Miley v. Northern P. Ry. Co.

• Decision Date: 26 March 1910
• Parties: MILEY v. NORTHERN PAC. RY. CO.
• Court: Montana Supreme Court

108 P. 5

41 Mont. 51

MILEY v. NORTHERN PAC. RY. CO.

Supreme Court of Montana

March 26, 1910

Appeal from District Court, Park County; Frank Henry, Judge.

Action by Alta Miley against the Northern Pacific Railway Company. From a judgment for plaintiff and from an order denying a new trial, defendant appeals. Reversed and remanded.

Wm Wallace, Jr., John G. Brown, and R. F. Gaines, for appellant.

HOLLOWAY J.

During the month of July, 1908, the Northern Pacific Railway Company was operating a double train service over its Park branch between Livingston and Gardiner. On that line of road, and between the regular stations at Emigrant and Electric, there is a flag station known as "Daileys." At the time in question passenger train No. 103, which left Livingston in the forenoon, did not stop at Daileys, but passenger train No. 101, which left Livingston in the afternoon, did stop at that point to let off or take on passengers. On July 4, 1908, the plaintiff purchased from the Northern Pacific ticket agent at Livingston a round trip ticket for passage to Daileys and return, and boarded train No. 103 for the purpose of making her journey. When the train conductor came to collect her ticket, he informed her that the train she was then on did not stop at Daileys, and she was thereupon forced to alight at Emigrant, which was the nearest station to Daileys at which the train did stop. She brought this action and in her complaint assumes to state two causes of action; the first founded upon the defendant's common-law liability, and the second upon the provisions of section 4330 of the Revised Codes of Montana. The first cause of action seems to have been abandoned at the trial; at least the instructions given by the court only submitted to the jury the second cause of action, and upon that cause of action a verdict was returned in favor of the plaintiff for the statutory penalty of $200; and from the judgment entered on the verdict, and from an order denying it a new trial, the railway company appealed. The respondent did not make any appearance in this court, but apparently confessed error by asking this court to dismiss the action. This motion we cannot grant. It is only an action or proceeding commenced in this court that we have any authority to dismiss under any circumstances. To dismiss the appeals would amount to an affirmance of the judgment and order, and, as there are not any grounds urged for such action, we are left to consider on the merits the questions raised, or such of them as may be necessary to a determination of the appeals.

The evidence offered by the plaintiff discloses that the ticket she purchased was an excursion ticket, issued on account of the fourth of July holiday, and that it was sold to her for $1.20, whereas the regular round trip fare from Livingston to Daileys was $1.80. Section 4330, Revised Codes, under which this recovery was had, reads as follows: "Every railroad corporation must provide, and on being tendered the regular rates of fare, furnish to every person desiring a passage on their passenger cars, a ticket which entitles the purchaser to a ride, and to the accommodations provided in their cars from the depot or station where the same is purchased, to any other depot or station on the line of their road. Every such ticket entitles the holder thereof to ride on their passenger cars to the station or depot of destination, or any intermediate station, and from any intermediate station to the depot of destination designated in the ticket, at any time within six months thereafter. Any corporation failing so to provide and furnish tickets, or refusing the...