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A treatise on the law of carriers (Volume 4) online

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currence. Held, that the question of
plaintiff's contributory negligence was
properly submitted to the jury. Pullman
Co. V. Haight, 151 Fed. 1009, 81 C. C. A.

Whether a passenger, in an action
against a sleeping car company by him
for the recovery for the loss of his per-
sonal belongings while a passenger, was
guilty of contributory ncgiligcnce, held
undiT the evidence, a question for the
jury. Morrow v. Pullman Palace Car
Co., 73 S. W. 281. OS Mo. ;\pp. 351.

92. Entering dark toilet room. — Valen-
tine 7'. Xortlurn P.ic. I\. Co. (Wash.),
126 Pac. 00.

93. Stumbling over suit case. — I.i\ion
,-'. Webb, 61 .\'. ^■. S. 111.!, '-W .Misc. Ivcp.

94. Reasonableness of regulations. —
I'ulinian Co. v. Krauss, 10 So. 30S, 1(5
Ala. 305, 4 L. R. -A., N. S.. lo::.

95. St. I.ouis, etc., R. Co. v. Hardy, 55
.Ark. i:;i, 17 S. W. 711; Wright v. Califor-
nia Cut. K. Co., 7H C:il. 360, 20 Pac. 7'10.

§§ 3587-3590 carriers. 3240

alleged theft from the car in which they were traveling, the wife testified that
she always wore the ring, and had never had it ofl:' her hand but once to have
it fixed, and plaintifl:' stated that before boarding the train his wife asked him to
keep the ring in a pocketbook until they could get north and have it repaired,
w^hether the ring was carried merely to have it repaired or with the ultimate
intention of its being worn by the wife during the remainder of the trip after
it was repaired, and whether it was reasonably necessary for the wife's pleasure,
comfort, and convenience during the journey, was for the jury.^*^

Reasonableness of Refusal to Accept Substituted Berth. — Where plain-
tiff engaged a lower berth, but it was assigned to another passenger, and he was
offered a lower berth which he refused because it would have to be vacated at
an early hour, and an upper berth which he refused because he, being a som-
nambulist, was afraid to sleep in an upper berth, it was a question for the jury
whether he acted reasonably in refusing to accept either substituted berth. ^"

§§ 3588-3595. Damages — § 3588. Nominal Damages. — A sleeping
car company is liable for at least nominal damages for its porter's wrongful act
in knowingly causing a passenger to alight some distance from her station.^^

§ 3589. Punitive Damages. — A sleeping car company is not liable for
ptmitive damages because its agent refuses to sell a sleeping car berth to a pas-
senger, on the ground that the latter has not a first-class ticket, unless the pas-
senger is treated insultingly or with malice.''^ But where a carrier recklessly
disregards the right of a passenger to a reservation of a sleeping compartment,
the passenger is entitled to punitive damages. ^ The failure of the servants of
a sleeping car company to keep watch while a passenger is asleep in her berth
is a reckless disregard of her safety and where the passenger is assaulted and
robbed, the company is liable for punitive damages.- A willful invasion of a
passenger's rights is not necessary to justify punitive damages.-"^ Where the
servants of a sleeping car company failed to notify plaintiff' of arrival at her
destination, and the time, place, and manner in which plaintiff was put off the
train thereafter were attended with circumstances of aggravation, the court prop-
erly permitted her to recover exemplary damages.'*

§§ 3590-3594. Compensatory Damages— § 3590. In General.—
Breach of Contract in General. — In an action against a sleeping car company
for breach of contract to furnish a berth, the plaintiff, if entitled to recover, is
at least entitled to the amount paid for his ticket, which constitutes substantial
damages.'' For breach of a contract to allow a passenger to use a berth as a
bed during the daytime, he can recover only such damages as naturally and di-
rectly flow from the breach of contract.'' Where the sleeping car in which plain-

96. Whether an article was baggage. — jury to award punitive damages against
Godfrey v. Pulhnan Co.. GO S. E. 666, 87 a sleeping car company for injuries to
S. C. 361. a passenger assaulted and robbed while

97. Reasonableness of refusal to accept asleep in her berth, if the jury believed
substituted berth. — Aplington v. Pullman that there was a conscious disregard by
Co., 07 X. Y. S. 329, 110 App. Div. 2.50, the company's servants to observe due
17 X. V. Ann. Cas. 4.5."i. care, and that a willful invasion of the

98. Nominal damages. — Pullman Co. v. passenger's rights was not essential to
Hoyle, .52 Tex. Civ. App. 534, 115 S. W. justify such damages, properly submitted
315. the issue of punitive damages. Calder

99. Punitive damages— Refusal to sell v. Southern R. Co.. 71 S. E. 841, 89 S. C.
berth. — Lemon 7'. Pullman Palace Car 287.

