
    Augusta Robinson, Respondent, v. New York, New Haven and Hartford Railroad Company, Appellant.
    First Department,
    December 31, 1914.
    Railroad—connecting carriers—liability for use of abusive language by conductor to passenger — evidence insufficient to establish contract of transportation.
    In an action to recover for mental suffering and physical injuries alleged to have been caused by the use of abusive language by defendant’s conductor, it appeared that the defendant operated a railroad from New York to Springfield, Mass., which, at that point connects with a road operated by the New York Central, which runs from that city to South Framingham, Mass.; that the same cars run from New York to South Framingham; that the plaintiff’s husband purchased of the defendant at its office in the city of New York a ticket of transportation reading “from New"York to Springfield” and “from Springfield to South Framingham,” but traveled from New York to South Framingham on mileage tickets purchased at the same time; that about a week later the plaintiff boarded a train of the defendant at South Framingham for the purpose of being transported to the city of New York; that before reaching Springfield she tendered the ticket purchased by her husband in New York, which was accepted by the conductor and an identification check given to her which was subsequently collected by him; that at Springfield another conductor took charge of the train and between that point and New York city asked the plaintiff for a ticket and" was told that she had surrendered the same to the conductor previously in charge of the train; that thereupon the conductor, the agent of the defendant, accused the plaintiff of trying to beat her way, and used other abusive language, causing her to become extremely nervous and resulting in the injuries for which damages are asked.
    Held, that the evidence was insufficient to establish any contract between the plaintiff and defendant, which entitled the plaintiff to transportation over the defendant’s road, and that, therefore, the complaint should have been dismissed.
    Dowling and McLaughlin, JJ., dissented, with opinion.
    Appeal by the defendant, New York, New Haven and Hartford Railroad Company, from a judgment of the Supreme Court in favor of the plaintiff, entered in the office of the clerk of the county of New York on the 6 th day of March, 1914, upon the verdict of a jury for $2,500, and also from an order entered in said clerk’s office on the 18th day of March, 1914, denying defendant’s motion for a new trial made upon the minutes.
    
      James W. Carpenter, for the appellant.
    
      A. S. Gilbert, for the respondent.
   Ingraham, P. J.:

The defendant operates a line of railway from New York to Springfield, Mass., which at Springfield connects with a line of railway operated by the New York Central and Hudson River Railroad Company from that city to South Framingham, Mass. There are close connections between these railroads and the same cars run from New York over the New Haven railroad to Springfield and from Springfield over, the New York Central lines to South Framingham. The complaint alleges that.on the 16th of August, 1912, the plaintiff through her husband a,t the. county of New York purchased of this’ defendant at its office in the city of New York a ticket of transportation between New York and South Framingham, Mass.; that plaintiff did not use the ticket for transportation from New York to South Framingham, but traveled from New York to South Framingham on mileage tickets purchased at the same time by. her husband; that on the 22d of August, 1912, the plaintiff boarded a train of this defendant at South Framingham .for the purpose of being transported to the city of New York; that while on the journey between South Framingham and New York city and between South Framingham, and Worcester, Mass., this plaintiff tendered such ticket of transportation to the conductor in charge of the train, and the conductor then in charge of the train did accept such ticket as entitling the plaintiff to transportation from South Framingham, Mass., to New York, and in place of said ticket delivered to the said plaintiff a check or card used by conductors generally for the purpose of identification; that thereafter and between Worcester and Springfield the conductor in charge of the train collected such card of identification; that at Springfield the conductor in charge of the train on which the plaintiff was riding was replaced by another; that, thereafter and while the train was between Springfield, Mass., and New York city on the defendant’s line of railway the conductor then in charge of the train called on the plaintiff for a ticket of transportation; that the plaintiff stated to the conductor that she had already surrendered such ticket to the conductor previously in charge of the train; that thereupon the conductor, the agent of the defendant, stated to the plaintiff in loud tones that she was trying to beat her way and cheat the railroad, that he had had such experiences before and knew how they worked, and threatened to forcibly remove plaintiff from the train, and that the conductor, the agent of the defendant, continued to abuse, annoy, slander' and scandalize the plaintiff and threaten to. forcibly remove plaintiff from, the' train, until the train arrived at the city of New York; that plaintiff was in delicate health and the. actions.of the-defendant’s agent, the. conductor in charge of said , train, were such as to throw this plaintiff into a condition of .extreme nervousness as a result of which she became seriously-' ill and has', .continued to.. be sick, and .ill in mind and body to her damage in the. sum- of $20,000.. '

