the

[e] The refusal of a ticket agent to sign and stamp a return ticket so as to make it good for the return trip, because he thought the signature was not genuine,, but without malice or oppression, does not warrant the allowing of exemplary damages, where a friend at once advanced the money to plaintiff for a return ticket, which was accepted, and thereby avoided all inconvenience or suffering from the agent's acts. New York, etc., R. Co. v. Leander, (Tex. Civ. A.) 46 SW 843.

[f] Delay.-(1) A party purchasing transportation from a railroad, who was delayed on the way by reason of a washout known to the railroad agent at the time the ticket was bought, and by the change in the route of a certain train, noncontinuance of another, and the wrong directions of agents, so that he reached his destination four days late, can recover only the actual damages suffered, and not exemplary damages. Illinois Cent. R. Co. v. Pearson, 80 Miss. 26, 31 S 435. (2) Where there is nothing to show that, when a passenger on a mixed freight and passenger train was accepted, the conductor knew, or had reasonable cause to believe, that he would not be able to run his train that night, or that he would be ordered to lie over at an intermediate point, punitive damages cannot be awarded because of a delay caused by an order to lie over at such point. Black v. Charleston, etc., R. Co., 87 S. C. 241, 69 SE 230, 31 LRANS 1184.

83. Cook v. Southern R. Co., 153 Ala. 118, 45 S 156; Illinois Cent. R. Co. v. Dobbs, 97 Miss. 865, 53 S 409; Carr v. Toledo Tract. Co., 19 Oh. Cir. Ct. 281, 10 Oh. Cir. Dec. 296.

[a] Illustrations.-(1) Where plaintiff having been compelled to debark from defendant's train short of his desired destination suffered no other injury than an expenditure of fifty cents for a hack, and the conductor's act in compelling such debarkation was not attended with any element of aggravation, but was due to a mere unintentional error of judgment, plaintiff could not recover punitive damages. Cook v. Southern R. Co., 153 Ala. 118. 45 S 156. (2) Where a conductor through inadvertence took up a passenger's round trip ticket without returning the return ticket, and there was no wantonness and disregard of the passen

89

ger's rights, the carrier was liable only for actual damages. Illinois Cent. R. Co. v. Dobbs, 97 Miss. 865, 53 S 409. (3) Where in an action by a passenger who was required to pay additional street railroad fare by reason of a mistake of a conductor in making out a transfer or in informing plaintiff as to the destination of certain cars, where no malice or insult appears, punitive damages cannot be recovered. Carr v. Toledo Tract. Co., 19 Oh. Cir. Ct. 281, 10 Oh. Cir. Dec. 296.

84. Tennessee Cent. R. Co. V. Brasher, 97 SW 349, 29 KyL 1277; Yazoo, etc.. R. Co. v. Hughes, 100 Miss. 95, 50 S 627; St. Louis, etc., R. Co. v. Freeland, 39 Okl. 60, 134 P 47. 85. Southern R. Co. v. Lanning, 83 Miss. 161, 35 S 417; Yazoo, etc., R. Co. v. White, 82 Miss. 120, 33 S 970; Williams v. Carolina, etc., R. Co., 144 N. C. 498, 57 SE 216, 12 LRA NS 191, 12 AnnCas 1000 and note; Milhous v. Southern. R. Co.. 72 S. C. 442, 52 SE 41, 110 AmSR 620.

86. St. Louis, etc., R. Co. V. Garner, 96 Miss. 577, 51 S 273; Thomas v. Southern R. Co., 122 N. C. 1005, 30 SE 343.

87. Yazoo, etc., R. Co. v. Mitchell, 83 Miss. 179, 35 S 339; Yazoo, etc., R. Co. v. Faust, (Miss.) 32 S 9.

[a] Carrying beyond flag station. -In the absence of malice, insult, or willful wrong, where a passenger train has failed to stop at a flag station where passengers get on and off, and a passenger for such station jumps off and walks back without sustaining actual damage or injury, exemplary damages are not recoverable. Kansas City, etc., R. Co. v. Fite, 67 Miss. 373, 7 S 223; Dorrah v. Illinois Cent. R. Co., 65 Miss. 14, 3 S 36, 7 AmSR 629; Chicago, etc., R. Co. v. Scurr, 59 Miss. 456, 42 AmR 373.

88. Inadequate or excessive damages: Generally see Damages [13 Cyc 121]. For personal injuries generally see infra § 1402.

For wrongful ejection of passenger see supra § 1212.

89. See generally Damages [13 Cyc 135].

R.

90. Ala.-Central of Georgia Co. v. Morgan, 161 Ala. 483, 49 S 865; Central of Georgia R. Co. v. Ashley, 159 Ala. 145, 48 S 981; Southern R. Co. v. Nowlin, 156 Ala. 222, 47 S 180, 130 AmSR 91; North Alabama Tract. Co. v. Daniel, 3 Ala. A. 428, 57 S 120. Ark.-Chicago, etc., R. Co. v. Floyd, 115 Ark. 607, 171 SW 913; St. Louis,

etc.,

R. Co. v. Evans, 94 Ark. 324,

126 SW 1058.

Ga.-Southern R. Co. v. Wallis, 133 Ga. 553, 66 SE 370, 30 LRANS 401, 18 AnnCas 67; Atkinson v. Mercer, 11 Ga. A. 462, 75 SE 676.