Co., 52 Fed. 262. 4. Pullman Co. t. Lutz, 154 Ala. 517, 45

1. Speaks v. Southern R. Co.. 73 S. E. So. 675, 14 L. R. A.. X. S., 907.

625, 90 S. C. 358, 38 L. R. .\., X. S., 258. 5. Breach of contract to furnish berth.

2. Failure to keep watch. — Calder v. — Pullman Co. v. Krauss, 145 Ala. 395, 40
Southern R. Co.. 71 S. E. 841, 89 S. C. So. 398, 4 L. R. A., N. S., 103.

287. 6. Pullman Palace Car Co. v. Fowler,

3. Willful invasion of rights unneces- 6 Tex. Civ. App. 755, 27 S. W. 268.
sary. — An instruction authorizing the


till was riding was ordered to be returned when only a short distance from the
place to which passage had been paid, and plaintiff refused to complete the trip
in a day coach, and returned in the sleeping car, he can recover only nominal
damages for the breach of contract, and such additional damages as might have
resulted from completing the trip in the day coach instead of the sleeping car J

Ejection of Passenger. — Plaintiff" having been ejected by the employees of
the railroad company from a car in which, under his contract with the sleeping
car company, he was entitled to remain without payment of further fare, the
sleeping car company was liable, not only for the direct, but also for the conse-
quential, damages, which should have been anticipated as the natural and prob-
able result of its breach of the contract, subject to the limitation that the damages
recoverable could not be enhanced by the negligence or willful conduct of the
plaintiff.^ And where plaintiff' purchased a railroad ticket for transportation
between certain points, over a certain route, and defendant's agent sold
him a ticket on a sleeper, reciting that it was good between such points, but the
sleeper was attached to the train of another railroad company, whose cars pro-
ceeded over a route not named in the railroad ticket, and plaintiff' was required
by the conductor of the sleeper to leave the train, not having any more money
to pay the railroad fare, it was held that the measure of damage would be for
such mental suff'ering or feeling of humiliation as attended the ejection, as a di-
rect result therefrom, and such inconvenience, expense, and loss of time as might
be shown to be the direct, natural, and proximate result of the breach of the con-
tract to carry. ^ Where in an action for an alleged wrongful expulsion from a
sleeping car it appeared that plaintiff" had purchased a ticket for a particular berth
in the car, but had lost it. and that, although he had given satisfactory assurance
that he had purchased the ticket, he was expelled from the car, no abusive lan-
guage or personal violence being used by the conductor in charge, and it was
shown that the passenger might have kept his berth by paying the required fare,
but that he refused to do so, it was held, that he was entitled to recover only the
price he paid for his ticket, and a reasonable compensation for the trouble and in-
convenience suff'ered by being deprived of his berth. i*^

Indecent Assault by Employee. — Where the porter placed in charge of a
sleeping car makes an indecent assault on a female occupant thereof, she is en-
titled to recover from the company a fair pecuniary compensation for all in-
juries, temporary or permanent, directly caused to her in her person, health, and
strength, including compensation for the pain and suffering, mental and physical,
which has been, or may thereafter be, caused. ^^

Loss of Baggage. — A passenger is entitled to recover the value as testified to
by him of baggage lost through the carrier's negligence, though such articles have
no market value.' -

§ 3591. Mental Suffering. — In the absence of malice, willfulness, or in-
humanity on the ])art of a sleeping car com])any breaching its contract to provide
a passenger with sleeping car accommodations, there can be no recovery for
fright, alarm, anxiety, humiliation, or distress of mind unaccompanied by phys-
ical injury, nor for physical injury wholly caused by mental dis(|uietu(le.''' Where,
however, j)laintiff suffered i)hysical inconvenience and discomfort, the conse-
<^iuent physical jiain attending thereon was sufficient to su])port liis cl.iiin for coni-