The defendant .interposed .an- answer which .denied• the substantial allegations of the. complaint' and as a defense . alleged that, the ticket purchased hythe plaintiff was subject to a:contract. stamped thereon, which-provided that-in. selling' the ticket for passage over-its.' lines the;;company acts .only. as. agent and is not responsible.:beyond its own .-line, .land that: if the conductor on the train referred tó in the 4th and 5th paragraphs of the complaint took up the .ticket of the plaintiff herein, this defendant was.not in any way responsible therefor,

On the trial the husband of the plaintiff testified that on the day the witness and the plaintiff left New York for South Framingham he first bought two separate tickets from the defendant at the Grand Central Station; that after making this purchase he bought what was designated as a 500-mile mileage ticket; that with these two tickets in his possession plaintiff and the witness traveled from New York to South Framingham using for transportation the mileage ticket and not using the separate tickets from New York to South Framingham; that a few days afterwards he returned from South Framingham to New York using the mileage ticket for transportation but leaving the plaintiff and his daughter at South Framingham in possession of the two separate tickets from New York to South Framingham.

The plaintiff testified that she stayed in South Framingham a week and started to return to New York on the 22d of August, 1912; that when she boarded this train at South Framingham she had the two tickets that had been purchased by her husband in New York the day they left which he had delivered to the plaintiff at South Framingham before he left fór New York; that these tickets read: “from New'York to Springfield;” and “from Springfield to South Framing-ham;” that soon after they got on the train at South Framingham the conductor in charge of the train asked the plaintiff for her tickets; that plaintiff handed him these two tickets and he accepted them, put them in his pocket, and gave to the plaintiff in exchange therefor two red or blue slips; that after the train reached Worcester, which is still on the New York Central railroad line another conductor came through the car and took up these two slips from the plaintiff and they continued, apparently without question, to Springfield; that at Springfield the car on which the plaintiff was riding was transferred to the defendant’s road and thereafter proceeded on its way to New York on the defendant’s railroad; that after the train left Springfield on its way to New Haven another conductor in charge of that train asked the plaintiff for her ticket, to which plaintiff replied: “We haven’t any. We gave our tickets to the first conductor; ” whereupon the defendant’s conductor said: “ Come on. Come on. I heard that kind of talk before. You can’t give me that kind of talk. I have heard that kind of talk before. * * * I must have tickets or put you off. You must either pay your money here, or I must have your tickets;” that plaintiff having no tickets to give him he went away and came back before the train stopped and said: “ What are you going to do about it; what are you going to do ? ” to which plaintiff replied: “We can’t do anything about it at all. We have given up our tickets, and that is the only thing we have.” The conductor then said: “Then you must pay your fare.” By that time the train had stopped and the conductor went away. After the train started he came a second time and repeated the inquiry as to what the plaintiff was going to do about it, and said: “I ain’t going to have any more of that talk. You must either give your tickets or money or I am going to throw you off.” He then went away but subsequently returned, and as the plaintiff testified, “ He went on then and came back at every stop and everything was the same;” at one time he said: “Come on, you are nothing but a couple of dead beats. Give me your tickets, or pay your fare, or I will throw you off; ” that it went along that way until the last stop; that plaintiff at one time offered to give him her address; that he told plaintiff to “ shut up ” and said to a companion who was with the plaintiff: “ That woman talks too much anyway. She is too nervous. I can’t talk to her; ” that a passenger interfered and the conductor said to him: “You shut up. I am doing this, I am running this train; ” that the conductor made these statements in a very loud tone of voice; that finally at the last station before arriving in New York the conductor asked the plaintiff or her companion for their addresses and then the discussion stopped and the plaintiff was allowed to travel to New York without further molestation. Plaintiff further testified that she became very nervous and had hysterics on the train; that when she got to Baltimore, where she resided, on the Friday following she was prostrated; that the next day she sent for her doctor and" was confined to her bed until the twenty-fifth of October when she had a miscarriage and which was two months after the incident in the train.

