Turner v. Great Northern Ry. Co.

• Decision Date: 31 August 1896
• Citation: 46 P. 243,15 Wash. 213
• Parties: TURNER v. GREAT NORTHERN RY. CO.
• Court: Washington Supreme Court

46 P. 243

15 Wash. 213

TURNER v. GREAT NORTHERN RY. CO.

Supreme Court of Washington

August 31, 1896

Appeal from superior court, Spokane county; Jesse Arthur, Judge.

Action by W. W. D. Turner against the Great Northern Railway Company. There was a judgment for plaintiff, and defendant appeals. Reversed.

Dunbar J., dissenting.

C. Wellington, Jay H. Adams, and M. D. Grover, for appellant.

Graves & Wolf, for respondent.

ANDERS J.

This was an action for damages for the failure on the part of the defendant to transport the plaintiff and his wife over its line of railway from St. Paul, Minn., to the city of Spokane in accordance with its agreement and duty. The material facts set forth in the complaint are, briefly, that the defendant is, and at all the times mentioned in the complaint was, a corporation operating a line of railway from St. Paul to Seattle by way of the city of Spokane; that on May 30, 1894 the plaintiff purchased from the agent of defendant at St Paul tickets for himself and wife, and procured checks for their baggage, over defendant's railway from St. Paul to Spokane, and was induced so to do by the representation of said agent that defendant's passenger train which would leave St. Paul on the said day would reach the city of Spokane on the morning of the 2d day of June following, and that the tickets purchased from the defendant's agent were limited to that time and train; that defendant then well knew that it had not been able to run a through train from St. Paul to Spokane for several days prior to that time, and that, owing to a serious break in its roadbed west of Havre, it would not be able to run such through train for a long time thereafter, which fact it negligently and fraudulently concealed from the plaintiff; that plaintiff and his wife took passage on defendant's passenger train which left St. Paul on the evening of May 30, 1894, and when said train reached Havre the conductor thereof informed the plaintiff that, because of some damage to defendant's road further west, in the state of Idaho, the train would proceed no further, but that the plaintiff and his wife would be taken on defendant's line of railway to Helena, Mont., from which place they would be carried to their destination over the line of the Northern Pacific Railroad Company, and that the tickets then held by plaintiff were good, and would be honored for transportation over that road; that plaintiff arrived at Helena on June 1st, and on the following day boarded the first west-bound Northern Pacific train, and presented his tickets to the conductor, who refused to accept them for transportation, and required the plaintiff to pay the fare for himself and wife to Missoula,-that being the end of the conductor's division; that, owing to serious damage to that road, caused by high water, plaintiff could proceed no further, and was compelled to remain in Missoula from the 2d to the 20th day of June; that on said last-mentioned day plaintiff paid the fare demanded for transportation to his home at Spokane, which place he reached on the 21st day of June, having been delayed over night at Hope, Idaho; and that the expense necessarily incurred for extra railroad fare and for board and lodging during the delays at Helena, Missoula, and Hope was $86.20. It is averred in the complaint that: "During their detention and delay plaintiff's said wife, in consequence of said delay and her anxiety of mind as to their situation, became sick at said city of Missoula, and was confined to her bed for several days, and plaintiff was much worried, vexed, and annoyed because of his inability to make his wife comfortable, situated, as they were, at an hotel, among strangers, far from home, and without access to their baggage; that because of said detention and delay, and of his inability to reach his said home, plaintiff was greatly harassed, troubled, and perplexed about his business, and it otherwise caused him great annoyance, vexation, and anxiety of mind because of his embarrassed situation, the uncertainty when they would reach their home, and the great dangers incident to traveling at that time; *** that, in addition to said extra expense made necessary, as aforesaid, because of defendant's negligent and fraudulent conduct in the premises, and of plaintiff's delay and detention, as aforesaid, and consequent loss of time, worriment, trouble, annoyance, and anxiety of mind, as aforesaid, he has been damaged in the further sum of $1,000." The plaintiff accordingly demanded judgment against the defendant for $1,086.20. The defendant moved the court to require the plaintiff to furnish a bill of particulars showing the respective amounts claimed for loss of time, trouble, annoyance, disappointment, and anxiety of mind, which motion was denied. The defendant then answered, denying all the allegations of the complaint except that relating to the incorporation and business of the defendant, and that the plaintiff purchased the tickets mentioned in the complaint. From a judgment in favor of the plaintiff for the sum of $750, this appeal is prosecuted.