7. Missouri Pac. H. Co. t-. firotslxck 11. Indecent assault by employee. —
(Tt-x. Civ. A\>]).), ;M S. W. 7():.>. Campln-ll 7'. rulliiian I'alaoc Car Co., 42

8. Ejection of passenger. — I'ullnian'.s l'"i(i. Ihi. 1 1 .Am. ^v I'.n^;. I\. Cas. 301.
Palace Car Co. v. KiiiK. '.i'.) I'cd. '.'"^O, :i9 12. Loss of baggage. — Cooiiey v. Pull-
C. C. ,'\. :,i:i. mar, Palace Car Co.. IJr. So. 712, 121 Ala.

9. Pullman Palace Car Co. ?'. .NfrDon- .Uls, .-,:', 1,. U. \. (,'ii)

aid. 2 Tex. Civ. App. .'122. 21 S. W. 0».'i. 13. MentaJ suffering.— Smitli t. Pull-

10. Pullman Palace Car Co. ?•. Reed. 7.1 man Co., i:;8 Mo. App. 23S, IP.) S. W.
111. 12.', 20 Am. Rep. 232. 1072. See Caldcr 7'. vSouthcrn K. Co.. 71

S. 1''. sn. SO S. C. 2S7.

§§ 3591-3593 carriers. 3242

pensatory damages, including damages for mental suffering and humiliation.^-*
And where a sick passenger was deprived of medicine and stimulants by the theft
of her handbag by the sleeping car porter, and suffered, unrelieved, during the
night, pain and distress incident to her diseased condition, which could have been
prevented and relief aft'orded to her by the use of the medicine and stimulants,
she was entitled to recover damages for her mental distress. ^^ It has been held
that where in an action against a railway company and a sleeping car company,
for compelling plaintiff to leave a sleeper in which she had engaged transporta-
tion before reaching her destination and complete the journey in a chair car,
the evidence showed that the railway company desiring the sleeper for the ac-
commodation of passengers on one of its trains bound in the opposite direction,
the sleeper on which had become disabled, the train conductor and the sleeping
car conductor insisted for three-quarters of an hour or more on plaintiff's leav-
ing the sleeper and entering the chair car, using arguments and threats beyond
the limit of persuasion, attracting the attention of others to plaintiff, who was
thereby greatly mortified, it was not error to authorize the jury to consider the
question of mental suffering on plaintiff's part.i*^ Where a passenger on a sleep-
ing car through the fault of the company is ejected, whereby he was delayed,
he may recover for such mental suffering directly resulting from the ejection,
but he can not show that he suffered mental distress for fear that the delay would
cause his discharge from his employment, and that he would not be able to remit
to his employers as usual, since such damages were not within the contemplation
of the parties when the sleeping car ticket was purchased. ^'^

Indecent Assault by Employee. — Where the injury complained of is an in-
decent assault by an employee of the company, recovery can be had for the
mental suffering.^^

Refusal to Allow Use of Berth as a Bed in Daytime. — Where a person
severely afflicted with rheumatism pays for a berth on a sleeping car between cer-
tain points, mental suffering is not an element of damage for breach of the con-
tract in simply refusing to permit such person to occupy the berth as a bed in
the daytime.^^

§ 3592. Physical Suffering. — Where a sleeping car porter makes an in-
decent assault upon a female passenger, she may recover for physical suffering
directly caused by such assault.^o And where a sick passenger was deprived of
medicine and stimulants by the theft of her handbag by the porter, and suffered,
unrelieved, during the night, pain incident to her diseased condition, which could
have Deen prevented and relief afforded to her by the use of the medicine and
stimulants, she was entitled to recover damages for her physical suff'ering.-i

§ 3593. Remote Damages. — A sleeping car company breaching its con-
tract to provide a female passenger with sleeping car accommodations is not re-
quired to anticipate that a woman in good health will be injured in her health
as a natural and probable consequence of its breach. 22 And where a sleeping
car caught fire through the negligence of a carrier's employees, and a woman
who was "unwell" was thereby compelled to leave the car half-clad, and caught
cold, resulting in suppression of her menses, this was the remote and not the
proximate result of the carrier's negligence, and should not be considered in
reckoning the damages.^s But in an action against a sleeping car company for

