
    [No. 3679.
    Decided March 9, 1901.]
    Samuel H. Sloan, Respondent, v. North American Transportation & Trading Company, Appellant.
    
    CARRIERS-FAILURE TO CARRY PASSENGERS TO DESTINATION —: ACTION FOR DAMAGES-NEW TRIAL-VERDICT CONTRARY TO INSTRUCTIONS.
    In an action against a carrier for damages for failure to transport plaintiff to a destination contracted for, the refusal of the court to grant a new trial on the ground that the verdict in plaintiff’s favor was contrary to the instruction of the court, was not error, where the court charged that it was plaintiff’s duty, in case of the inability of the carrier to transport him, either to finish the journey himself or return to the point of embarkation, if either was reasonably practicable, and that he could not recover for loss of time or sickness if he remained unnecessarily at the point where the carrier left him, since the question of whether it was reasonably practicable for plaintiff to return to the point of embarkation or continue to the point of destination was submitted to the jury and by their verdict they found that it was not practicable for him to do either.
    SAME-INSTRUCTIONS.
    Where a transportation company agreed .to carry plaintiff to Dawson City by way of the Yukon river, and failed to perform its contract, but, after its failure to carry him further than Port Yukon, the captain of the steamer represented that he would take him down the river seventy miles, where there was a cabin suitable for occupancy and a good place to cut wood for the winter; and plaintiff was put ashore at that point on condition that he would cut wood for the defendant, and there contracted a cold and severe sickness, permanently impairing his health, by reason of the fact that the cabin was not in a habitable condition, it was not error for the court in an action by him for damages to refuse to charge that plaintiff’s sickness was not, under the testimony in the ease, such a result of any failure of the defendant to carry him to Dawson as would entitle him to reimbursement, since it was for the jury, and not the court, to say whether, under the testimony, the plaintiff’s sickness was the result of defendant’s failure to carry him to Dawson.
    Appeal from Superior Court, King County. — Hon. E. D. Buns on, Judge.
    Affirmed.-
    
      Bausman, Kelleher & EmoryJ for appellant.
    
      Upton, Arthur & Wheeler, for respondent.
   The opinion of the court was delivered by

Dunbab, J.

Respondent purchased of appellant a ticket entitling him to transportation by boat from Seattle to Dawson City by way of St. Michaels and the Yukon river, and became a passenger, by reason of such ticket, on défendant’s steamship Cleveland, bound for St. Michaels, where he arrived August 18, 1897. Here he was detained until the 81st of August, and was then placed upon appellant’s river boat the John J. Iiealy, upon which he arrived at Eort Yukon on the ldth of September. The appellant company concluding that it could not proceed to Dawson, the respondent was put ashore; the company furnishing him with certain provisions, for which he was to pay the nest year. There is no question but that the appellant failed, if it did not refuse, to provide respondent with transportation from Eort Yukon to Dawson City. The master of the Healy represented to respondent and his father, who was accompanying him, that he would take them to a good place to cut wood, where there was a cabin suitable for occupancy, about seventy miles down the Yukon river. On condition that they would cut wood for the appellant, they were taken to this place and put ashore, and the appellant’s boat left them at that place. According to the testimony of the respondent, the cahin had been partly burned down and was not in a habitable condition. The respondent, who was then a healthy man, was compelled to sleep on the frozen ground for three nights, and contracted a cold and sickness, which continued through the winter and permanently broke down his health, and was the cause of the damages for which he seeks to recover against the appellant.

The appeal involves simply questions of fact. There are two assignments of error, the first of which is that the court erred in not granting a new trial on the ground that the verdict was contrary to the following instruction of the court:

“Upon the defendant company’s failure or refusal to carry Mr. Sloan further than Fort Yukon, if it did so fail or refuse, it became the duty of Sloan, then and there, to return to Seattle, or to finish the journey to Dawson himself, if either was reasonably practicable; and if you should find that it was reasonably practicable for him to do one or both of these things, and that he did neither, but voluntarily remained between these places, then he can recover neither for loss of time nor sickness incurred while remaining there, if he so remained unnecessarily. The plaintiff cannot recover more in this case than such sum as you shall find that it would have necessarily cost him to complete the journey to Dawson by the steamboat Bella from the place where he left the steamer Healy, provided he could by a reasonable effort on his part have so completed the journey.”

The second assignment is that the court erred in refusing to give the following instruction which was asked by the appellant:

“I instruct you, gentlemen, that plaintiff Sloan’s sickness, if any you shall find, is not, under the testimony in this case, such a result of any failure of the defendant company to carry him to Dawson as entitles him to reimbursement. ' Such sickness, then, you are not to consider.”

Tbe question of whether it was reasonably practicable for the respondent to return to Seattle or to finish the journey to Dawson was submitted to the jury, and was decided in favor of the respondent’s contention that it was not practicable for him to do either. The same may be said in relation to the instruction asked for by the appellant. It was for the jury, and not the court, to say whether, under the testimony in the-case,'the respondent’s sickness was the result of the failure of the defendant company to carry him to Dawson. The argument made by counsel for appellant in its brief, and ‘the deductions drawn from the testimony in the case, would have been an appropriate argument to have addressed to the jury, but are not pertinent here. If the respondent was compelled by the company to enter into this wood-chopping business where he did, or if he was induced by misrepresentations of the company to stop at the place where he contracted the cold which caused his sickness, his claim against the company is a good one; and this question was submitted to the jury under proper instructions, and the finding was in favor of the respondent. We have examined the record in this cause, and believe from the testimony that the jury was justified in arriving at the conclusion which it did. The testimony was competent and legally sufficient, and the affirmative ascertainment of these two propositions precludes further inquiry by the appellate tribunal.

The judgment is affirmed.

Reavis, C. J., and Awdees, J., concur.

Duilebton, J., dissents.  