Hutchins v. . Pennsylvania R.R. Co.

Yann, J. In May, 1900, the plaintiff applied to an agent of the defendant for through transportation from Brooklyn, New York, to Carlsbad, New Mexico, “ over the Pennsylvania Railroad.” The agent handed her what is called “ a continuous passage, through ticket,” and she paid him the *188 price aslced therefor. At the same time the defendant gave her a check “ on that ticket ” for her trunk to Carlsbad, New Mexico, but when the trunk Avas delivered at that place the lock was broken and a portion of the contents Avas missing. At the head of the ticket was printed in' someAvhat conspicuous type “ Pennsylvania Bailroad Company. Hood for one first class passage to” Fort Worth, Texas. Beneath and in smaller letters were the Avords'“ Subject to the following contract,” Avliich Avere directly folloAved by a “Notice” to the effect that it was “ a penal offense for the purchaser or holder of this ticket to sell, barter or transfer the same for a consideration in the State of Texas, and tiffs ticket or any unused part thereof is redeemable at any ticket office in Texas, of a raihvay company over which this ticket or any unused ]Dart thereof reads, if presented Avithin ten days after the right to use the same has expired by limitation of time as stipulated thereon.” Next below in very fine print were eight paragraphs, numbered consecutively, of which the first and last were as follows : “ 1st. That in selling this ticket and checking baggage this company acts as agent only and is not responsible beyond its own line. * * *. “ 8tli. That baggage liability is limited to Avearing apparel not exceeding $i00 in value.” At the bottom of the ticket Avas.tlie following: “ I hereby agree to all the conditions of the above contract” and beneath were two blanks, one headed “ Signature,” and the other, “ Witness.” Attached to the ticket were five coupons, each headed in conspicuous type “ Issued by Pennsylvania Bailroad Co.,” which in all except the last Avas followed by the Avords, in much smaller type, “ on account of,” some other railroad named. Another ticket with two coupons attached for a passage from Fort Worth to Carlsbad was delivered to the plaintiff with the one already described. The second ticket was in all other respects a substantial duplicate of the first and the coupons accompanying Avere in the same form as the others, except that each named, in fine print, a different railroad. Neither ticket Avas signed by the plaintiff and she was not *189 asked to sign either. She read neither ticket nor any coupon and never even took them from her purse where she put them as they were delivered to her, except -when the conductor asked for her fare. Her attention was not “ called to what the ticket contained ” and she “ did not know, what it contained.” She was never informed by what means or lines the defendant ivas to furnish the transportation that she asked for, nor how it intended -to perform its contract with her. She knew what she wanted and asked for it, but the defendant gave her something of its own manufacture, without notifying her what it was or that it was not what it knew she supposed she was purchasing. During her journey she changed cars at St. Louis, where she took the train pointed out to her by the conductor, which, as she thought when she testified as a witness, was on the Iron Mountain railroad. It did not appear that she was accustomed to traveling or that she knew anything about the nature of coupon tickets or what roads belonged to the defendant’s system. She was somewhat advanced in years and simply asked for a through ticket to Carlsbad, Hew Mexico, over the Pennsylvania railroad, paid the price and took what was given her. In behalf of the defendant evidence was given by men in its employment tending to show that it accounted to seven independent railroad corporations named in as many coupons attached to the tickets for their share of the entire cost of transportation, and that the plaintiff’s trunk was delivered in good order at St. Louis to the Iron Mountain and Southern Bailway Company, one of such roads. Where her trunk was broken open did not appear. At the close of all the evidence the defendant moved for the direction of a verdict in its favor, but the court directed a verdict in favor of the plaintiff, neither party having asked to go to the jury upon any question. The effect was the same as if both parties had moved to direct and neither had asked to go to the jury. The exception to this direction is the only one appearing in the record. *190 If any question of fact was presented by the evidence, it was resolved in favor of the plaintiff by the course pursued at the trial without objection on the part of the defendant. (Sutter v. Vanderveer, 122 N. Y. 652; Smith v. Weston,, 159 N. Y. 194.) We should, therefore, examine' the record in order to see whether there is any evidence which, upon any reasonable view, will sustain the verdict directed and if there is it is our duty to affirm; otherwise to reverse. (Jerome v. Queen City Cycle Co., 163 N. Y. 351.) * I think the evidence warranted the court in finding, by the direction of a verdict for the plaintiff, that the contract was for through transportation from the point of departure to the place of destination. The defendant failed to conclusively 'establish a limitation by special contract of its common-law liability as a carrier. (Jennings v. Grand Trunk Ry., 127 N. Y. 438.) The form of the ticket suggests a proposition to make such a contract, for there was appended thereto the sentence, “ I hereby agree to all the conditions of the above contract,” with a blank for the signature of the purchaser and another for the signature of the selling agent as a witness. The proposition was not accepted by the plaintiff for she did not sign the ticket nor have any reason to believe she was expected to. She did not assent to the proposition nor agree to any limitation of liability on the part of the defendant, by merely accepting and using the ticket, for she did not read it, or know its contents, nor was she told -to read it or requested to sign it. She asked for through transportation to Carlsbad, Hew Mexico, over the defendant’s railroad, and when the ticket was delivered to her without request or remark by its agent, she had a right to presume she was getting what she asked for and what she paid for. A railroad ticket may be a contract or a voucher, and which the ticket of the plaintiff was depended upon the inference to be drawn from what was said and done when she bought it, as well as on the form of the ticket and coupons. A ticket is no notice of conditions concealed therein by fine print, unless the attention of the holder is in some way directed to them. There is no presumption that a *191 passenger assents to the terms of a complex ticket, unless he has notice of what they are. (Rawson v. Penn. R. R. Co., 48 N. Y. 212; Madan v. Sherard, 73 N. Y. 329.) The situation of the plaintiff was quite unlike that of Mr. Cullom, the purchaser of a ticket in the Talcott case, as he was an old traveler and familiar with all the facts. He “ knew what a coupon ticket meant, and he intended to purchase a ticket that would take him over the West Shore and another connecting line.” He knew that the Wabash, railroad, from which he bought the ticket, did not extend to Hew York, his place of destination, and that its eastern terminus was at Detroit. In addition to knowing that he would have to use other lines, he “ knew that besides the coupons for the different portions of the journey there was a printed contract at the head of the ticket, but he did not read it until after the accident.” Even in that case we held that the nature and extent of the contract was a question of fact, but as the evidence was conflicting and the referee had found for the defendant we affirmed as to the second cause of action. As to the first cause of' action, however, we reversed, because a nonsuit was granted by the referee, while we held that he should have passed upon the question in relation to an alleged contract for through transportation as one of fact. (Talcott v. Wabash Railroad Co., 159 N. Y. 461.) While that case was decided by a divided vote and no opinion in its entirety received the assent of a majority of -the judges, the judgment pronounced shows that it was necessarily held as is stated above. The leading authorities were cited and reviewed, so that further effort in that direction is unnecessary. We regard the Talcott case as controlling, and, without further discussion, affirm the judgment appealed from, with costs.