14. Pullman Co. v. Willett, 21 O. C. C. v. Fowler, 6 Tex. Civ. App. 755, 27 S. W.
649. 268.

15. Bacon v. Pullman Co., 159 Fed. 1. 20. Physical suffering. — Campbell v.

16. Pullman Palace Car Co. v. Hooker, Pullman Palace Car Co., 42 Fed. 484, 44
41 Tex. Civ. App. 607, 93 S. W. 1009. Am. & Eng. R. Cas. 391.

17. Pullman Palace Car Co. v. McDon- 21. Bacon v. Pullman Co., 159 Fed. 1.
'\' 1^^ ^SauT' ?J 'eiVlc^yle.- ^^- Kemote damages Smith . Pull-
Campbell V. Pullman Palace Car Co., 42 "lan Co., 119 S. W. 10.2, 138 Mo. App.
Fed. 484, 44 Am. & Eng. R. Cas. 391. -38. ^ ^ ^ ,

19. Refusal to allow use of berth as a 23. Pullman Palace Car Co. v. Barker,

bed in daytime.— Pullman Palace Car Co. 4 Colo. 344, 34 Am. Rep. 89.



!§ 3593-3595

failure to discharge its duty to provide a properly warmed and comfortable car
for its passengers, it can not be held, on demurrer, that damages alleged to have
been caused by such failure, and consisting in suffering from the low tempera-
ture, contraction of a violent cold, and resulting in permanent injury to the pas-
senger's eyes, are so remote as not to be recoverable.-'*

§ 3594. Damages in Contemplation of Parties. — Where a carrier sold
a ticket for a drawing rooni on a sleeper, when there was no drawing room in
that car, it appearing that drawing rooms were largely used by invalids, possible
injury to health by reason of a breach of the contract might be presumed to
have been within the contemplation of the parties.-^ Where a sleeping car com-
pany breaks its contract to reserve a berth for plaintiff' and the conductor ex-
cludes him from the car, there is a tort, as well as breach of contract, for which
plaintiff' can recover damages, whether in contemplation of the parties when the
contract was made or not.^^

§ 3595. Excessiveness of Damages. — In the appended note will be found
instances of excessive verdicts,-" and verdicts held not excessive.^^

24. Hughes v. Pullman's Palace Car
Co., 74 Fed. 499.

25. Damages in contemplation of par-
ties. — Ingraham f. Pullman Co., 76 N. E.
237, 190 ""Mass. 33, 2 L. R. A., N. S., 1087.

26. Pullman Palace Car Co. v. Booth
(Tex. Civ. App.), 28 S. W. 719.

27. Verdict held excessive. — Where a
passenger had purchased a ticket for a
particular berth in a sleeping car and had
lost the same, but gave satisfactory as-
surance that he had purchased the same,
was expelled from the sleeping car, there
being no abusive language or personal
violence used by the conductor in charge,
in an honest purpose to execute a rea-
sonable rule of the company, but through
a mistaken judgment, it was held that
a verdict, in a suit by the passenger
against the company, for $3,000 damages
was grossly excessive. Pullman Palace
Car Co. V. Reed, 75 111. 125, 20 Am. Rep.

Plaintiff sued a sleeping car company
for refusing him accommodations in one
of its cars, because of a mistake made
by defendant's agent in selling plaintiff
a ticket and his inability to again pay
for a berth. Plaintiff was comipelled to sit
up all night in a crowded day coach, but
there was neither averment nor proof
that he was treated with rudeness or dis-
courtesy, or subjected to unnecessary hu-
miliation. It was held that a verdict al-
lowing plaintiff $500 was excessive. Pull-
man Co. V. Pennock, 102 S. W. 73, 118
Tcnn. 5r,5.