Ind.-Indiana Union Tract. Co. v. Heller, 44 Ind. A. 385, 89 NE 419.

Ky. Illinois Cent. R. Co. v. Fieming, 148 Ky. 473, 146 SW 1110; Cincinnati, etc., R. Co. v. Strosnider, 121 SW 971; South Covington, etc., R. Co. v. Quinn, 110 SW 404, 33 KyL 534; Baltimore, etc., R. Co. v. Hudson, 92 SW 947, 29 KyL 298; Louisville, etc., R. Co. v. Covetts, 82 SW 975, 26 KyL 934.

Mich.-Moss v. Detroit, etc., R. Co., 188 Mich. 1, 154 NW 140; Schroeder v. Detroit, etc., R. Co., 174 Mich. 684, 140 NW 968.

Minn.- Guthier V. Minneapolis. etc., R. Co., 87 Minn. 355, 91 NW 1096.

Miss.-Yazoo, etc., R. Co. v. Mattingly, 37 S 708.

Mo.-Cook v. Lusk, 186 Mo. A. 288, 172 SW 81; Brassfield v. Hannibal, etc., R. Co., 19 Mo. A. 651.

Okl.-St. Louis, etc., R. Co. V. Davis, 37 Okl. 340, 132 P 337. R.

Tex.-St. Louis Southwestern Co. v. Foster, 46 Tex. Civ. A. 517, 103 SW 194; St. Louis Southwestern R. Co. v. Germany, (Civ. A.) 56 SW 586; Texas, etc., R. Co. v. Sherbert, (Civ. A.) 42 SW 639; St. Louis, etc., R. Co. v. Berry, 4 Tex. A. Civ. Cas. § 166, 15 SW 48. Wash.-Sievers

V. Dallas, etc., Nav. Co., 24 Wash. 302, 64 P 539. [a] Damages held not excessive: (1) Fifty dollars. St. Louis Southwestern R. Co. v. Germany, (Tex. Civ. A.) 56 SW 586 (for starting a train notwithstanding a promise of the conductor to hold it until plaintiff could buy a ticket). (2) One hundred dollars. Southern R. Co. V. Farquhar, 192 Ala. 415, 68 S 289 (to a passenger boarding the wrong train because of misdirection, or being negligently carried on the wrong train to a station unreasonably distant); Indiana Union Tract. Co. v. Heller, 44 Ind. A. 385, 89 NE 419 (for failure to permit a passenger to board car or train); Brassfield v. Hannibal, etc., R. Co., 19 Mo. A. 651. (3) One hundred fifty dollars. Atkinson v. Mercer, 11 Ga. A. 462, 75 SE 676 (for delay and inconvenience). (4) Two hundred fifty dollars. Southern R. Co. v. Wallis, 133 Ga. 553, 66 SE 370, 30 LRANS 401, 18 AnnCas 67 (for refusing to stop at a flag station, whereby piaintiff was compelled to walk home a distance of seven miles in cold weather and over muddy roads, and he was made sick and confined to his bed for some time). (5) Three hundred fifty dollars. Chicago, etc., R. Co. v. Floyd, 115 Ark. 607, 171 SW 913 (in favor of a passenger who earns sixty-five dollars a month, and who is made ill by being compelled to walk five miles because of the misrepresentations of the carrier's agent as to connections, which illness lasts two months, one of which is spent in bed, during which time the passenger suffers much discomfort and pain, and expends twelve dollars for doctor's services). (6) Four hundred twentyfive dollars. South Covington, etc., R. Co. v. Quinn, 110 SW 404, 33 KyL 534 (for fright and sickness resulting from a failure to give a transfer, whereby plaintiff, a young girl, was compelled to walk home on a dark evening); Texarkana, etc., R. Co. v. Schevoight, (Tex. Civ. A.) 181 SW 802 (in favor of a passenger who was carried to a different place from that to which she had secured a ticket, and suffered long delays, and was ridiculed). (7) Five hundred dollars. Central of Georgia R. Co. v. Ashley, 159 Ala. 145, 48 S 981 (where a passenger, as a result of the carrier's failure to notify her where to change cars, was deflected in her journey and compelled to bear added travel and sojourn in hotels, resulting in annoyance, illness, anxiety, and some expense); Louisville, etc., R. Co. v. Covetts, 82 SW 975, 26 KyL 934 (for setting down a passenger short of a station). (8) Six hundred dollars. St. Louis Southwestern R. Co. v. Foster, 46 Tex. Civ. A. 517, 103 SW 194 (where a passenger, let off at the wrong station by the carrier's fault, was chilled through in driving

