
    Henry Aplington, Appellant, v. The Pullman Company, Respondent.
    First Department,
    December 30, 1905.
    Common carrier — refusal to. furnish sleeping berth as agreed — measure of damages — evidence of damage — conditions printed on ticket, when binding cm/purchaser. ■
    The plaintiff purchased of defendant’s agent in. Texas a ticket for a. double lower berth in a sleeping car from Texas to Jersey City, and the agent so marked the ticket.' At Hew Orleans the plaintiff had to change cars and was refused a lower berth further than Montgomery, Ala. . He went into a day coach, in Which he rode for two nights and a day and a half. In an action for damages for"breach of the contract and for personal injuries,
    
      Held,, that the plaintiff was not charged with notice of rt provision in fine print on the ticket which prohibited an agent from designating the berths as upper or lower, if his attention was not drawn to it;' that whether he. was'negligent
    . in not discovering such provision was a question for the jury;
    That the direction of a verdict limiting damages to the cost of the ticket was ‘ \ ■
    That a recovery could be had both for the breach of the contract to furnish a lower berth and for the injury and inconvenience suffered in being obliged to . ride in the common cars; .
    That it was error to-reject evidence showing the-inconveniences suffered by the plaintiff in being obliged to ride in such common car and that it would have-endangered-his-life to ride in an upper berth owing.to a habit of sleep walking; /
    That, though plaintiff, on being refused a lower berth, Went into the' common car of his "own accord, the question as to whether he was ejected from the Pullman car was-for the jury. '
    O’Brien, P. J., and Ingraham, J.,"dissented. '
    Appeal by the plaintiff, Henry Aplingtpn, from a judgment of the Supreme Court in favor of the defendant, entered in Hie office of the clerk of the county of. Hew York, upon the verdict of a jury rendered by direction of the court, and also from an order entered-in said clerk’s office denying the plaintiff’s motion for a 'new trial made upon the minutes.
    
      H. Aplington appellant, in person.
    
      Allan McCulloh, for the respondent.
   Laughlin, J.:

This is an action to recover damages for the wrongful ejectment of the plaintiff from one of the defendant’s sleeping cars in which he had purchased a berth. On the 14th day of March, 1901, the. plaintiff at San Antonio, Tex., purchased of the agent of the Galveston, Harrisburg and San Antonio Railroad Company a through ticket for a continuous passage to Hew York and at the same time purchased a ticket from the defendant company for a double lower berth in a sleeping car from San Antonio, Tex., to Jersey City. The Pullman Company’s ticket was in two parts, one for the lower berth to Hew Orleans and the other for the remainder of the journey. The agent who sold the Pullman ticket to the plaintiff designated in writing thereon that he was to have a lower berth from Hew Orleans but did not designate the number of the berth. There was printed on the ticket in fine type over the printed signature of the general ticket agent tinder the heading “ Important ” the following: Agent selling this ticket will punch accommodation sold and paid for whether One or Two Berths, but will not write in the Sectio'n number, nor say whether Lower or Hpper in this, the Second Coupon,— Agent must not sell Drawing, State or Private Room until he has fibst obtained permission of office holding same.”

