Burns v. Johnstown Pass Ry. Co

Donald E. Dufton and Robert E. Creswell, for appellant. Percy Allen Rose, Forest Rose, and W. Horace Rose, for appellee.

ELKIN, J. Even if it be conceded that the defendant company was negligent in constructing and maintaining the poles supporting the trolley wires in too close proximity to the tracks, it does not necessarily follow that there can be a recovery in this case. The real question in dispute is whether the testimony shows such contributory negligence on the part of the deceased as will defeat plaintiff's claim in this action. The learned trial judge in the court below directed a compulsory nonsuit, which, on motion made, he refused to take off, from which rulings this appeal is taken.

The deceased was standing on the running board of an open summer car at the time the accident occurred. We have frequently said that the running board of a car is not intended for the use of passengers, except as a convenience in getting in and out of the car. A passenger who stands on the running board when there is room inside, or when it is reasonably practicable to go inside the car, assumes the risk of his position. Bard v. Pennsylvania Traction Co., 176 Pa. 97, 34 Atl. 953, 53 Am. St. Rep. 672; Thane v. Scranton Traction Co., 191 Pa. 249, 43 Atl. 136, 71 Am. St. Rep. 767; Bumbear v. United Traction Co., 198 Pa. 198, 47 Atl. 961. It follows, therefore, that a passenger who is injured while standing on the running board must show by affirmative testimony that it was not practicable for him to go inside the car before he can sustain an action for damages.

We have some doubt whether the evidence offered by appellant has met this standard of requirement, but, even conceding under the circumstances as disclosed by the testimony it was a question. for the jury to determine whether it was practicable for the deceased to go inside the car, still there can be no recovery because of the negligence of the deceased in another respect. The danger, if any, from the poles could have been avoided by the exercise of reasonable care. Did he exercise the reasonable care required under the circumstances? The learned trial judge held that he did not. In this there was no error. The deceased had placed himself on the running board, where he assumed the risk of his position, unless he relieved himself by showing that it was not practicable for him to go inside, and, in addition, he knew of the close proximity of the poles to the tracks, and warned other passengers of the danger. Three or more passengers standing in front of him and one or more back of him passed the pole without being injured. These passengers were standing on the same running board, and were subject to the same danger, if such it was. They all avoided the danger of the poles about which the deceased had warned them, and it is clear he could have avoided it by the exercise of reasonable care. If he knew the danger, and he did, and could have avoided it by reasonable

Freeman v. Atchison, etc., Ry. Co

care, and of this there is no doubt, it was his duty to do so, and, having failed to perform his duty in this respect, he was guilty of contributory negligence, and there can be no recovery in this

FREEMAN V. ATCHISON, T. & S. F. RY. Co.

Passengers

(Supreme Court of Kansas, April 8, 1905.)

[80 Pac. Rep. 592.]

Tickets Expiration.* A ticket which contains no limitation as to time, either on its face or by reason of a regulation of the railroad company, may ordinarily be used at any time within the period fixed by the statute of limitations.

Same Same Same.t-It is competent for carriers of passengers to limit the time to which tickets of any class may be used, subject to the qualification that the limitation must be reasonable.

Same Same Same Validity of Printed Condition.‡-On a firstclass local ticket, purchased for passage from one station to another about 40 miles distant, over a railroad upon which there was daily passenger service in each direction, was plainly printed the condition: "One continuous passage, commencing within one day from the date on back hereof." On the back in perforated characters was the date, "5-31-02.” Held, that the condition constituted a part of the contract between the railroad company and the purchaser, and was binding upon him.

Same Same Same—Same.‡—The fact that the purchaser did not sign the contract will not relieve him from its obligations, nor is its binding force lessened by the failure of the passenger to observe a reasonable condition plainly printed on the face of his ticket.

(Syllabus by the Court.)

Error from District Court, Sedgwick County; Thos. C. Wilson, Judge.

Action by E. V. Freeman against the Atchison, Topeka & Santa Fe Railway Company. Judgment for defendant, and plaintiff brings error. Affirmed.

Dale & Amidon and J. L. Dyer, for plaintiff in error.

A. A. Hurd, O. J. Wood, Hurd & Hurd, and Houston & Brooks, for defendant in error.

*See note appended to Boyd v. Spencer (Ga.), 11 Am. & Eng. R. Cas., N. S., 247.