to her destination, contracted a cold, and was sick for some time afterward, and the evidence showed mental and physical suffering). (9) One thousand dollars. North Alabama Tract. Co. v. Daniel, 3 Ala. A. 428, 57 S 120 (where a street car passenger signaled defendant's servants to stop the car on which he was riding at a point near his home, but the car was not stopped there or at the next street crossing, a point equally near his home, but he was taken to the end of the line and then compelled to walk back, and where there was also evidence indicating an aggravation of the wrong by mistreatment on the part of defendant's employees). (10) One thousand five hundred dollars. Southern R. Co. v. Nowlin, 156 Ala. 222, 47 S 180, 130 AmSR 91 (for failure by a carrier to inform a passenger as to the best and quickest route, where as a result of the misdirection the route taken was slower and less desirable than another route, and she was compelled to make four or five stops and as many changes of cars, in one or two instances traveling on a freight train to make connections, and was days in making the trip, and compelled to stand for a long time, and was greatly shaken, and being in poor health, which fact was communicated to the carrier, was made worse by the trip and put to expense for medicine and medical attention). (11) One thousand seven hundred fifty dollars. Baltimore, etc., R. Co. v. Hudson, 92 SW 947, 29 KyL 298 (for refusal to validate return portion of ticket, insult and humiliation, and nervous shock). (12) Two thousand five hundred dollars. Yazoo, etc., R. Co. v. Mattingly, (Miss.) 37 S 708 (for refusal to carry accompanied by insult and indignity).

two

[b] Carrying beyond station. Verdicts for carrying passengers beyond their stations have been held not excessive as follows: (1) Twentyfive dollars. Harlan v. Wabash R. Co., 117 Mo. A. 537, 94 SW 737 (for carrying a passenger twenty miles beyond his station, requiring him to wait two or three hours at night untill he could be carried back). (2) Seventy-five dollars. St. Louis Southwestern R. Co. v. Knight, 81 Ark. 429, 99 SW 684. (3) One hundred dollars. San Antonio Tract. Co. v. Crawford, (Tex. Civ. A.) 71 SW 306 (where a passenger on a street car is carried past her destination against her will, and the motorman thereafter addresses her in an insulting manner, and shakes his fist in her face). (4) One hundred and twenty-five dollars. Rawlings V. Wabash R. Co., 97 Mo. A. 511, 71 SW 535. (5) Two hundred and eighteen dollars. Louisville, etc, R. Co. V. Guy, 37 SW 1043, 18 KyL 750 (where plaintiff who was a woman in a delicate condition was compelled to walk four hundred yards, during a hot day, on a rough and rocky road). | (6) Two hundred and fifty dollars. Chesapeake, etc., R. Co. v Lynch, 89 SW 517, 28 KyL 467. (7) Four hundred dollars. Birmingham R,, etc,, Co. v. Torpy, (Ala. A.) 70 S 198; Louisville, etc, R. Co. v. Rinicker, 17 Ind. A. 619, 47 NE 239. (8) Four hundred and twenty-five dollars. Schroeder v. Detroit, etc., R. Co., 174 Mich 684, 140 NW 968 (for setting down a passenger on a rainy night a mile past her station, compelling her to walk in the rain till she became cold and exhausted, and to call on a stranger for aid in reaching her destination). (9) Five hundred dollars. Higgins v. Louisville, etc., R. Co., 4 Miss. 80, 8 S 176 (where a passenger is wantonly carried three quarters of a mile beyond his station, and is compelled to walk back at night in the rain); St. Louis, etc., R. Co. v. Davis, 37 Okl. 340, 132 P 337; Texas, etc., R. Co. v. Gott, 20 Tex. Civ. A. 335, 50 SW 193 (where

a passenger was negligently carried past her destination, and suffered from fright and lack of food, and a subsequent sickness caused thereby). (10) One thousand dollars. Louisville, etc., R. Co. v. Roney, (Ky.) 127 SW 158 (where a woman is carried past her destination and is compelled to drive in the dark back to her home over a rough road, in company with a driver unacquainted with the road, and the road is So bad that she deems it best for her safety to get out and walk, and she becomes nervous and sick, and suffers with backache, breastache, and bearing-down pains for several weeks, which finally end in a miscarriage). (11) Thirteen hundred and seventy-five dollars. Guthier v. Minneapolis, etc., R. Co., 87 Minn. 355, 91 NW 1096. (12) Fifteen hundred dollars. Cincinnati, etc., R. Co. v. Richardson, 14 KyL 367. (13) Three thousand and five dollars. Louisville, etc., R. Co. v. Ballard, 88 Ky. 159, 10 SW 429, 10 KyL 735, 2 LRA 694 (compensatory and punitive damages in an action by a female passenger for being negligently taken beyond her station, where there is evidence of insulting conduct on the part of the employees of the company).

91. Ala.-North Alabama Tract. Co. v. Daniel, 158 Ala. 414, 48 S 50; Louisville, etc., R. Co. v. Sanders, 7 Ala. A. 543, 61 S 482.

Ark.-Louisiana, etc., R. Co. V. Mason, 122 Ark. 477, 183 SW 977; Texarkana, etc., R. Co. v. Anderson, 67 Ark. 123, 53 SW 673.

Ga. Southern R. Co. v. Bryant, 105 Ga. 316, 31 SE 182; Atlantic Coast Line R. Co. v. Stephens, 11 Ga. A. 520, 75 SE 841.