The plaintiff’s physician; who resides in'Baltimore, was called and testified that he saw the plaintiff on August 28,1912; that she was then three months pregnant and in a state of extreme agitation; that this condition kept up for about six weeks and on the twenty-fifth of October she had a miscarriage; that the indications were that the child had died five or six weeks before the miscarriage finally occurred. Then in answer to a hypothetical question he said that he believed the miscarriage resulted from the undue terror and excitement on the day of travel.

It was proved by the defendant that the regular form of ticket sold from New York to South Framingham read “from New York to■ Springfield” and “from Springfield to South Framingham;” that from New York to Springfield was upon the line of the New York, New Haven and Hartford railroad; that the ticket from Springfield to South Framingham read: “ The New York, New Haven & Hartford Railroad Co., on account of New York Central & Hudson River R. R. Good for one first-class passage from Springfield to So. Framingham, Mass.; ” that no tickets are sold at the Grand Central Station in New York city reading “ from South Framingham, Massachusetts, to New York.” The conductor on the New York Central railroad from South Framingham to Springfield testified that on the day in question he did not take up any ticket or any two tickets for transportation between South Framing-ham and Springfield which read on their face: ‘‘ from Springfield to South Framingham, Massachusetts,” and “from New York to Springfield;” that it' is not customary, to accept tickets, in any direction on the Boston and Albany, railroad with a con-, tract attached like that on the ticket .in..question;- that no such ticket could be found after the complaint óf the plaintiff had been received by the defendant. • The. conductor on. the train from Springfield, to New York gave his -version .of the' conversation between, the plaintiff, and'her companion and-him-" self and there was.-evidence' .corroborating'.the-.'plaintiff’s account of the transaction.. The defendant moved' to dismiss the; complaint, which motion was denied, and the court submitted the question to the jury. After a statement of the testimony the court first submitted to the jury the question as to whether there was a contract between the plaintiff and the defendant, instructing them that if there was no contract the jury must find for the defendant; that if the jury should find there was such a contract that they must then determine whether that contract was broken; that if there was a contract it obligated the defendant not only to transport the plaintiff but to accord to her respectful and courteous treatment and to protect her from insult on the part of its own employees; and then instructed the jury that if they found that the defendant did not perform that duty, did not accord to the plaintiff respectful and courteous treatment, and did not protect her from insult on the part of its employees, then the jury could find in favor of the plaintiff. On the question of damages the jury were instructed that the amount was entirely within the judgment and control of the jury; that the jury had to be satisfied that the miscarriage was the direct consequence of the incident before they could allow the plaintiff any damages on that account; and then if they found for the plaintiff they were to return a verdict which would adequately compensate for the injury which she has suffered both physical and mental.

