Tarbell v. Northern Central Railway Co.

Learned, P. J.: The learned judge charged the jury that they had no right to give punitive damages, but that if the plaintiff’s feelings were injured, he had a right to be compensated for such injury. This is quite correct. If the defendants did plaintiff a wrong, they should make compensation both for the pecuniary and for the mental injury. The question whether the train agent waived the defendants’ regulations, and agreed that the plaintiff might “ stop over ” without receiving a “stop-over” ticket, was properly left to the jury. The evidence of the plaintiff was sufficient to justify the jury in finding that such an agreement was made by the train agent. There was some contradictory evidence; but the train agent did not recollect the plaintiff, and really his testimony depended only on his knowledge of his ordinary custom in such matters. The only remaining question respects the authority of the train agent to vary the rules and regulations of the defendants; or, more accurately, it respects the right of the plaintiff to trust to, and act upon, the agreement made with him by the train agent. The cases proved on the trial-as evidence of Pennsylvania law do not aid the defendants on this point. In Dietrich v. Penn. R. R. Co. (71 Penn. St. R., 432), it appears that the plaintiff did not “ stop over ” by the consent of any person. In Oil Creek and Al. R. R. Co. v. Clark (72 Penn. St. R., 231) the same fact appears. In both cases the passenger got off the train without any consent or promise from any one, that he might continue his journey on another train. But in the present case the jury must have found that the train agent, (an officer who appears to exercise the authority usually given to conductors,) informed the plaintiff, before he got off the train, that he might resume his journey on the next train upon the same [54] ticket. On the strength of this assurance the plaintiff got off, thus surrendering the right of riding any farther upon that train. Unless, then, the plaintiff was to be permitted to act on the assurance of the train agent, the defendants, through their agent, would be allowed to perpetrate the fraud of depriving the plaintiff of part of the benefit of his contract by a false statement. The defendants, by inducing the plaintiff to get off the train, relieved themselves of the risk and labor of transporting him on that train any farther. They must therefore fulfill the statement by which their agent induced the plaintiff to get off; inasmuch as it was a statement as to which the plaintiff was clearly entitled to rely upon the train agent. The train agent was in control of the train. He was evidently the officer of whom passengers should inquire as to what they might do in respect to their journey, according to the rules of the company. It was within the scope of his apparent authority to tell the plaintiff what the effect would be of his getting off that train. (Story’s Agency, § 452; Penn. R. R. Co. v. McCloskey, 23 Penn. St., 526.) The defendant cites Denny v. N. Y. C. and H. R. R. R. Co. (5 Daly, 50), but in that case the plaintiff had got off a train by the consent of the conductor, and had got on another. He then got off the second without any consent from the conductor, and it was held that the former permission did not give him a right to get on a third train. He had resumed his passage under a continuous ticket, and he had obtained no permission to get off from the conductor under whom he was then traveling. That is not the present case. We think that the judgment and order should be affirmed, with costs. Bocees and Boardman, JJ., concurred. Judgment and order affirmed, with costs.