Ind.-Cleveland, etc., R. Co. V. Quillen, 22 Ind. A. 496, 53 NE 1024.

Ky-Southern R. Co. v. Marshall, 111 Ky. 560, 64 SW 418, 23 KyL 813. Minn. Teryl v. St. Paul City R. Co., 121 Minn. 530, 141 NW 304. Miss.-Illinois Cent. R. Co. v. Dodd,

103

Miss. 643, 61 S 595; Memphis, etc., R. Co. v. Green, 52 Miss. 779. Mo.-Smith v. St. Louis, etc., R. Co.. 127 Mo. A. 53, 106 SW 108. Tex.-International, etc., R. Co. v. Harder, 36 Tex. Civ. A. 151, 81 SW 356; Missouri, etc., R. Co. v. Ball, 25 Tex. Civ. A. 500, 61 SW 327.

Wash.-Bartolini v. Grays Harbor R., etc., Co., 88 Wash. 341, 153 P 4; Leclaire v. Tacoma R., etc., Co., 62 Wash. 157, 113 P 268.

[a] Damages held excessive: (1) Fifty dollars. Illinois Cent. R. Co. v. Dodd, 103 Miss. 643, 61 S 595. (2) One hundred dollars. Illinois Cent. R. Co. v. Shackleford, (Miss.) 71 S 298 (to a passenger who failed to protest when compelled to ride, together with her friends, in a baggage coach for a distance of eight miles); Smith v. St. Louis, etc., R. Co., 127 Mo. A. 53, 106 SW 108 (for failure to afford plaintiff a reasonable opportunity to leave the train at the station). (3) One hundred fifty dollars. Louisville, etc., R. Co. v. Sanders, 7 Ala. A. 543, 61 S 482 (for fatigue, inconvenience, and annoyance in having to walk four miles instead of one, because of the carrier's failure to inform as to the stopping place nearest his destination); Cleveland, etc., R. Co. v. Quillen, 22 Ind. A. 496, 53 NE 1024 (where a passenger having bought a ticket to L alights from the train on notice from the conductor that he has arrived there, when in point of fact he is twelve miles therefrom, and he procures a team to drive to L at a cost of five dollars, and a delay of three hours in reaching L is caused thereby); International, etc., R. Co. v. Harder, 36 Tex. Civ. A. 151, 81 SW 356 (for delay). (4) Two hundred fifty dollars. Southern R. Co. v. Marshall, 111 Ky. 560, 64 SW 418, 23 KyL 813 (for a failure to hold a train for plaintiff according to agreement). (5) Three hundred dollars. Teryll v.

91

or the amount of damages

St. Paul City R. Co., 121 Minn. 530, 141 NW 304 (against a street car company for refusal to accept a transfer and compelling plaintiff to pay an extra fare). (6) Four hundred dollars. Atlantic Coast Line R. Co. v. Stephens, 11 Ga. A. 520, 75 SE 841. (7) Seven hundred fifty dollars. Leclaire v. Tacoma R., etc., Co., 62 Wash. 157, 113 P 268 (for delay, inconvenience, annoyance, sickness, etc., of a street car passenger). (8) Eight hundred seventy-five dollars. Chicago, etc., R. Co. v. Allison, 120 Ark. 54, 178 SW 401 (in favor of a white woman who was directed to ride in the negro coach and did so for three miles where there was no noise or misbehavior on the part of any passenger in the coach). (9) One thousand dollars. Missouri, etc., R. Co. v. Ball, 25 Tex. Civ. A. 500, 61 SW 327 (for compelling plaintiff's wife, a white woman, to ride in the negro coach for sixty miles). (10) One thousand five hundred dollars. Memphis, etc., R. Co. v. Green, 52 Miss. 779 (for failure of defendant's train to stop and take plaintiff on, where it appeared that plaintiff had to wait only a short time for a freight train which carried him to his destination). (11) One thousand seven hundred fifty dollars. North Alabama Tract. Co. v. Daniel, 158 Ala. 414, 48 S 50 (for a street car company's failure to permit a passenger to alight at his destination, and for indignities inflicted by employees, although he had to walk half a mile, and had been sick, and was made nervous, and was insulted by the employees, where he suffered no serious or permanent injuries and had habitually taunted the motorman on former trips).

