Nunn v. The Ga. R.R.

• Court: Georgia Supreme Court
• Writing for the Court: Hall, Justice
• Citation: Nunn v. The Ga. R.R., 71 Ga. 710, 51 Am. Rep. 284 (Ga. 1883)
• Decision Date: 30 September 1883
• Parties: Nunn. vs. The Georgia Railroad.

71 Ga. 710

Nunn. vs. The Georgia Railroad.

Supreme Court of the State of Georgia

SEPTEMBER TERM, 1883.

Railroads. Damages. Negligence. Contracts. Custom. Before Judge Hammond. Dekalb Superior Court. March Term, 1883.

Reported in the decision.

J. C. Reed, by brief, for plaintiff in error.

J. B. Cumming; Hillyer & Brother, by J. H. Lumpkin, for defendant.

Hall, Justice.

The plaintiff had a season ticket, commonly known as a "book, " which entitled him to travel on the cars of the defendant company from Atlanta to his home at Clarkston a point between the regular stations on the road at Decatur and Stone Mountain, at which trains stopped to put off and take on passengers when so notified. On the night in question, he took passage at Atlanta for his home, andwhen he delivered the conductor his ticket, he informed him that he had lost much sleep the night before, and would probably sleep on his journey, and requested him, when he reached his destination, to awaken him and put him off, which the conductor promised to do. He slept until he passed beyond Stone Mountain, and below there was aroused, and informed that he had passed his home. Here he left the cars in the night, and walked rapidly in the dark a distance of seven or eight miles to his home, which he reached between 11 and 12 o\'clock. During this walk he labored under considerable mental anxiety, on account of the situation of his wife, whom he had left in the morning quite sick, and gone to Atlanta to procure medicine for her; had obtained it, and then had it with him. He reached home in time to relieve her with the medicine he carried. He suffered from considerable soreness in consequence of his walk; was not able to do full work, and remained at home next day, and thereby lost his wages, amounting to two dollars. It did not appear from the evidence that the train was not halted at Clarkston a sufficient length of time to enable the plaintiff to get off, or that the place was not called in the customary manner; nor was it shown by any regulation of the company that it undertook that the conductor at each stopping-place should go through the train and see that every passenger was safely passed out of the cars. It was shown that the conductor, when specially applied to, had in some instances performed this service for passengers. It was incum bent upon the plaintiff to make out his case, and to show that he had been damaged by a violation of his contract with the company. In the opinion of the superior court, he failed in this, and on motion a non-suit was awarded at the close of the testimony, first, because the proof failed to show that it was customary for the conductor to go through the train and wake up a passenger who happened to be asleep. Secondly, because no breach of plaintiff\'s contract with the defendant was shown, or that therewas any proof of a failure to stop at the designated point sufficiently long for the plaintiff to get off the cars. Thirdly, because it did not satisfactorily appear whether the loss of the day\'s work, which was the only damage proved, was caused by the failure to put plaintiff off at home, and by the long walk he took in consequence of being carried beyond it, or by other causes, which might have contributed to that result, such as the loss of sleep on the previous night.

In determining the propriety of this ruling, it will be essential to consider whether the conductor's promise to wake plaintiff was included in the company's contract to transport him from Atlanta to Clarkston; if it was, and there was any failure in that respect, then there was a breach of the agreement, and he had a right to recover at least nominal damages; if it was not, then a failure in regard thereto was damnum absque injuria, his rights were not violated, he was not entitled to recover, and the non-suit was properly awarded.

" The sale of a ticket to a passenger is a contract to carry him according to the reasonable regulations of the company, and he is presumed also to contract with reference to them." Pierce Am. Rwy. Law, 491. It likewise seems a necessary implication from this rule, that the train should be stopped at the point of destination a sufficient length of time to allow the party to leave it...