Negligence of Imposed Duties, Carriers of Passengers

beyond that, for its business is only that of a common carrier and it is not under any other obligation; and so where a passenger is removed because there is a well grounded belief that he is breaking out with small-pox and there is no other reasonable way of protecting the other passengers from danger, then the duty of the carrier is to put him off at some place where he can find accommodations or where there are reasonable grounds to believe that he can find accommodations. It could not stop on a prairie and put him off where there was only a hamlet or single house, where he could not possibly obtain medical attendance, but it could put him off where there was any reasonable ground to believe that he could get proper care and medical attendance and ample accommodations, and if it there remove him from the train without unnecessary force, it has discharged its full measure of duty.'

The mere fact that a person is intoxicated does not authorize the employés of a railroad company to treat him with personal violence. The drunken condition of a passenger will not excuse a carrier from negligently leaving him exposed on a railroad track, where he has fallen from a train through the fault of the carrier, and in consequence is dazed and his mental faculties impaired." None of the cases hold that this right of exclusion may be exercised arbitrarily and inhumanly, or without due care and provision for the safety and well being of the ejected passenger. On the contrary, the duty of exercising such care and provision is universally recognized. Thus, in the Kansas case just cited, the court said: "Under these facts, the propriety of his removal cannot be doubted. The duty of the railroad company, however, with respect to Weber, did not end with his removal from the train. He was unconscious, and unable to take care of himself. The company could not leave him on the platform helpless, exposed, and without care or attention. It was its duty to exercise reasonable care and diligence to make temporary provision for his protection and comfort." This was a case of intoxication.

The Supreme Court of the District of Columbia, after recogniz

'Paddock v. Atchison, T. & S. F. R. Co. 4 L. R. A. 231, 37 Fed. Rep. 841. Illinois Cent. R. Co. v. Sheehan, 29 Ill. App. 90.

*Cincinnati, I. St. L. & C. R. Co. v. Cooper, 6 L. R. A. 241, 120 Ind. 469.

ing the right of removal, is careful to add: "Of course, for an abuse of this discretion, or for any oppression in its exercise, the company would be responsible.”1 In another case the

court, while conceding the right of ejection, said: "It does not follow that the right may be exercised in such manner, under such circumstances, or against a person in such mental or physical condition, as that death or serious bodily harm will necessarily, or even probably, result from putting him off."

In an action for damages it appeared that on a Sunday in December, at about 2 o'clock of the afternoon, a sober, respectable citizen of fifty-five years, entered a car of the defendant's street railway in New Orleans and paid his fare as a passenger. Nothing in the evidence indicates that he exhibited any sign of intoxication, or was guilty of the slightest impropriety of behavior, on entering the car, or until he had ridden a considerable number of squares (from Terpsichore to Third street); and the testimony is conclusive that, in point of fact, he was perfectly sober. After passing Third street he was suddenly stricken with apoplexy, accompanied, as the medical experts prove to be common, with severe vomiting. The car had numerous passengers to whom this vomiting undoubtedly occasioned serious discomfort and inconvenience. Some of them left the car on account of it, while others of those remaining suggested that he should leave the car, and took steps to call the attention of the driver to the necessity of removing him. The sick man had sufficient consciousness and sense of propriety left to observe this, and he said, "I will get out myself;" but, in rising to do so, he fell prone upon the floor, where he lay absolutely helpless. As far as appears, he never spoke again, and was incapable of taking any care whatever of himself. The driver then came back, and, with the assistance of a passenger, lifted him bodily, carried him out of the car, and laid him down in the street between the car track and the gutter, between two and three feet from the former.

The evidence is conclusive, that almost immediately afterwards 'Lemont v. Washington & G. R. Co. 1 Mackey, 180, 47 Am. Rep. 238. Louisville, C. & L. R. Co. v. Sullivan, 81 Ky. 625, 16 Am. & Eng. R. Cas. 390. See also Hall v. South Carolina R. Čo. 28 S. C. 261; Lovett v. Salem & 8. D. R. Co. 9 Allen, 557; Higgins v. Watervliet Turnp. & R. Co. 46 N. Y. 23.

and while the car was moving off, he shifted his position, by some convulsive movement, so that his legs were across the rail of the track. This is proven by passengers who saw him in this position as the car moved away, and by others who came to him immediately afterwards. The driver, however, after thus summarily disposing of his stricken passenger, paid no further attention whatever to the matter. He took no steps to secure for him any relief or assistance. It is doubtful if he made any report of the incident to his employers, and, if he did, it was not acted upon. A female passer-by, observing his perilous position across the track, went to his assistance, and, with the aid of a gentleman, removed and laid him on the sidewalk. Here he remained for more than four hours, on a bleak, drizzling December day, in the open street, without aid or relief in his terrible condition. At last the police authorities came to his assistance, and he was conveyed to the Charity Hospital, where he died on the following morning. In the action for the benefit of his widow the conduct of the conductor of the car, was in the appellate court, declared to be a gross violation of the duty owing by the carrier to a helpless passenger, and a verdict against the carrier was affirmed.'