Thus the whole basis of this action was the violation of a contract, and to sustain the recovery there must be proof of such a contract and that contract must be one to carry the plaintiff from South Framingham to New York. The plaintiff does not dispute, apparently, that she knew that the defendant’s line ended at Springfield and that the line from Springfield to South Framingham was operated by the New York Central and Hudson River Railroad Company.. Her husband had purchased a ticket from New York to South Framingham and had thereby secured a contract of- the defendant railroad to carry her from New York to Springfield. I do not think that upon this testimony it can be said that the conditions printed upon this ticket form part of the contract of carriage as apparently they were not called to the attention of the purchaser of thé ticket or the plaintiff. There was no evidence that the fare charged was less than the usual fare in consequence of any special contract made by the passenger. So far as the evidence goes the ticket was simply a token to show that the purchaser of the ticket had paid his fare from New York to South Framingham — the defendant to carry the passenger to Springfield and, as agent of the New York Central Company, undertaking that that company would carry the passenger from Springfield to South Framingham. On the face of the ticket the defendant did not undertake to make an individual contract for any transportation except on its own lines. It received the passage money from Springfield to South Framing-ham as agent of the New York Central Company and the contract as between those stations was made by the New York Central Company and not by the defendant. I assume that the ticket agent at South Framingham was also the agent of the defendant to make contracts in regard to transportation from Springfield to New York with passengers commencing their journey at South Framingham, and that it would be a breach of contract by the defendant to repudiate any contract made by the ticket agent or station master at South Framing-ham in regard to such transportation; but I do not see how such a relation could exist between a conductor on the New York Central railroad in charge of a train from South Framingham to Springfield and the defendant. The defendant had conferred no authority on such conductor to make contracts on its behalf or to undertake to allow a passenger to ride from Springfield to New York without a ticket or some evidence that the passenger had paid his fare. If the plaintiff’s story is true, as I look at it, it was the action of the conductor of the New York Central railroad in taking up the plaintiff’s ticket over the defendant’s road that deprived the plaintiff .of evidence of such payment. From the form of the ticket itself it is apparent that if the conductor was to accept such a ticket for passage he must separate the coupon which represented the passage from New York to Springfield and deliver that to the passenger, keeping the main portion of the ticket which represented the passage from Springfield to South Framingham as a voucher for his road. Yet oh the coupon or check representing the passage from New York to Springfield it is expressly provided: This check is not good if detached,” the contract, or whatever it may be called, -being upon the portion of the ticket which gave a right to a passage from Springfield to South Framingham, Mass. I think it is not at all an unreasonable regulation that a passenger on a train should be required to exhibit to the conductor some evidence that the fare has been paid and this evidence is what the defendant’s conductor demanded. It is quite evident that it would be entirely impracticable for a conductor on a train to take the word of every passenger that his fare had been paid without the production of some evidence of that fact. It seems to me that before a passenger can establish the existence of a contract he must produce to the conductor of the train some evidence that such a contract actually existed. The mere fact that the money had been deposited with a ticket agent in New York as payment for a passage from New York to Springfield was not of itself sufficient to establish a contract unless the passenger had produced to the conductor some evidence of such payment. Assuming that the station agent at South Framingham had stated to the plaintiff that this ticket would be received on the defendant’s road for passage from South Framingham to New York, and that certainly is as much as can be assumed from this evidence, the plaintiff never produced the ticket to the agent of the defendant, nor was there any evidence except the mere word of the plaintiff that she had ever had such a ticket. The complaint alleges that the plaintiff purchased the ticket through her agent, her husband, but there was no evidence to sustain that allegation. What the husband did was to purchase the ticket on his own account and afterwards present the ticket to the plaintiff, and she claimed that she had a right to transportation because of the fact that she was in possession of that ticket. But she was not in possession of the ticket when she commenced her trip on the defendant railroad and she never presented that ticket to the defendant as the basis of her claim to transportation. If she had lost the ticket on the train from South Framingham to Springfield and so was unable to produce it after the departure of the train from Springfield for New York, I do not understand that there could be any claim of a contract by the defendant to carry her to New York. According to her story she had delivered the ticket to the conductor of the New York Central railroad and that conductor had accepted the ticket for passage from South Framingham to Springfield. He gave her no check or evidence that her fare to New York had been paid or that there was any contract in existence which would entitle her to transportation to New York. The defendant had certainly made no contract to transport her from Springfield to New York. It had no dealings with the plaintiff whatever, and her only claim to transportation was that her husband had bought a ticket in New York by which. a contract was made which obligated the defendant to carry her from New York to Springfield. I can find in the testimony no evidence of any contract by which the defendant had agreed to carry this plaintiff from Springfield to New York. As before stated, there is no evidence to show that the conductor of the New York Central railroad was an agent of the defendant or that his unauthorized act in taking up this ticket bound the defendant. The only possible right that the plaintiff could have was to claim that on presenting the ticket to the defendant’s conductor at Springfield which showed that the plaintiff had paid her fare entitling her to transportation over the defendant’s road between Springfield and New York, she was entitled, not on the ground of any express contract with her, but by reason of a transfer of the ticket by the person who had purchased it, to such transportation. But she failed to present to the defendant any evidence of any transfer of her husband’s right to transportation, and I cannot see, under such circumstances, that the defendant was bound to recognize the existence of a contract with the plaintiff which would entitle her to transportation to New York.

The case of Jacobs v. Third Ave. R. R. Co. (71 App. Div. 199) was based entirely upon proof of a traffic agreement between the two roads which entitled a passenger paying on one road to continue his passage on the connecting road, and the plaintiff to sustain this judgment insists that “it is clearly apparent that there is a working traffic agreement of some kind between the New 'Haven & Hartford Company and the Boston & Albany Company.” But there is no evidence of any such traffic agreement except that there is a connection between the two roads, and the cars run continuously from South Framingham to New York. The tickets calling for passage are separate. A coupon annexed to the original ticket provides for passage over the defendant’s road and the main ticket itself, which includes the so-called contract, provides for passage over the New York Central road, and there is certainly no evidence which justifies a finding that the conductor on the New York Central road was the agent of the defendant or had any authority to act for it. I think, therefore, the evidence failed to show any contract between the plaintiff and the defendant corporation which entitled the plaintiff to transportation over the defendant’s road, and that for that reason the complaint should have been dismissed.