28. Verdicts not excessive. — Where a
sleeping car company failetl to notify a
passenger of arrival at her destination,
and the time, place, and manner in which
she was sub'-ef|uently ejected from the
train was attended with circumstances of
aggravation sufficient to entitle her to
exemplary fjamages, she also having suf-
fered nienla! anguish from fright because
of her surroundings when ejected, a ver-

dict allowing her $1,000 compensatory
and $500 punitive damages was not ex-
cessive. Pullman Co. v. Lutz, 154 Ala.
517, 45 So. 675, 14 L. R. A., N. S., 907.

In an action against a sleeping car
company for breach of contract in fail-
ing to furnish apartments which plaintiff
had engaged for his wedding trip, evi-
dence that he and his bride were com-
pelled to occupy the porter's apartments
and were subjected to inconvenience and
discomfort is sufficient to sustain a ver-
dict for $125 damages. Pullman Co. v.
Willett, 27 O. C. C. 649.

For breach of contract to reserve a
berth for a passenger who boarded a
sleeping car, suffering from illness, and
in consequence, ov^^ing to the negligence
of the sleeping car company, was com-
pelled to sleep in the waiting room,
where her privacy was frequently in-
truded on by the porter and others, and
she was kept awake, resulting in great
phj'sical pain, mental distress, and hu-
miliation during the entire night, a judg-
ment for $900 is not excessive. Pullman
Palace Car Co. v. Nelson, 54 S. W. 624,
22 Tex. Civ. App. 223.

Where, before reaching her destina-
tion, plaintiff and her baby in arms were
compelled to leave a sleeping car op-
erated by defendant sleeping car com-
pany over defendant railroad's lines, and
in which plaintiff had engaged a berth,
and com])lete the l)alance of the journey,
a distance of about 40 miles, in a chair
car, plaintiff being subjected for some
length of time to the gaze and comment
of passengers and others, attracted to
her by the efforts of defendant's employ-
ees to induce her to leave the sleeping
car, suffering therefrom much humilia-
tion and mortification, and great incon-
venience and discomfort, a judgment for
$400 against both defendants was not ex-
cessive. ruUman Palace Car Co. v.
Hocker, 41 Tex. Civ. App. 607, 93 S. W.



Rights, Duties and Liabilities.

I. Who Are Connecting Carriers, § 3596.
II. Rights, Duties and Liabilities in General, § 3597.
III. Carriers of Goods and Live Stock, §§ 3598-3672.

A. Who Is the Initial Carrier, § 3598.

B. Traffic Arrangements between Carriers, §§ 3599-3600.

a. Validity, § 3599.

b. Construction, § 3600.

C. Transportation beyond Carrier's Line, §§ 3601-3613.

a. Duty to Receive and Transport, § 3601.

b. Contracts for Through Transportation, §§ 3602-3605.

(1) In General, § 3602.

(2) Power to Contract, § 3603.

(3) What Constitutes a Contract for Through Transportation, § 3604.

(4) Effect of Contract and Liability for Breach Thereof, § 3605.

c. Delivery to Succeeding Carrier, §§ 3606-3612.

(1) Duty to Deliver to or Notify Succeeding Carrier, § 3606.

(2) Mode and Sufficiency of Delivery, § 3607.

(3) Time of Delivery. § 3608.

(4) Capacity in Which Carrier Acts in Making Delivery, § 3609.

(5) Right to Determine to What Connecting Line Delivery Shall Be Made,

§ 3610.

(6) Duty of Initial Carrier Where Succeeding Carrier Refuses to Receive

Goods, or Delivery to It Is Impracticable, § 3611.

(7) Waiver of Delivery by Succeeding Carrier, § 3612.

d. Transmission to Succeeding Carrier of Consignor's Instructions, § 3613.

D. Duty to Receive and Transport Cars and Freight Delivered by a Connecting

Carrier, § 3614.

E. Duty of a Forwarding Consignee, § 3615.

F. Capacity in Which Connecting Carrier Acts and How It Is Affected by Initial

Carrier's Contract with Shipper, § 3616.

G. Delivery to Consignee, § 3617.

H. Use by Carrier of Connecting Carrier's Cars, § 3618.
I. Delay in Transportation or Delivery, §§ 3619-3633.

a. Liability in General, § 3619.

b. Liability of Initial Carrier, §§ 3620-3628.

(1) In General, § 3620.

(2) Delay Resulting from Failure to Conform to Shipper's Directions or to

Give Proper Notice to Succeeding Carrier, § 3621.