[b] Carrying beyond station. Verdicts for carrying passengers beyond their stations have been held excessive as follows: (1) One hun dred and fifty dollars. Gulf, etc., R. Co. v. Gaedecke, (Tex. Civ. A.) 39 SW 312 (for failure to let a passenger off at a flag station). (2) Two hundred dollars. Howe v. Gibson, 3 Tex. Civ. A. 263. 22 SW 826. (3) Two hundred forty-nine dollars and fifty cents. Central of Georgia R. Co. v. Wood, 118 Ga. 172, 44 SE 1001 (for carrying plaintiff beyond her destination, where there is no evidence of any physical injury, and the utmost damage proved is several hours' delay and the missing of her dinner, and the conduct of the employees was in every respect accommodating). (4) Five hundred dollars. Texarkana, etc., R. Co. v. Anderson, 67 Ark. 123. 53 SW 673; Southern R. Co. v. Humphries, 108 Ga. 591, 34 SE 283. (5) Eight hundred thirty-three dollars and thirtythree cents. Chicago, etc., R. Co. v. Scurr, 59 Miss. 456, 42 AmR 373. One thousand dollars. Trigg v. St. Louis, etc., R. Co., 74 Mo. 147, 41 AmR 305 (for carrying a female passenger beyond her station, where there was no malice or other aggravating circumstance accompanying the negligent act, but on the contrary the servants of the company did everything possible to remedy the mistake in the way of providing food, shelter, etc.). (7) Two thousand dollars. Chattanooga, etc.. R. Co. V. Lyon, 89 Ga. 16, 15 SE 24, 32 AmSR 72, 15 LRANS 857. (where plaintiff was negligently carried beyond her station and compelled to walk back a distance of a mile and a half, which she did without injury or serious inconvenience).

(6)

[c] Refusal of admittance to regular train.—(1) Where defendant sold excursion tickets with the agreement that the holders might return if they chose on the regular train next day, and plaintiff, a young woman, offered to return the next morning, but, through some oversight in failing to give the conductor full notice of the terms on which the tickets were is

may be reduced.92

Exemplary damages. The above rules apply where the verdict includes exemplary damages.

[ 1283] M. Actions9-1. Nature and Form of Action. In case of a breach by the carrier of its duty or contract to transport a passenger, the latter ordinarily has a choice of remedies, and may sue either on the contract of transportation, or in tort for the breach of duty imposed by law, although under some circumstances the action must be in contract, and under others in tort.95

[§ 1284] 2. Jurisdiction and Venue.98 It has been held under various statutes that an action for

sued, she was refused, and she went to the house of a friend and remained some twelve or thirteen hours, and returned home on another train, using her ticket, and her time was worth one dollar and thirty cents a day, a verdict in her favor of one thousand dollars was grossly excessive. Goins v. Western R. Co., 59 Ga. 426. (2) In Hughes v. Western R. Co., 61 Ga. 131, the material facts were identical, and the court held that a verdict of fifty dollars for plaintiff, above actual expenses, was adequate compensation.

[d] Where a passenger unable to board a train at a flag station because of the failure of the train to stop, although signaled, was caught in a rainstorm, and became sick, and suffered personal injury, a verdict for one thousand dollars actual damages was excessive. Burns V. Alabama, etc., R. Co., 93 Miss. 816, 47 S 640.

92. Ala.-Central of Georgia R. Co. v. Morgan, 161 Ala. 483, 49 S 865. Ark.-Louisiana, etc., R. Co. V. Rider, 103 Ark. 558, 146 SW 849.

Miss.-Yazoo, etc., R. Co. v. Faust, 34 S 356. Mo.-Moss v Missouri Pac. R. Co., 128 Mo. A. 385, 107 SW 422.

Nev.-Burrus v. Nevada-CaliforniaOregon R. Co., 38 Nev., 156, 145 P 926.

Tex.-Beaumont, etc., R. Co. V.

Bishop, (Civ. A.) 160 SW 975; Gulf, etc., R. Co. v. Moore, (Civ. A.) 80 SW 426 [rev on other grounds 98 Tex. 302, 83 SW 362, 4 AnnCas 770].

[a] Damages reduced: (1) One hundred dollars to twenty-five dollars. Louisiana, etc., R. Co. v. Rider, 103 Ark. 558, 146 SW 849 (where a male passenger was induced by the negligence of the trainmen to get off at the wrong station, and was compelled to walk six miles, carrying a valise weighing fifteen or twenty pounds, on a starlit night in balmy weather). (2) Three hundred dollars to two hundred dollars. Moss v. Missouri Pac. R. Co., 128 Mo. A. 385, 107 SW 422 (where a passenger was notified to alight at night at a station five miles distant from the destination to which he was entitled to be carried, and was compelled to walk to such destination through mud and rain, but there was no case made for exemplary damages). (3) Four hundred dollars to two hundred dollars. Louisiana, etc., R. Co. v. Rider, 103 Ark. 558, 146 SW 849 (where a female passenger accompanied by her husband left a train at the wrong station, owing to the negligence of the trainmen, and walked home, six miles distant, and suffered nervous prostration, causing her to remain in bed several days). (4) Five hundred dollars to two hundred dollars. Beaumont, etc., R. Co. v. Bishop, (Tex. Civ. A.) 160 SW 975 (for being compelled to alight a mile short of his destination). (5) One thousand dollars to one hundred dollars. Gulf, etc.. R. Co. v. Moore, (Tex. Civ. A.) 80 SW 426 [rev on other grounds 98 Tex. 302, 83 SW 362, 4 AnnCas 770] (for failure to carry to destination). (6) Three thousand three hundred thirty-three dollars to two thousand dollars. Yazoo, etc., R. Co. v. Faust, (Miss.) 34 S 356 (where defendant's train failed to stop for plaintiff at a flag station, and she testified that her carriage had been sent back, and she

train is not for breach of his ticket

93. Louisville, etc., R. Co. V. Ritchel, 148 Ky. 701, 147 SW 411, 41 LRANS 958, AnnCas1913E 517; İllinois Cent. R. Co. v. Fleming, 148 Ky. 473, 146 SW 1110; Louisville, etc., R. Co. v. Keller, 104 Ky. 768, 47 SW 1072, 20 KyL 957; New Orleans, etc., R. Co. v. Hurst, 36 Miss. 660, 74 AmD 785; Cook v. Lusk, 186 Mo. A. 288, 172 SW 81; Galveston, etc., R. Co. v. Patterson, (Tex. Civ. A.) 46 SW 848.

