Southern Railway Co. v. Farquhar

McCLELLAN, J. (1) Where a person has regularly purchased a ticket for transportation by a carrier to a definite destination, and such ticket holder mistakes,. [419] in good faith, and without fault attributable to the carrier, the train on which he has the right to be carried, and enters the wrong train of the carrier, on which his contract does not give him the right to be carried, he is a passenger until, after being informed of his mistake, his conduct renders him a trespasser, and is entitled to the protection accorded passengers against negligence for which the carrier is responsible. — 4 Elliott on Railroads, § 1578a, p. 377; Cin. R. R. Co. v. Carper, 112 Ind. 26, 13 N. E. 122, 14 N. E. 352, 2 Am. St. Rep. 144; Lake Shore Ry. Co. v. Rosenzweig, 113 Pa. 519, 6 Atl. 545. (2) It is the duty of the carrier’s conductor who has discovered the fact to inform such person of his mistake and to afford him a reasonable opportunity to disembark or to put him off at a proper place. — Lake Shore Ry. Co. v. Rosenzweig, supra. The carrier has the right to eject a ticket holder who is on the wrong train, provided the ejection is effected in a proper manner and at a reasonably safe place under the circumstances. —S. & N. R. R. Co. v. Huffman, 76 Ala. 492, 52 Am. Rep. 349; L. & N. R. R. Co. v. Johnson, 92 Ala. 204, 9 South. 269, 25 Am. St. Rep. 35. Subject to the requirements for care in respect of the act of expulsion of one not entitled to ride on the train he enters, and in respect of the time, place, and circumstances under and at which the expulsion is effected, the carrier may eject him at any point, whether at or near a station or not. — L. & N. R. R. Co. v. Johnson, supra. With reference to the stated duty to a passenger who is found to be aboard the wrong train, it cannot be affirmed, as a matter of law applicable under all circumstances, what would be or is a proper place for affording the passenger an opportunity to disembark or to eject him. Circumstances conceivable might, in the [420] interest of safety to the train, quite reasonably forbid the stopping of a train at points short of the next star tion after the passenger’s error was discovered. The schedule of the train, with reference to which other nearby trains opposed or following were being operated, might suggest, in all proper prudence, the danger of stopping the train between stations. The nearness of the next station after the discovery of the passenger’s error might, in and of itself, entirely justify the conductor in taking the passenger to that not remote station. Other illustrative circumstances may be readily supposed. But, on the' other hand, it is equally as clear that the conductor would breach the stated duty to the passenger, of whose error that representative of the carrier has become aware, if he carries him an unrea? sonable distance, after such knowledge comes to the conductor, without advising him of the mistake and without affording the passenger a fair opportunity, in view, of the care exacted on the part of the conductor by the rule declared in L. & N. R. R. Co. v. Johnson, supra, to leave thé train. If, as has been held here, the carrier is not restricted in the carrier’s right to eject one wrongfully on its train to any particular place or to a station’s environs, then certainly a passenger who had, in good faith, mistaken the train he should have entered for transportation towards his destination should not be restricted to' a station ahead in respect of his right to have a fair opportunity to disembark and save the further consequences of his error. (3) Counts 3 and 5 show, as a matter of necessary inference at least, that the plaintiff was aboard the wrong train. The gist of the third count is the negligent failure of the conductor to notify the plaintiff at the time he collected his ticket that he was aboard the wrong train. Common knowledge and common ex [421] perience alike lead to the conclusion that a conductor who collects the tickets on his train knows to what points the tickets collected read. That is, as all must know, a chief function of a conductor whn collects tickets on his train. Being so, it must follow that to charge such an agent with negligent failure to notify a mistaken passenger of his error is necessarily predicated of the agent’s present knowledge, when he takes up the ticket held by the erring passenger, of that passenger’s mistake; and thereupon it became the duty of the thus informed agent to advise the passenger and to take account of the agent’s further duty to allow him to disembark at a proper place, considering the circumstances of care and safety to which we have alluded. Our opinion is that count 3 was not subject to the grounds of demurrer addressed thereto. (4) The gist of the fifth count is the negligent failure or refusal of the conductor, advised, as has been indicated, of plaintiff’s error, to stop the train and allow plaintiff to disembark. This count is faulty.in that it omits to exclude the presence of circumstances which may have rendered unsafe or undesirable the stopping of this train short of the point at which it was stopped, and plaintiff was allowed to disembark. But no ground of the demurrer, original or amended, took this objection to the count. The grounds assigned are without merit. (5) The first count is based upon consequences attending the taking of the wrong train under misadvice or misdirections given by the defendant. — S. & N. R. R. Co. v. Huffman, supra. (6) There was no error in submitting to the jury the issues made by the counts mentioned. Nor Avas there error in refusing the special charge set out in the tenth assignment. It Avould have, if given, excluded from the [422] jury’s consideration, as under the issues raised by tbe first count, the asserted misdirection or misinformation given tbe plaintiff at or about tbe entrance to tbe cars by a representative of defendant. (7) If tbe plaintiff was misdirected by defendant’s servants or was- negligently carried to North Birmingham, when be might, with all prudence, have been allowed to leave tbe train nearer to station at Birmingham, he was entitled to recover sufficient damages to compensate him for tbe wrong and its natural proximate consequences. Tbe amount awarded by tbe jury is $100. It cannot be pronounced excessive, under tbe evidence before tbe jury, and to which tbe jury might reasonably have given a proper credence. Whether, under tbe circumstances disclosed by this record, tbe plaintiff should have returned by street car, instead of walking, was a jury question, which tbe special instruction set out in tbe sixth assignment would have, if given, denied consideration by tbe jury. No error appearing, tbe judgment is affirmed. Affirmed. Anderson, C. J., and Sayre and Gardner, JJ., concur.