Wilson v. New Orleans & Northeastern R. R.

Arnold, J., delivered the opinion of the court. Appellant’s claim for damages is based on the failure of appellee to stop its train' and carry him as a passenger thereon. By the terms of a ticket which he had previously purchased, appellant was to be returned from Barnett to Enterprise only on trains advertised to stop at those points. The train on which he sought passage was not so advertised, and on the contract evidenced by the ticket he has no cause to complain of the judgment from which he appeals. His right to carriage on that ticket was limited by the terms of the ticket. A special contract is not necessary to entitle one to ride on a railroad train, but if a valid contract is in fact made for that purpose, the rights and responsibilities of the parties thereto must be governed by it. Ordinarily, a ticket is not a contract, but it may be and often is a contract, as where it is sold at less than the general [356] rate and is accepted and is to be used and enjoyed on conditions therein specified. The reduced rate constitutes sufficient consideration for the restrictions usually contained in such tickets. The railroad company in such case binds itself to carry at a low rate on the conditions named in the ticket, and if the passenger accepts such ticket he cannot take advantage of the reduction in the rate and reject the conditions on which the reduction was made. Pennington v. Phila. & R. R. R. Co., 18 Am. & Eng. R. R. Cas. 310; Howard v. Chicago, etc., R. R. Co., 61 Miss. 194. But the trial in the lower court on appeal from a justice of the peace, in which there were no written pleadings, was not confined to- the rights conferred or the duties imposed by the special contract. Appellant had rights involved in common with the public, .and appellee was under obligations to the public disconnected from the contract. The contract did not preclude appellant from paying the fare or traveling on the train like any other citizen. It is shown that the train in question would and should haVe stopped at Barnett if it had been signaled for that purpose. If it was so signaled by appellant and others, and the signals made were seen, or might by proper attention have been seen, by the employees of the company in charge of the train and were disregarded by them, the company is liable on the ground of a violation of the general duty which it owed to the public. Any one injured by such breach of duty could maintain an action to recover damages therefor. Heirn v. McCaughan, 32 Miss. 17. And under these circumstances, if the employees of the eompany willfully, recklessly, or capriciously failed to stop the train, the company thereby became subject to exemplary damages. Chicago, etc., R. R. Co. v. Scurr, 59 Miss. 456; Heirn v. McCaughan, 32 Ib. 17. There was conflict of testimony as to whether the signals made for the train to stop were seen, or might, by reasonable care, have been seen, by the employees of the company, and it was error for the court to instruct the jury that there was no proof of willful wrong, and that plaintiff was not entitled in any view of the case to recover more than the actual pecuniary loss sustained by him. [357] Such instruction is proper only where there is no evidence showing a state of case that would justify and maintain a verdict awarding exemplary damages. Chicago, etc., R. R. Co. v. Scurr, 59 Miss. 456. Reversed.