., 106 N.C. 168.

It is settled in this state that a railroad company has a right to run through trains, or trains which do not stop at all stations. Humphries v. Illinois, etc., R. R. Co., 70 Miss. 453.

Alexander & Alexander, for appellee.

We do not controvert the accepted law that where a passenger boards a through train, which, according to the rules and regulations of the company, does not stop at the station for which he holds a ticket, he cannot demand to be taken there on that train. But where the company allows its authorized agent to keep for sale and sell return tickets for return on a train known as the local passenger, and which is not scheduled to pass the point of destination of ticket without stopping, and further makes no way whereby one making inquiry can ascertain that it will not stop, then the company is most certainly liable, if the passenger purchasing the ticket and boarding the train is carried past the point. The case of Yazoo, etc., R. R. Co. v. Rodgers, 80 Miss. 200, relied on by appellant differs from this, in that in this case Harris' ticket on its face bore the statement that it was good only until midnight, and the conductor must have accordingly known that this train was the only train which could transport plaintiff to his destination before the time-limit. In the Rodgers case the plaintiff, instead of trying to return on the train which the ticket entitled him to return on, sought to return on a train notoriously known and scheduled as not stopping at small stations. Rodgers' ticket entitled him to return to Egremont from Vicksburg, but he had the opportunity to return within the time-limit on another train. Mr. Joseph, the agent at Egremont, testified that no tickets were sold at Egremont for train No. 6, the fast train which Rodgers attempted to travel on. Rodgers bought an excursion round trip ticket at Egremont to Vicksburg and return. He could have returned on the excursion train, but chose not to do so. In the present case there was no other train except this local passenger train for return within the time-limit. Harris' ticket had on it the statement that it was good only until 12 o'clock that night. The ticket sold Rodgers allowed his return on at least one train. But here we have a case where the company sells a ticket good only for a certain time, and there is no train for its use in said time-limit except train No. 26, the local passenger, the one from which appellee was ejected.

As to the law covering this case, we refer the court to: Atkinson v. Southern Ry. Co., 55 L. R. A., p. 223; Head v. Georgia Pac. R. R., 79 Ga. 358; Boehm v. Duluth, etc., R. R. Co., 91 Wis. 592.; Railroad Co. v. Mackie, 1 L. R. A., 567; Howard v. Railroad Co., 61 Miss. 194, and cases cited in opinion in 55 L. R. A., 223, supra.

"The face of the ticket is conclusive evidence to the conductor of the terms of the contract of carriage between passenger and carrier." Poulin v. Canadian P. R. R., 17 L. R. A., 300 (52 F. 197).

As to how far a...