[a] Exemplary damages not excessive: (1) Two hundred fifty dollars. Illinois Cent. R. Co. v. Fleming, 148 Ky. 473, 146 SW 1110 (where a conductor drew aside the curtain of a passenger's berth, put his lantern in her face, and in a rough and coarse voice told her that her ticket was not good, and that she would have to pay her fare, and again rudely pulled the curtain aside when the passenger was only partly dressed). (2) Two hundred sixty dollars. Louisville, etc., R. Co. v. Keller, 104 Ky. 768, 47 SW 1072, 20 KyL 957 (for injuries resulting from a passenger's exposure to the rain by reason of the carrier's negligence). (3) Three thousand seven hundred and fifty dollars. Louisville, etc., R. Co. v. Ritchel, 148 Ky. 701, 147 SW 411, 41 LRANS 958, AnnCas1913E 517 (where a young white woman of culture and refinement was wrongfully compelled to ride in a colored coach, and the conductor was insulting in his conduct, as a result of which she suffered a nervous shock). (4) Four thousand five hundred dollars. New Orleans, etc., R. Co. v. Hurst, 36 Miss. 660, 74 AmD 785 (where plaintiff was ried four hundred yards past his station and was then compelled to leave the cars, in spite of his remonstrance and request that the train should be backed to the station).

car

[b] Exemplary damages excessive: One thousand five hundred dollars. Galveston, etc., R. Co. v. Patterson, (Tex. Civ. A.) 46 SW 848 (for an unlawful collection by a railroad company of a fifty-cent fare, but without injuring plaintiff). 94. Cross-references: Against palace or sleeping car companies see infra § 1549. Ejection, form of action for see supra § 1213.

Joinder of causes of action see
Actions §§ 188-274.
Splitting cause of action see Actions
$$ 257-307.

95. See Actions § 151.

[a] Misinformation.-A passenger's ticket not entitling him to ride to his destination on the train which he boarded, such train under the carrier's rules not stopping there, any right of action for being put off at an

contract, but for misinformation given him by the ticket agent. Louisville, etc., R. Co. v. Maxwell, 190 Ala. 47, 66 S 669.

96. Amount or value in controversy see Courts [11 Cyc 7741.

Equity jurisdiction to avoid multiplicity of suits see Equity [16 Cyc 60].

Jurisdictions of particular courts see Courts [11 Cyc 633].

Venue see Venue [40 Cyc 1]. 97. Southern R. Co. v. Cassell, 92 SW 281, 28 KyL 1230.

[a] In Kentucky (1) under Civ. Code Prac. § 72, localizing certain actions, applicable to all corporations, except as expressly excluded by other sections, and providing that actions against corporations on contract may be brought in the county in which the contract was made, where a contract for carriage of a passenger over connecting lines of railroad was made by the initial carrier in a certain county on behalf of the connecting carrier, and thereafter ratified by the latter, which undertook to carry it out, the circuit court of the county had jurisdiction of the connecting road, in an action against both roads for breach of the contract. Southern R. Co. v. Cassell, 92 SW 281, 28 KyL 1230. (2) Civ. Code Prac. 73, localizing certain actions and pertaining to common carriers exclusively, one part relating to actions on contracts to carry property, the other to actions for torts, either for injury to the person of a passenger, or for injury to the person or property of another, does not include actions on contracts to carry passengers. Southern R. Co. v. Cassell, supra.

98. Gulf, etc., R. Co. v. Ward, 58 Tex. Civ. A. 210, 124 SW 130 (under Gen. L. [1901] c 27 § 1).

99. Gulf, etc., R. Co. v. Ward, 58 Tex. Civ. A. 210, 124 SW 130 (under Gen. L. [1901] c 27 § 1).

1. See generally Pleading [31 Cyc 92]. [a] Certainty.-(1) A complaint, alleging that plaintiff's signals to stop near his home were ignored, that the car proceeded to the terminal, that plaintiff stayed on the car to go home on the return trip, that at a car shed between the terminal and plaintiff's destination, the conductor told plaintiff that he would have to sleep in the shed or walk, that when the car began to back into the shed plaintiff got off, whereupon the car was immediately run on toward plaintiff's home, that plaintiff unsuccessfully tried to reboard the car, that both the motorman and conductor taunted him with having to sleep in the shed or walk, that he had to walk home, and that he was and had been sick, etc., was not demurrable as not specifying what act plaintiff relied on, or whether it was a servant of defendant who taunted plaintiff, etc. North Alabama Tract. Co. v. Daniel, 158 Ala. 414, 48 S 50. (2) In an action. against a carrier for failure to stop its train at a flag station and to receive plaintiff as a passenger, there was no error in overruling a special demurrer to the allegation that plaintiff, in accordance with the rules of the company and custom, flagged the train and tried to bring it to a stop,

2

showing plaintiff's right to transportation, and a breach of contract on the part of defendant,3 as well as other particular facts which plaintiff relies on as constituting his cause of action. Thus, in an action for a failure or refusal to transport, plaintiff must allege that he was ready and willing to pay the legal or reasonable fare for such transportation,

to board, on the ground that it failed, to specify in what way the train was flagged, or what custom or rule of the company was violated. Southern R. Co. v. Wallis, 133 Ga. 553, 66 SE 370, 30 LRANS 401, 18 AnnCas 67.

