
    Gulf & S. I. R. R. Co. v. Dixon.
    [70 South. 898.]
    Carriers. Carriage of passengers. Special trains.
    
    While a railroad company had for several years allowed passengers to board its excursion trains to the state fair at a flag station, it may change its rules and refuse to receive passengers on such special trains, except at its agency stations where tickets could be procured, and a plaintiff cannot complain that he was refused passage on such special train at a flag station, though the train had stopped when flagged at such a station.
    
      Suit by M. W. Dixon against the Gnlf & Ship Island
    Appeal from tbe circuit court of Smith county.
    Hon. W. H. Hughes, Judge.
    ■Railroad Company. From a judgment for plaintiff, defendant appealed.
    The facts are fully stated in the opinion of the court.
    
      T. J. Wills, for appellant.
    The question presented to this’ court for determination is whether or not appellant railroad company had a right to run its excursion train from Laurel to Saratoga ■on October 25, 1912, stopping only at agency stations for passengers provided with excursion tickets, to Jackson- .and return, issued for that particular train.
    It is a well settled rule of law that in running of regular trains on regular schedule by a railroad company, that the company has the power and authority under the law, unless otherwise provided by statute, to determine for itself what trains shall stop at designated stations or places, and what trains may be run scheduled to stop only at certain particular stations on its line, in other words, a railroad company may enforce a rule of stopping certain trains at all stations for the receiving and discharging of passengers, and then may run other trains which do not stop at all stations without incurring any liability, whatsoever for the failure to stop at intermediate stations between the stations, which the train is scheduled to stop. Wells v. Ala. & Great So. R. R. Go., 67 Miss. 24; Nobel v. Atchison T. <& S. F. R. R. Co., 46 Pac. 483; Louisville & Nashville R. R. Co. v. Miles, 37 So. 486; Tex & Pao. R. R. Co. v. Bell, 87 S. W. 730.
    Appellant railroad company, as is shown by the record, in this case, had its regular passenger train run on the regular schedule each day, which would stop at this flag •station, of Bunker Hill, and receive and discharge passengers upon receiving the proper signal so to do. Appellee could have procured passage upon the regular train at this flag station as was usual and customary for passengers to do, upon giving the proper signal. The excursion train had no schedule upon which it was run other than that evidenced by the circular sent out advertising the running of said excursion to carry intending visitors to the State Fair at Jackson. This excursion circular listed the agency stations on the said Eailroad line between Laurel and Saratoga, but no reference whatever was made to the non-agency stations and flag stations. Appellee could not rely upon the schedule for the regular train as the basis of his.right to take passage on the excursion train at the flag station of Bunker Hill. He had no ticket entitling him to passage on the excursion train, and appellant owed him no contractual obligation to stop its train and receive him as passenger, and the excursion train not having a regular train schedule to stop at Bunker Hill crossing, the flag station, there was no legal obligation upon appellant to stop its train and receive appellant as a passenger on the said train. Appellant railroad company owing appellee no contractual obligation to stop-its said train and receive him at the flag station, and there being no legal duty imposed upon it to stop its train at said flag station for appellee, it was under no obligation whatsoever, either by contract or law, to have .its said train stop and receive appellee, and therefore its failure-to so stop would not impose upon it aiiy liability whatsoever, and appellee was not entitled to recover.
    
      Nobles & Cantwell and G. G. Lyell, for appellee.
    We call the attention of the court to the case of Wilson v. Railroad Company, 63 Miss. 352, where our court held that where Wilson held an excursion ticket good only on trains scheduled to stop at his station, and he flagged a train not scheduled to stop at his station; that the company was not liable under the ticket contract for not stopping, but that Wilson had rights outside his contract, as a member of the general public and the company was liable for not stopping on his flagging the train in question. The court said:
    “The contract did not preclude appellant from paying the fare or traveling on the train like any .other citizen. It is shown the train in question would and should' have stopped at Barnett if it had been signaled for that purpose.” And the railroad company was held to be liable for ignoring the flag of plaintiff under such circumstances.
    In 2 Hutchinson on Carriers, section 1110, we read: “So where passenger trains are in the habit of stopping at a flag station whenever proper signals are given, a railroad company is bound to stop a passenger' train on. a proper signal.” See authorities supporting the text-See also Williams v. Carolina etc. R. R. Co., 144 N. C-498, 12 A. & E. Annotated Cases, 1000 and note; I. C. RR. Co. v. Sicilians, 53 111. App. 607; Southern Ry. Co.' v.. Wallis, 133 Ga. 553, 12 A. & E. Anno. Cases, 67.
    These cases and a multitude of others hold that: “A. railroad company is bound to stop its trains in response: to proper signals at a flag station at which it is the habit of stopping trains of the kind so signaled.”
    The proof in this case is so overwhelming and undisputed as. to the custom of stopping the State Fair Excursion trains at flag-stops that the appellant is clearly estopped to abrogate such a custom and course of dealing for years without some sort of notice to the public.
    The custom cannot be abrogated in the face of twenty people who have flagged the train. Furthermore the train actually stopped and one passenger had gotten on the train step.
    We respectfully submit that it is clear that the judgment of the court below should be affirmed.
   Potter, J.,

delivered the opinion of the court.

M. W. Dixon, the appellee here, was plaintiff in the trial 'court, and the Gulf & Ship Island Railroad Company,, appellant, was defended. From a judgment for two hundred dollars in favor of Dixon, the railroad company appeals. ,

The facts in this case, stated most favorably to the appellee, are as follows: OJn the 25th day of October, 1912, appellee flagged one of appellant’s trains at a flag stop called Bunker Hill. This train was an excursion or special train, and was carrying passengers at a reduced fare from points on appellant’s railroad to Jackson ánd return. The occasion for the running of this excursion train was the state fair at Jackson. It is shown in the testimony that for several years prior to this time the defendant railroad company had run like excursions through the station in question to the state fair in the fall, and that the plaintiff in this case had boarded these ■■special trains at Bunker Hill and visited the state fair, and that on all previous occasions similar to the one in question the excursion trains stopped in response to signals and had taken on passengers at Bunker Hill. On "this occasion circulars had been distributed similar to the ones sent out during previous years. The excursion train stopped for Mr. Dixon on his signal, but the conductor refused to admit him as a passenger because he had an order from the trainmaster to stop only at agency stations to take on passengers. Bunker Hill is not an agency station and tickets cannot be purchased there. The defendant railroad company ran one regular passenger train each way daily; the train going east in the morning and returning in the afternoon.

We are of opinion'.that the above state of facts do not ■constitute a cause of action. The defendant railroad company clearly had the right to run this special train or excursion on the occasion óf the state fair and take on passengers at agency stations only.

Reversed and dismissed.  