Louisville & Nashville Railroad v. Hine

SHARPE, J.- — A breach of the duty which a common carrier as such owes to its passengers involves misfeasance as well as nonfeasance, and for an injury caused by such breach an action lies in favor of the passenger in tort as well as upon the contract of carriage. — 2 Sedg. on Dam. (8th ed.) § 859; Am. & Eng. Encvc. of Law 691; L. & N. R. R. Co. v. Gaines, 59 Am. St. Rep. (Ky.) 465, s. c. 99 Ky. 411; Sheldon v. Steamship, 18 Cal. 527. A passenger is bound to conform to the reasonable and proper regulations of the carrier respecting the time and mode of transportation and it may he conceded that ordinarily the conductor of a freight train may require of one attempting to take passage thereon evidence beyond his own statement and the production of a ticket that he has conformed to a regulation requiring special permission as prerequisite to his right to do so. It does not appear from the complaint, however, that there was any rule -of the defendant which required absolutely one who has actually obtained such permission to himself exhibit to the conductor the written evidence of such permission. In the absence of notice to the plaintiff of such absolute requirement he had a right to assume that the defendant’s ticket and telegraphing agent knew his duties and Avould perform them. If, therefore, as appears from the complaint the plaintiff was induced to board the train and begin the journey disarmed of the written permit by the conduct of the defendant’s agent and in reliance upon his advice and his undertaking to give the permit to the conductor, the [238] defendant could not rightfully eject him from the train for failure to exhibit a written permit to the conductor. The carrier cannot shield itself from the consequences of misconduct or mistake on the part of one of its agents acting within the scope of his duties which has naturally betrayed another of its agents into the final act of injury to the passenger.—Murdock v. Boston & Albany R. Co., 137 Mass. 293, 50 Am. Rep. 307; Lake Erie & W. R. R. Co. v. Fix, 88 Ind. 381, 45 Am. Rep. 464; Hufford v. Gr. Rapids & Ind. R. Co., 64 Mich. 631, 8 Am. St. Rep. 859; Head v. Ga. Pac. R. Co., 79 Ga. 358, 11 Am. St. Rep. 434; L. & N. R. R. Co. v. Gaines, supra. Upon such considerations it appears that the demurrers to the whole complaint were properly overruled. For the reasons last stated it also appears that plea numbered two contained no sufficient answer to the complaint, and the action of the court in striking it out was without error. A demurrer, does not lie to part of a complaint unless the suit be one upon a bond assigning breaches. To rid it of objectionable parts the remedy is by motion to strike them out.—Hester v. Ballard, 96 Ala. 410; Kennon v. W. U. Tel. Co., 92 Ala. 399; Pryor v. Beck, 21 Ala. 393. The issue being found in favor of the plaintiff, he was entitled to recover the damages proximately resulting to him from, the wrong including the expense and inconvenience to which he was put. Humiliation and indignity, if suffered by him from the ejection, are also elements of actual damages. Such damages may arise from a sense of injury and outraged rights engendered by the ejection alone without regard to the manner in which it was effected and though done only through mistake.—Head v. Ga. Pac. R. Co., supra; Chicago & Alton R. Co. v. Flagg, 43 Ill. 364; Philadelphia, &c. R. Co. v. Hoeflich, 50 Am. Rep. 223, s. c. 62 Mel. 300; Smith v. Pittsburg &c. R. R. Co., 23 Ohio 10. We think that under the undisputed facts appearing in the record the plaintiff was not entitled to recover for disappointment in respect of arrangements for his wedding or for any ridicule to which he may have been subjected so far as is shown by the proof. It is an un [239] disputed fact that after plaintiff had left the tram for a short distance only he was invited by the conductor through a special messenger to board the train and resume his journey and that he refused to do so except upon condition that the train should be backed to him. While by refusing such offer the plaintiff did not forfeit his right of action for the ejection he could not be allowed to aggravate his injury or to enhance his damages by a voluntary abandonment of the trip. On the contrary, it was his legal duty to use ordinary care to make his damage no greater than was necessary and to adopt reasonable and convenient means to that end, and the application of that rule would certainly have required of plaintiff his return to the train if the accomplishment of the journey ivas important.—Ga. Pac. R. Co. v. Fullerton, 79 Ala. 398; 5 Am. & Eng. Ency. Law, 693; Pullman Palace Car Co. v. Blum, 109 Ill. 20; Sedg on Dam. (7th ed.) 56. Under such circumstances, it cannot be held that the failure of plaintiff to make the trip or a consequent postponement of arrangements for his marriage ivas the necessary or proximate result of the wrong complained of. There was no proof that plaintiff was subjected to ridicule other than his statement that he “was guyed by some of the boys about toivn for being put off and not being permitted to ride.” It is not shown that the persons who did the “guying” were present when plaintiff was ejected, or that he alone did not inform them of it, or that their conduct was in any sense approximate upon the wrong. From what we have stated as the law controlling the Case it follows that charges numbered 17 and 18 requested by the defendant should have been given, and that the remainder of those charges were properly refused, and also the written charge requested by plaintiff because it affirmed the mentioned ridicule to be an element of damage should have been refused. The part of the oral charge excepted to was correct so far as it affirmed that humiliation could be the subject of plaintiff’s damage, and the exception thereto covering too much was not well taken. For the errors indicated the judgment must be reversed and the cause remanded.