(3) Delay Caused by Carrier's Failure to Feed and Water Stock, § 3622.

(4) Delay of the Succeeding, or of a Subsequent, Carrier, §§ 3623-3628.

(a) Liability in Absence of Statute, Contract, or Traffic Agreement, § 3623,

(b) Liability Imposed by Statute, § 3624.

(c) Liability under Contract, § 3625.


(5) Delay Resulting from Succeeding Carrier's Inability to Receive or

Forward Goods, § 3626.

(6) Liability Where Connecting Carrier Refuses to Receive Goods, § 3627.
(r) Defenses in Actions for Delay, § 3628.

c. Liability of Intermediate or Last Carrier, §§ 3629-3632.

(1) In General, § 3629.

(2) Delay Caused by Preceding or Subsequent Carrier, § 3630.

(3) Liability of Second Carrier to First Carrier for Delay in Receiving Goods,

§ 3631.

(4) Insufficient Excuses for Delay, § 3632.

d. Effect of Traffic Arrangements between Carriers, § 3633.

J. Loss of or Injury to Cars, Goods, or Live Stock, §§ 3634-3672.

a. Loss of or Injury to Cars, § 3634.

b. Loss of or Injury to Goods or Live Stock, §§ 3635-3672.

(1) In General, § 3635.

(2) Liability of Initial Carrier, §§ 3636-3645.

(a) For Loss or Injury on Its Own Line or before Delivery to Succeeding

Carrier, § 3636.
■(b) Liability of a Forwarder, § 3637.

(c) Liability for Loss Occasioned by Failure to Transmit Consignor's In-

structions to Succeeding Carrier, § 3638.

(d) Effect of Failure to Give Name of Consignor to Connecting Carrier,

§ 3639.

(e) Liability for Loss Caused by Delay in Furnishing Cars, § 3640.

(f) Liability for Loss or Injury by the Succeeding or by a Subsequent Car-
rier, §§ 3641-3645.

aa. In General, § 3641.

bb. Statutory Exemption from Liability, § 3642.

cc. Liability Imposed by Statute, § 3643.

dd. Liability under Contract, § 3644.

ee. Diversion of Freight from Route Stipulated, § 3645.
<3) Liability of Intermediate or Last Carrier, §§ 3646-3659.
(a) In General, § 3646.
(1)) Where Initial Carrier Contracts for Through Transportation, § 3647.

(c) When Liability Commences and Terminates, § 3648.

(d) Liability for Injury Occurring after Delivery by Intermediate Carrier

to Shipper, § 3649.
(c) Lialjility for Loss of or Injuiy to Property Transported in Cars of a
Preceding Carrier, § 3650.

(f) Liability for Failure to Give Live Stock Rest, Water, and Food, § 3651.

(g) Liability of a Carrier Diverting Shipment fr<ini Route Stipulated, § 3652.
(h) Liability for Loss or Injury by a I'receding or Sul)se(|uent Carrier,

§;:} 3653-3657.
aa. In General, § 3053.

bb. Liability Imposed l)y Statute, § 3654.
cc. Liability under Contract, § 3655.
dd. Effect of I-ailure to l",xamine Goods or to Inspect Manner of Loading,

§ 2750.
ee. Effect of Refusal to Diliver G.iods until tlic Whole i'"rci.L;lil Is I'aid,
§ 3057.
(i) Recovery Over by Initial Carrier fmni a Snl)sequent Carrier, § 3658.
(')) I-'acts Not Relieving Carrier from I .i.ibilily. § 365<t.
(4) Effect of Agr«'enu-Mts between Connecting Carriers ami juint i.i.iliility,
§§ 3000-3072.
(r) In General. § 3000.

§ 3596 CARRIERS. 3246

(b) Agreement by Carriers, under a Certain Name, to Carry between Dis-

tant Points. § 3(361.

(c) Carriers under One Management or Holding Themselves Out as a Line

for Through Transportation, § 3662.

(d) Joint Association for Transmission of Through Freight, § 3663.

(e) Establishment of Joint or Through Tariffs of Rates, § 3664.

(f) Arrangement as to Payment and Collection of Freight Charges, § 3665.

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