There are other questions relating to damages presented which, in view of the conclusion at which I have arrived, it is not necessary to discuss.

The judgment and order appealed from should, therefore, be reversed and a new trial ordered, with costs to the appellant to abide the event.

Clarke and Hotchkiss, JJ., concurred; McLaughlin and Dowling, JJ., dissented.

Dowling, J. (dissenting):

The ticket purchased by plaintiff’s husband and subsequently used by the plaintiff on her trip from South Framingham, Mass., to New York, bore, among other printed matter, the statement: Good for one first-class passage from Springfield to So. Framingham, Mass.” The portion of the ticket used over the lines of the New York, New Haven and Hartford Railroad Company simply read “ New York to Springfield.” In my opinion the latter part of the ticket was good in either direction in the absence of any rule, regulation or contractual agreement limiting it to use in one direction. There might be some question as to whether the portion of the ticket to be used over the lines of the Boston and Albany road from Springfield to South Framingham could have been used save in the direction indicated thereon, namely, traveling in an easterly direction, but whatever doubt might exist upon that subject was removed by the statement of the agent of that road at South Framingham that the ticket was good for use in either direction and by the confirmation of that statement in the acceptanee of the ticket by the conductor of the Boston and Albany train for travel westerly. There is not the slightest offer of any reason why a ticket issued between two points should not be good for travel in either direction between those points and particularly where, as here, there is no suggestion that the travel in one direction is longer than in the other or that it is for any reason more burdensome to the carrier. I believe that the contract for transportation was made in the city of New York where the ticket was purchased, and that contract, as found by the jury, and I think upon evidence justifying such a finding, was a contract permitting travel in either direction between the points named upon the ticket. The contract having been made in New York city, the action was maintainable there. (Code Oiv. Proc. § 1780.) This action is not one in tort but for the breach of a contract of transportation made by the carrier, which includes protection from assault and insult during the time that the passenger is in process of transportation, for the contract of carrying is one to safely carry. When the defendant’s conductor insulted the plaintiff for her failure to deliver up to him the ticket which had already been collected from her by the Boston and Albany conductor, he knew nothing of the form of the ticket taken up, and his gross abuse of the plaintiff was caused by his belief that she was trying to ride without paying her fare and not because she was trying to ride in a direction contrary to that which appeared upon part of the ticket. The defense now urged arises solely from the desire to protect the defendant from the consequences of the conductor’s ill-considered action. I believe no error was committed in receiving the evidence of the ticket agent at South Framing-ham as to the validity of the ticket in either direction. He was in charge of the joint office maintained in that place, at which tickets were sold over all the railroads with which the Boston and Albany road was connected, and defendant’s counsel admitted upon the trial that he was defendant’s agent at the place in question for the purpose of selling tickets. It is true that counsel also contended that he was not the agent for the purpose of binding the defendant on terms that it never agreed to, but it seems to me that a railroad company which authorizes an agent to represent it in the sale of tickets also clothes him with an apparent authority to construe and interpret the effect of tickets over the road which he represents and which he is handling in their interest and on their account. That the agent made no mistake in his statement with respect to the validity of this ticket was corroborated by the action of the conductor in accepting it for transportation, and by the inability of the defendant to show any regulation or rule prohibiting its use for travel in a westerly direction. I believe that the plaintiff was entitled to judgment, hut I think the amount of the verdict was excessive, and was undoubtedly increased by reason of the testimony as to plaintiff’s subsequent miscarriage, which I think was too remote to have properly formed a basis for a recovery herein. I, therefore, am in favor of granting a new trial on the ground that these damages are excessive unless plaintiff stipulates to reduce the recovery to $1,000, in which case I favor affirmance, with costs.

McLaughlin, J., concurred.

Judgment and order reversed and new trial ordered, with costs to appellant to abide event. Order to be settled on notice.  