For the authorities in this series on the subject of the validity of stipulation fixing time for expiration of passenger ticket, see footnotes appended to Elliott v. Southern Pac. Co. (Cal.), 18 R. R. R. 52, 41 Am. & Eng. R. Cas., N. S., 52.

As to whether mere acceptance of a passenger ticket includes assent to its printed conditions, see foot-notes appended to Mart v. Louisiana Western R. Co. (La.), 13 R. R. R. 635, 36 Am. & Eng. R. Cas., N. S., 635.

Freeman v. Atchison, etc., Ry. Co

JOHNSTON, C. J. E. V. Freeman purchased a regular full fare ticket of the Atchison, Topeka & Santa Fe Railway Company, for passage from Argonia to Wichita, on May 31, 1902. On the face of the ticket there was printed the following condition: "One continuous passage, commencing within one day from the date on back hereof." On the back of the ticket, and in perforated characters, was the date, "5-31-02." For reasons of his own, the plaintiff did not take the trip on the day he purchased the ticket, but several weeks later he presented the ticket on a train, when he was informed by the conductor that the ticket had expired, and upon his refusal to pay fare he was expelled from the train. Although the plaintiff had carried the ticket in his pocket between the time of purchase and presentation, he states that he did not notice the limitation on its face, and was not aware that it was a limited ticket. He was a commercial traveler, and frequently purchased and used tickets like the one in question. In an action for damages the above facts were disclosed, after which the court held that the plaintiff was not entitled to recover damages, and directed judgment for the defendant.

It is insisted by the plaintiff that, as he paid regular first-class fare, he was entitled to an unlimited ticket, and that, as the limitation was not brought to his attention nor observed by him, it was without binding force.

A ticket which contains no limit as to time, either on its face, or by a regulation of the company, may ordinarily be used at any time within the period fixed by the statute of limitations. However, it is no longer open to controversy that, in the absence of statutory restrictions, carriers of passengers may limit the time within which tickets of any class may be used, providing always that the limitation is reasonable. In his work on Railroads, Judge Elliott tersely states the doctrine as follows: "The right of a railroad company to limit the time within which a ticket over its road shall be good is well settled. But the limitation must be reasonable. Subject to this qualification, a ticket may be limited even to a single day or to particular train. A limited ticket is not good for passage after the time to which it is limited has expired, and, as a general rule, one who presents such a ticket, and refuses to pay his fare or produce a proper ticket, may be expelled from the train." 4 Elliott on Railroads, § 1598 There was no ambiguity in the condition expressed on the ticket. The date on the back was abbreviated, it is true, but it was in a form commonly used in business transactions, and one which a man of ordinary intelligence could not misunderstand. His signature was not attached to the contract, and he says that he did not notice the printed limitation in the ticket until it was refused; but the absence of his signature did not eliminate the condition, and he is bound by, and must take notice of, limitations plainly printed on the face of the ticket. No statement was made by the agent who sold the ticket with reference to the time when it

Eller v. Carolina & W. Ry. Co

might be used, nor anything said as to the character of the ticket which would mislead the plaintiff. There was daily service on the railroad between Argonia and Wichita, and hence it cannot. be said that the condition limiting the time of use to one day from the time of sale was unreasonable. That condition being plainly expressed on the ticket, it will be presumed to have been consented to by the purchaser in the acceptance and use of the ticket itself. Among the authorities sustaining these views, the following are cited: Dangerfield v. Railway Co., 62 Kan. 85, 61 Pac. 405; Railroad Co. v. Price, 62 Kan. 327, 62 Pac. 1001; Rolfs v. Railway Co., 66 Kan. 272, 71 Pac. 526; Hanlon v. Railroad Co., 109 Iowa, 136, 80 N. W. 223; St. Clair v. Railroad Co., 77 Miss. 789, 2 South. 957; Texas, etc., Railroad Co. v. Powell, 13 Tex. Civ. App. 212, 35 S. W. 841; Southern Railway Co. v. Powell, 108 Ga. 791, 33 S. E. 951; Callaway v. Mellett, 15 Ind. App. 366, 44 N. E. 198, 57 Am. St. Rep. 238; Lillis v. Railway Co., 64 Mo. 464, 27 Am. Rep. 255; Railway Co. v. Proctor, 1 Allen, 267, 79 Am. Dec. 729; State v. Campbell, 32 N. J. Law, 309; Elmore v. Sands, 54 N. Y. 512, 13 Am. Rep. 617; Boice v. Railroad Co., 61 Barb. 611; Rawitzky v. Railway Co., 40 La. Ann. 47, 3 South. 387; Coburn v. Railroad Co., 105 La. 398, 29 South. 882, 83 Am. St. Rep. 242; Pennsylvania Co. v. Hine, 41 Ohio St. 276; Hutchinson on Carriers, §§ 576-581; 1 Fetter on Carriers, § 285; 3 Thompson on Negligence, § 2599; 6 Cyc. 575.