Where a carrier, without reasonable ground, has removed a passenger under the supposition that he was breaking out with small-pox, in considering the question of damages, the jury have the right to take into account all the money he has necessarily paid out in expenses, and the value of the time he lost by reason of his detention and the pain and suffering of the injury consequent upon his removal-not because the pain, suffering, and injury which would come in the natural course of events from the disease with which he was suffering, would be damage for which the railroad company would be responsible, but anything which came by any increase in the disease aggravated by the expulsion or brought about by the expulsion, it would be responsible for; and so any permanent or continued injury to his system which had followed from that act in any way is to be taken into account."

'Conolly v. Crescent City R. Co. 3 L. R. A. 133, 41 La. Ann. 57.

'Paddock v. Atchison, T. & S. F. R. Co. 4 L. R. A. 231, 37 Fed. Rep. 841.

CHAPTER XII.

DUTY TO PROVIDE CARS-RESPONSIBILITY.

§ 68. Must Provide Cars and Run on Schedule Time. § 69. Statutes to Secure Safety of Passengers must be Complied with. § 70. Must Provide Seats for Passenger.

§ 71. No Discrimination must be Shown.

72. Drawing Room and Sleeping Car, Security of.

873. Sale of Berth or Seats in Sleeping or Parlor Car, and Regulations Therein.

§ 74. Liability for Passengers' Loss of Property in Sleeping or Palace Car.

§ 68. Must Provide Cars and Run on Schedule Time.

Carriers are bound to provide cars in reasonable anticipation of the wants of the public' and to run their trains in accordance with their advertisements. When a railroad company has invited the public to take passage upon a special train at a station, and agreed to carry for a special rate, passengers have the right to expect reasonable accommodations and there or on the train, to obtain tickets; but a railroad company is not guilty of negligence in failing to provide with a seat a passenger who voluntarily boards a crowded train and takes his place on a car platform, without complaint or effort to secure better accommodations. And when an unusual, extraordinary demand for transportation of

1 Lafayette & 1. R. Co. v. Sims, 27 Ind. 59. 'Hawcroft v. Great Northern R. Co. 8 Eng. L. & Eq. 362, 21 L. J. Q. B. 178, 16 Jur. 196; Denton v. Great Northern R. Co. 5 El. & Bl. 860; Boston & M. R. Co. v. Bartlett, 3 Cush. 227; Sears v. Eastern R. Co. 14 Allen, 433; Heirn v. McCaughan, 32 Miss. 17; Jencks v. Coleman, 2 Sumn. 221; Bennett v. Peninsular & O. S. B. Co. 6 C. B. 775; Saltonstall v. Stockton, Taney, 11; Elmore v. Sands, 54 N. Y. 512; Day v. Owen, 5 Mich. 520; Bennett v. Dutton, 10 N. H. 481.

'Chicago, St. L. & P. R. Co. v. Graham (Ind. App.) 11 Ry. & Corp. L. J. 57. 'Olivier v. Louisville & N. R. Co. 43 La. Ann. 804.

passengers occurs, the carrier should be held only to such diligence as is reasonable under the circumstances.'

But where custom or the peculiar circumstances justify the requirement the passenger must pay when he engages his passage. If he does not the carrier may fill up the place with other passengers who are ready to make the proper deposit.' The mere taking of a ticket on a railway, does not in itself amount to a contract on the part of the railway to carry-at a special time-or impose upon it a duty to have a train ready to start at the time at which the passenger is led to expect it. There must be some act on the part of the railroad company, leading the passenger into conduct involving him in a loss, for which it can not offer a reasonable excuse. But a railroad company which has published a schedule of trains, and which fails to comply with its announcement, unless excused by special circumstances, is liable to a person sustaining injury from such failure for the damages actually sustained by him as a direct necessary result thereof. Damages

for mental suffering are recoverable against a carrier which fails to perform its contract of carriage, because of which a ticketholder is compelled to purchase tickets over another line and is subjected to serious delays in transportation and in the receipt of his baggage.

Where according to the schedule of trains, a passenger arrives at a station intending to take passage, and he finds no train ready and is compelled to remain over the night, and in consequence of the delay, he fails to keep an appointment and complete business arrangements, while he will be entitled to recover the actual expenses incurred at his hotel, he cannot recover beyond more than nominal damages. While he might have performed his journey by some other method, at the expense of the negligent carrier, not having done so, he is restricted to actual expenses. But 'Chicago & A. R. Co. v. Fisher, 31 Ill. App. 36; Gordon v. Manchester & L. R. Co. 52 N. H. 596. But see Hawcroft v. Great Northern R. Co. 8 Eng. L. & Eq. 362.

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