[b] Matter of inducement.-In an action against a carrier for failure to stop its train at a flag station and to receive plaintiff, a physician, as a passenger, there was no error in overruling a special demurrer to an allegation, as irrelevant, that plaintiff was not well, and had gone on the train to the flag station to see his patients, and to keep from driving through the cold and bad weather, for it was but matter of inducement introductory to the narrative of the cause of action. Southern R. Co. v. Wallis, 133 Ga. 553. 66 SE 370, 30 LRANS 401, 18 AnnCas 67. See generally Pleading [31 Cyc 102].

2. Southern R. Co. v. Melton, 158 Ala. 404, 47 S 1008; Brown v. Georgia, etc., R. Co., 119 Ga. 88, 46 SE 71; Indianapolis, etc., R. Co. v. Kennedy, 77 Ind. 507.

[a] Under contract for carriage on freight train-If a railroad company, not being required to carry passengers on its freight trains, agrees to do so on certain terms and conditions, in an action to recover damages for its refusal to carry plaintiff on such a train in accordance with this agreement, a strict compliance with the terms and conditions imposed by the company must be alleged. Indianapolis. etc., R. Co. v. Kennedy, 77 Ind. 507.

3. Southern R. Co. v. Melton, 158 Ala. 404, 47 S 1008; Brown v. Georgia, etc.. R. Co., 119 Ga. 88, 46 SE 71.

4. Ala.-Southern R. Co. v. Farquhar, 192 Ala. 415, 68 S 289; Birmingham R., etc., Co. v. Scisson, 186 Ala. 70, 65 S 332; Page v. Louisville, etc., R. Co., 129 Ala. 232, 29 S 676; Birmingham R., etc., Co. v. McDoniel, 6 Ala. A. 322. 59 S 334.

Ga. Southern R. Co. v. Wallis, 133 Ga. 553, 66 SE 370, 30 LRANS 401, 18 AnnCas 67; Wolfe v. Georgia R., etc., Co., 124 Ga. 693, 53 SE 239; Brown v. Georgia, etc., R. Co., 119 Ga. 88, 46 SE 71.

Ind.-Draper v. Evansville, etc., R. Co., 165 Ind. 117, 74 NE 889, 6 Ann Cas 569.

V.

5

regulations, that he relied on such representations instead of going by another route, and that the agent knew, and plaintiff did not know, that quarantine regulations were in force, state a cause of action. St. Clair v. Kansas City, etc., R. Co., 76 Miss. 473, 24 S 904, 71 AmSR 534. (6) A declaration in assumpsit by one entitled to the benefit of a contract between a railroad company and a county court for the transportation of sick persons to a pesthouse, which properly impleads the railroad company thereon, and for a breach of its duty to him thereunder, is good on demurrer. Jenkins v. Chesapeake, etc., R. Co., 61 W. Va. 597, 57 SE 48, 49 LRANS 1166, 11 AnnCas 967.

[b] Complaints or petitions held insufficient. (1) Birmingham R., etc., Co. v. McLeod, 9 Ala. A. 637, 64 S 193 (in action for punitive damages); Mills v. Baltimore, etc., R. Co., 111 Md. 260, 73 A 885, 134 AmSR 599. (2) A complaint in an action against a carrier alleging that its servants carelessly and negligently ordered, directed, and caused plaintiff to enter one of defendant's passenger trains for which she had a ticket given her by mistake, in the absence of an averment that such servants had any knowledge that plaintiff did not desire to take passage on the train indicated by the ticket she held, is insufficient, as not stating facts constituting a cause of action. Scott v. Cleveland, etc., R. Co., 144 Ind. 125, 43 NE 133, 32 LRA 154. (3) Allegations that on a certain date defendant railroad company leased a certain railroad, and on a later date, being the owner or lessee of two other roads, refused plaintiff a continuous trip over the three for one fare, do not show that the three roads, were united by the same contract, and hence do not state a cause of action, under Railroad Laws §§ 78, 104, authorizing a railroad company to contract with any other company for the use of its railroad, and requiring a corporation so contracting to give transfers, without extra charge, entitling passengers to a continuous trip on the railroads embraced in the contract. Mendoza v. Metropolitan St. R. Co., 48 App. Div. 62, 62 NYS 580, 51 App. Div. 430, 64 NYS 745. (4) Where, in an action for breach of a contract of carriage, plaintiff claimed special damage on the ground that because of his fallure to reach a certain town at the time he would have reached it, had defendant performed its duty, he had failed to consummate a deal by which he would have realized a large pront, failure to name the parties with whom the deal was to be made rendered the petition defective. Townsend v. Texas, etc., R. Co., 40 Tex. Civ. A. 71, 88 SW 302.

