Van Camp v. Michigan Central Railroad

Grant, J. (after stating the facts). The statute is a penal one, and will not be enlarged by construction. Crosby v. Railroad Co., 131 Mich. 288 (91 N. W. 124). In several cases we have discussed what constitutes a “legal and just excuse ” within the meaning of the statute. Freeman v. Railroad Co., 65 Mich. 577 (32 N. W. 833);. Reed v. Railway Co., 100 Mich. 507 (59 N. W. 144); Hoyt v. Railway Co., 112 Mich. 638 (71 N. W. 172). The learned counsel for the defendant contend that the undisputed facts do not bring the case within the statute. They admit that the defendant had determined to put on this extra train for summer service to leave Kalamazoo at 4:45 p. m. for South Haven, passing through. Grand Junction; that time-tables showing such train were prepared, and public posters were printed and sent to the agents along the line for public distribution; that they were to take effect June 14th. But they insist that immediately thereafter, and before June 14th, notice was sent to the several agents that this extra summer train would not be put on until further notice, and that a new public poster or time-table for distribution, omitting this extra train, was issued and published. If the facts were as stated, the defendant’s position would undoubtedly be correct.. Railroad companies may change their time-tables, may take off and put on trains, and all that the statute requires is that they give reasonable notice to the public of such change. Sears v. Railroad Co., 14 Allen, 433 (92 Am. Dec. 780). If, when such reasonable notice is given, the ticket agent misinforms a passenger, this statute does not apply, and the passenger so misinformed can recover only his actual damages. Ohio, etc., R. Co. v. Hatton, 60 Ind. 12; Marshall v. Railway Co., 78 Mo. 610; St. Louis, etc., R. Co. v. Atchison, 47 Ark. 74 (14 S. W. 468). In such case he must count upon the common-law liability, and not upon that of the statute. The mistake of counsel is one of fact, and not of law. The undisputed facts are that the plaintiff applied two or .more times to the authorized agent of the defendant to471 ascertain about this train. She was shown a time-table issued by defendant and in the hands of its duly authorized agent. She was under no obligation to look for a schedule posted in the defendant’s depot or published in the newspapers. She went' to the proper place for the most reliable information. She obtained it by being shown a printed schedule. She relied on it as well as on the representations of the agent. This made her .case, and entitled her to a judgment under the statute, unless the defendant showed ‘ ‘ a legal and just excuse ” for not carrying her in accordance with her contract of carriage and printed schedule. The defendant wholly failed to show that the notice countermanding the advertised schedule was delivered to its agent at Ypsilanti. Its only witness was the agent at Kalamazoo, who had nothing to do with issuing or countermanding schedules. He did not know, and did not testify that he knew, that any such countermand or notice was sent to the agent at Ypsilanti. Neither the agent at Ypsilanti nor the defendant’s agent who was authorized to issue the schedule was called upon to testify that any such notice or countermand was sent to or received by the agent at Ypsilanti. It cannot, therefore, be said that the act which caused the plaintiff to purchase her ticket and take the train was solely that of the ticket agent at Ypsilanti. On thp contrary, it was the act of the defendant itself in issuing and publishing its schedules and failing to notify its agent of the change. So far as this record shows, the agent relied upon this schedule, and was authorized to rely upon it until notified otherwise. The plaintiff made a case within the statute, and the judgment is affirmed. Moore, O. J., and Montgomery, J., concurred with Grant, J.