The plaintiff contends that the limitation is not enforceable, because it was nowhere alleged in the petition that the company had a rule providing for such limitation, nor that the rule, if it existed, was reasonable. The existence of such a rule is of no importance where the limitation is written on the ticket itself. If the limitation had been a regulation of the company, printed or posted elsewhere, a question might have arisen as to whether due notice of the rule had been given, or that the company had sufficiently brought it to the attention of the plaintiff, to make it effective as to him. The limitation expressed on the ticket, which the plaintiff knew, or by reasonable diligence could have ascertained, constituted a contract between him and the company, and was binding alike upon both.

The court ruled correctly in sustaining a demurrer to plaintiff's evidence, and its judgment will therefore be affirmed. All the Justices concurring.

ELLER et ux. v. CAROLINA & W. RY. Co.

(Supreme Court of North Carolina, Nov. 28, 1905.)
[52 S. E. Rep. 305.]

Judgment - Merger Splitting Cause of Action. - Where plaintiff brought an action against a railroad for damage to her baggage, which contained a bridal trousseau, and recovered judgment therefor, 18 R R R-39

Eller v. Carolina & W. Ry. Co

she could not thereafter maintain a separate action for mental anguish caused by the injury to her trousseau, but she should have collected all the damage to which she was entitled in her original suit.

Action Joinder of Causes of Action—Parties and Interest Involved. -Under Code, § 267, authorizing the joinder of certain causes of action, but requiring the causes of action so joined to all belong to one of the classes specified and to affect all the parties to the action, a husband and wife cannot join their separate actions for damages for mental anguish caused by defendant's negligence and recover one sum in satisfaction of their several claims.

Damages Remoteness - Mental Anguish.* Mental anguish, experienced by a prospective groom on the damaging by a railroad of the wedding trousseau of his bride to be, was too remote a form of damage to entitle the groom to recover therefor against the railroad, which did not know of the intended marriage.

Appeal from Superior Court, Catawba County; Councell, Judge.

Action by Albert Eller and wife against the Carolina & Western Railway Company. From a judgment of dismissal, plaintiffs appeal. Affirmed.

On September 5, 1904, the feme plaintiff, then Dora Anderson, was a passenger on defendant's train from Granite Falls to Hickory. She had, as baggage, a valise of the kind usually known as a "telescope," containing clothing, letters, photographs, and other articles, which was checked to Hickory and should have arrived at its destination on the 5th of said month, but did not arrive until the evening of the 7th. The feme plaintiff was going to Hickory for the purpose of being married to her coplaintiff, Albert Eller, to whom she was at the time engaged. The wedding had been set for the morning of the 6th, but in consequence of the delay in receiving her baggage it had to be postponed until the 7th, as her wedding trousseau was in the valise. When her baggage was tendered to her she refused to take it, as the valise was torn and her clothes were wet and muddy and so badly damaged that they could not be used. She alleges that by reason of the premises she suffered great mortification and mental anguish, and seeks to recover damages on that account. It appears that she had already sued the defendant in an action for the nondelivery of her valise and the damage to the property. That suit was settled, and she received from defendant $30, and the clothes were returned to her. At the close of the testimony,

*For the authorities in this series on the subject of mental suffering as an element of the damages in negligence cases, see foot-note appended to Southern Pac. Co. v. Hetzer (C. C. A.), 17 R. R. R. 724, 40 Am. & Eng. R. Cas., N. S., 724.

For the authorities in this series or in which the principal embraced in the third head-note of the principal case is involved, see footnote appended to Traywick v. Southern Ry. Co. (S. Car.), 17 R. R. R. 678, 40 Am. & Eng. R. Cas., N. S., 678; American Express Co. v. Jennings (Miss.), 16 R. R. R. 546, 39 Am. & Eng. R. Cas., N. S., 546; Choctaw, O. & G. Ry. Co. v. Rolfe (Ark.), 16 R. R. R. 525, 39 Am. & Eng. R. Cas., N. S., 525.