Ky. Ward v. Louisville, etc., R. Co., 168 Ky. 826, 183 SW 211. Tex-Mexican Cent. R. Co. Goodman, (Civ. A.) 43 SW 580. And see cases infra this note. [a] Complaints or petitions held sufficient: (1) In an action for being set down at a wrong station. Southern R. Co. v. Melton, 158 Ala. 404, 47 S 1008. (2) In an action against a street railroad company for failing to set plaintiff down at her destination. Birmingham, etc., R. Co. v. Wilson, (Ala. A.) 69 S 312; Birmingham R. etc., Co. v. McDaniel, 6 Ala. A. 322, [c] Refusal to stamp ticket.-A 59 S 334. (3) In an action for not count alleging the purchase by plainreceiving proper accommodations tiff of a round trip ticket from deduring transit. Louisville, etc.. R. fendant, providing that the holder Co. v. Weathers, 163 Ala. 48. 50 S shall be identified before a certain 268. (4) In an action founded on designated agent of the company bethe negligent failure of the conduc- fore presenting the same for return tor to notify the passenger when he passage, and that such ticket shall took up his ticket that he was on the be void unless stamped by such wrong train. Southern R. Co. v. agent, and alleging that plaintiff Farquhar, 192 Ala. 415, 68 S 289. presented herself for identification as (5) Allegations that a contract lim-required, but that said agent refused iting defendant carrier's liability was to stamp the ticket, and that, when never assented to by plaintiff, that the agent of a connecting carrier aided quarantine officers in wrongful treatment of plaintiff, that defendant's agent informed plaintiff that he would not be hindered by quarantine

she presented the same for passage, she was ejected from the train, states a cause of action for the refusal to stamp the ticket. McGhee v. Reynolds, 117 Ala. 413, 23 S 68.

[d] Proximate cause.-Allegations

that plaintiff was negligently caused to alight before her station was reached, leaving her in the dark without protection or assistance to reach the station, to which she was compelled to walk, and that her child in arms and baggage were too heavy for her, resulting in her reaching the station in an exhausted, frightened, and nervous condition and sustaining special physical injury, sufficiently show that her injury was proximately caused by the carrier's wrongful act. Pullman Co. v. Hoyle, 52 Tex. Civ. A. 534, 115 SW 315.

[e] Allegation of damages. Where a declaration alleges that defendant railroad company sold plaintiff a one-thousand-mile ticket, and through its negligence failed to place his right name thereon, and its conductor refused to receive such ticket, and that plaintiff exercised due care, it is error to sustain a demurrer for the reason that no damages are alleged, since the facts alleged are sufficient to entitle plaintiff to nominal damages. Holden v. Rutland R. Co., 72 Vt. 156, 47 A 403, 82 AmSR 926.

[f] Allegations_showing contributory negligence. In an action by a passenger for damages because of taking a wrong train at the station, where the petition shows that the mistake was due to plaintiff's failure to exercise ordinary care, and not to any negligence of defendant, a demurrer to the petition was properly sustained. Johnson v. Seaboard Air Line R. Co., 13 Ga. A. 298, 79 SE 91.

[g] Separation of races.-If it is actionable per se as against a street railroad company for its conductor, in endeavoring to comply with the statute requiring the separation of white and colored passengers, negligently to mistake a white passenger for a colored one, and in the presence of others inform him that he must sit in that portion of the car set apart for negroes, it is essential that the petition alleged plaintiff to be a white man. Wolfe v. Georgia R., etc., Co., 124 Ga. 693, 53 SE 239.

5. Tarbell v. Central Pac. R. Co., 34 Cal. 616; Sage v. Evansville, etc., R. Co., 134 Ind. 100, 33 NE 771; St. Louis Southwestern R. Co. V. Thomas. (Tex. Civ. A.) 27 SW 419.

6. Brown v. Georgia, etc., R. Co., 119 Ga. 88, 46 SE 71; Dierig v. South Covington, etc., R. Co., 72 SW 355, 24 KyL 1825.

[a] Failure to transport.-(1) Where a petition alleges that plaintiff bought tickets for himself and wife for a particular train, soon due at the station, that they stood alongside the track, waiting for that train which passed without stopping, thereby occasioning the breach of the contract of carriage, that there were

no

accommodations, except in the station house, that by reason of the condition of the waiting room plaintiff's wife was rendered ill, and plaintiff was put to expense and deprived of the value of her services, it states a cause of action for consequences arising from the failure to transport. Brown v. Georgia, etc., R. Co., 119 Ga. 88, 46 SE 71. (2) Where a complaint against a street railroad company alleged that, by contract between the carrier and two certain towns, the carrier was bound to transport passengers from a certain city to either of such towns for one five-cent fare, and that, plaintiff having taken passage on a car of defendants, the conductor refused to ac