It is claimed by defendant that it had a right, under section 205 of the Code of Procedure, to be advised, in advance, of how much plaintiff sought to recover for loss of time, how much for anxiety of mind, etc., that it might be prepared with its proofs to meet the allegations of the complaint, and that, if the allegations as to loss of time, trouble, annoyance, and disappointment of mind authorized the introduction of any proof, the damages were special, and the defendant was entitled to a statement of the particular items. It has been repeatedly held in New York, under a statute like ours, and seems to be the settled rule, that the granting or refusing of a motion for a bill of particulars is within the sound discretion of the trial court, and its ruling in that regard will not be reviewed on appeal, except in cases where there has been a palpable abuse of such discretion. Tilton v. Beecher, 59 N.Y. 176; People v. Tweed, 63 N.Y. 194; Dwight v. Insurance Co., 84 N.Y. 493. No such case, we apprehend, is presented here. The object of the statute is to enable a party reasonably to protect himself against surprise on the trial ( Butler v. Mann, 9 Abb. N. C. 49); but we are unable to see how the defendant could have been surprised by the testimony adduced by the plaintiff corroborative of the averments of the complaint, to which defendant's motion for a bill of particulars was especially addressed. So far as the complaint is concerned, its allegations were sufficient to let in the evidence admitted. The damages claimed, or at least those claimed for loss of time, were general, and therefore were not required to be specifically alleged. Thomp. Carr. Pass. p. 550.

It appears from the testimony of plaintiff that he purchased his tickets for transportation at the office of the Union Depot at St. Paul, and not at the office of the defendant company, and that the person from whom he purchased them was engaged in selling tickets over various other lines of railway whose trains entered and departed from that depot. Upon the trial the court permitted the plaintiff, over the objection of defendant, to detail a conversation between himself and the ticket seller, which occurred at the time the plaintiff purchased his tickets, in which the ticket seller stated, among other things, that defendant's trains were running through to Spokane on schedule time, and, if there were no accidents, plaintiff would arrive at his destination on the morning of June 2, 1894. It is contended that this was error, for the reason that it was not shown that the person who made these statements was an agent of the defendant, and authorized to bind it by such declarations. But the fact that the tickets so sold were furnished by the railway company, and were accepted as its tickets by the conductors of its trains, would seem to be sufficient proof that the seller was a ticket agent of the company, and therefore clothed with the usual powers of such agents. It is generally the fact that there is no other person than the ticket agent at a railroad station who can give travelers the necessary information as to the arrival, departure, and running time of trains, and the rule, as formulated by a learned text writer, is that passengers have a right, until otherwise informed, to rely on information received by them from ticket agents, in answer to inquiries concerning those matters, provided they do not disregard other reasonable means of information. 3 Wood, R. R. (Minor's Ed.) 1654. The testimony objected to was certainly competent for the purpose of showing that the plaintiff himself was not in fault in taking the particular train on which he started home. It was also competent as tending to prove the contract between the parties; but, for that purpose, it was comparatively unimportant, in view of the fact that the tickets themselves, which were prima facie evidence of the defendant's contract, represented upon their face that plaintiff would be carried to his destination within the time mentioned by the ticket seller.

Objection is made by the defendant to the action of the court in permitting the respondent to state to the jury the amount he was compelled to pay for board and lodging and other necessary expenses for himself and wife while at Missoula and it is urged with much earnestness that the expense incurred at that place was not the result of the breach of defendant's contract, but of an independent, intervening cause, viz. the inability of the Northern Pacific Railroad Company, upon whose line the plaintiff...