Creech v. Atlantic Coast Line Railroad

Clark, C. J. The only question presented by the appeal is the refusal to nonsuit. When the railroad company, through its agent at Harrison-burg, sold the plaintiff a through ticket to Selma, N. C., he was acting as agent for the defendant road as to its part of the line, and its part •of the money received was received by him on behalf of the defendant company. The ticket on its face stated that the issuing company acted as the agent only of the other companies. It does not appear, and it is not claimed, that there was any error in that ticket. When the agent at Charlottesville, at the instance of the conductor, changed the ticket, so that “Thelma” was written in lieu of “Selma,” he was acting as agent for the two companies over whose lines the plaintiff had still to travel to reach Selma. The error thus made by the agent at Charlottes-ville was made by him, acting for the defendant company. For such mistake the defendant company was liable. The evidence does not show how the change was made from Selma to Thelma. It may be that the conductor or the Charlottesville agent lisped. That, however, -is merely a surmise. It does appear, however, from the unquestioned evidence that the plaintiff had a ticket from Harrisonburg to Selma; that it was changed by the agent at Charlottesville, at the instance of the conductor, and that in the mistake then made the plaintiff had no part, for he was not present with the conductor in the ticket office when the change was made and took the ticket which was handed to him. The mistake was the mistake of the agent of the defendant and it is liable for damages in putting the plaintiff off. In Norman v. R. R., 161 N. C., 330, the Court said: “Where a passenger asks and pays for a certain ticket and the station agent by mistakes gives him a different *63 •one wbicb does not entitle bim to the passage desired, the conductor Las no right- to expel him, and the company is liable to damages if he is expelled. The passenger has a right to rely upon the agent to give him the right ticket.” The Court goes on to say that though the conductor may be exonerated from blame personally in following his orders, the company is liable, for the expulsion was caused in such case by the error of the agent who sold the ticket. In the present case it would seem that the conductor was not entirely free from blame, because the plaintiff offered to pay for the telegram to the agent at Harrisonburg to ascertain the facts. In Hallman v. R. R., 169 N. C., 130, the plaintiff exchanged mileage for a ticket from Hickory to Winston, by Barber’s Junction, upon the assurance of the agent that the train would there make connection for Winston, and if not, he could go by Salisbury and Greensboro to Winston on the same ticket. He missed the connection and offered to let mileage be pulled from his book for the difference in the two routes. This was refused. He declined to pay the extra fare in money and was ejected. This Court sustained the recovery of damages on the ground that the company is liable for damages for the expulsion of a passenger caused by the mistake of the agent, although the conductor was obeying a rule of the company. The defendant’s liability was based upon the fact that the agent issuing the ticket misled the plaintiff. In Sawyer v. R. R., 171 N. C., 13, the plaintiff had bought a ticket from Norfolk, Va., to New Bern, N. 0. It was necessary for him to change ears at Ohocowinity-. The conductor on the train from Norfolk took up the plaintiff’s ticket and failed to return it to him, but gave him the usual conductor’s check. At Ohocowinity he took the train for New Bern. The new conductor demanded his tieket and refused to recognize his check. The plaintiff was ejected. The Court sustained the recovery, and said it was negligence in the first conductor in not returning the ticket when he knew the passenger was to change at Ohocowinity, and there was negligence also on the part of the other conductor, who could have satisfied himself by inquiring of two men who had come in on the same train from Norfolk with the plaintiff. The plaintiff did not have money to pay his way. But the Court further said that as the plaintiff was rightfully on the train, it was not incumbent upon him to pay a second time and to be at the expense of counsel fees and court costs to recover back the excess; that, it would 'be as fair to require the carrier to take the passenger to his destination and sue him to recover the fare which he should have paid, adding: “But neither is required to do this. Each party can stand upon its rights, if he so chooses. This has been often held. Harvey v. R. R., 153 N. C., 575, and cases there cited.” *64 There are numerous eases which hold that under circumstances of this kind the conductor should listen to reasonable explanation and use proper means to ascertain whether the passenger’s statements are correct, for notwithstanding the conductor may be obeying a rule of the company, it will be liable for the wrongful ejection of a passenger. 5 A. and E., 602. There are a few contrary decisions in some of the other States, but the weight of authority is in accordance with the rule laid down by this Court. The cases on both sides are collected in the notes to Melody v. R. R., 24 Ann. Gas., 730. No error.