The attention of the plaintiff was not drawn to this matter and he did not read it.. Evidently the agent of the company considered ■it the custom or deemed it proper that he should designate upon the ticket that the plaintiff was to have a lower berth. However, even if the ticket constituted the contract in part it could only become binding on the plaintiff in the event of his knowing or discovering its provisions or his attention being drawn thereto, and whether he was negligent in mot discovering the same would, at most, be a question for the jury. (Grossman v. Dodd, 63 Hun ; 324 ; affd., 137 N. Y. 599 ; Eddy v. Syracuse Rapid Transit R. Co., 50 App. Div. 109.) Moreover, the parol agreement Under which the ticket was purchased either alone or in connection with the ticket constituted. the contract. (Cases supra ; Erie Railroad Co. v. Winter, 143 U. S. 60 ; Mann Boudoir Car Co. v. Dupre, 54 Fed. Rep. 646 ; Zimmer v. N. Y. C. & H. R. R. R. Co. 137 N. Y. 460.) The plaintiff testifies that he stated to defendant’s agent that he desired a lower berth through tó Jersey City and asked if he could have it and was informed that he could and received and accepted the ticket on the understanding that it was for a lower berth through. He had, therefore, obtained the right from the railroad company to. through transportation and from the Pullman Company to the use of a double lower berth in one of its cars throughput the journey authorized by the railroad ticket. He started on the journey on the evening of .the fourteenth of March. That part ■ of the ticket calling for a lower berth from San Antonio to New Orleans was taken up by the conductor and plaintiff was assigned to and occupied a lower berth until he reached New Orleans the- ' following evening. At the outskirts of the city, evidently at a junction, the plaintiff with other passengers was directed to vacate the sleeping car and take another train there for New York. The. plaintiff did as he was -directed and entered the sleeping car of the defendant attached to the New York train and bound for Jersey ' City at - about seveh-fprty-five p. m. He presented_to the Ptillman car conductor the unused portion of the Pullman ticket and asked for a lower berth for which it called., The conductor informed him that upper 8 had been assigned to him ; that there was only one unoccupied, lower berth which was reserved from Montgomery, - Ala., where the train .would arrive about six-ten the... following morning and that in the meantime he might occupy the berth but would be obliged to vacate the same at that hour. The plaintiff demanded a lower berth through to Jersey City in accordance with his ticket. . In the meantime the conductor sold the lower berth to Montgomery. All of the lower berths having been sold and the conductor having refused to give him a lower' berth, the plaintiff left the car and entered an ordinary day coach on the same train on which he rode all night.- He offered to prove that he was obliged to change cars at Montgomery at six-ten the following morning, at Atlanta at noon and at Washington at seven o’clock the following morning and that he was obliged to ride in a day coach all the way for two nights and a day and a half; that he was afraid to take an upper berth owing to the fact that from infancy he had been aecustoméd to walk in his sleep and believed that it would endanger his life to occupy an upper berth ; that there were no conveniences for washing or sleeping in the cars in which he was obliged to ride, and that he sustained inconveniences and annoyances and pain and suffering incident to traveling in that manner and owing to the associates that he encountered in the day coaches. Counsel for the defendant objected to this evidence and it was excluded and plaintiff duly excepted. The trial court ruled that defendant violated its contract with the plaintiff but that his damages were limited to the cost of the sleeping car ticket from Hew Orleans to Jersey City, which was eight dollars, and directed a verdict for that amount. The plaintiff asked to go to the jury on all the questions in the case and particu- s larly on the question of his ejectment'from the car and as to damages and excepted to the refusal of the court to grant his request and to the vérdict as directed. We are of opinion that the learned court was right in ruling that the defendant was guilty of a breach of its contract; but we think that the evidence offered on the question of damages should have been received and submitted to the jury. Where one purchases a ticket for a continuous long journey and, perhaps, pays an additional fare to travel by special train and has business or social engagements, or. is in a condition of health that requires him to make the journey at -that particular time and by that particular train and engages a berth, section or stateroom in a sleeping car for his health, comfort or convenience, he should not, when the sleeping car company refuses him the conveniences and facilities which he purchased, be confined to a recovery of the cost of the sleeping car ticket.' That would not be adequate compensation. Public policy also requires that a liberal rule of damages should be accorded the plaintiff in such a case. If the damages are in such case to be limited to the cost ■ of the ticket, not only will the traveling public be seriously inconvenienced and annoyed, but it would lead to the resale of tickets for gratuities tendered by subsequent applicants and result in the utmost confusion. The sleeping car company had notice of every element of damages that a traveler is liable to encounter in such circumstances. For the indignity inflicted upon the passenger in the presence of other passengers by being refused the berth which he had purchased and by being obliged to leave the sleeping car and for the inconvenience and annoyance which he suffered by being obliged to travel in a day coach without sleeping or washing facilities and being obliged to change cars at early and late hours, he should be compensated. Although the decisions on this point are not fully in accord, the trend of judicial authority is that these are element's of damage for which a recovery may be liad. (Buck v. Webb, 58 Hun, 185 ; Baun v. Webb, 32 Misc. Rep. 243 ; Nevin v. Pullman Palace-Car Co., 106 Ill. 222 ; Hughes v. Pullman's Palace-Car Co., 74 Fed. Rep. 499 ; Pullman's Palace-Car Co. v. King, 99 id. 380 ; cited approvingly in Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 361 ; Mann Boudoir Car Co. v. Dupre, supra ; Pullman Palace-Car Co. v. Booth, [Tex. Civ. App.] 28 S. W. Rep. 719. See, also, Gillespie v. Brooklyn Heights R. R. Co., 178 N. Y. 347.)

" The action, strictly speaking, is not ex contractu. It would not be assignable and the Statute of Limitations relating to torts, as . distinguished from contracts, would be applicable. (Webber v. Herkimer, etc., R. R. Co., 109 N. Y. 311.) The action is, however, ex'contractu in the sense that the wrongful act in refusing the • plaintiff the berth and excluding him from the sleeping car, which is the gravamen of the case, is dependent, upon the. contract. A recovery may be had both for the breach of contract — the value of the ticket — and for the tort. It is not essential, however, to analyze the nature of the action. The -.facts are pleaded. The plaintiff has not. alleged merely a breach of ■ contract, hut he has alleged his wrongful ejectment. This, distinguishes the casé from Miller v. Baltimore & Ohio R. R. Co. (89 App. Div. 457), which was an action on contract- where there was no' ejectment. The learned counsel for the respondent Contends that there was no ejectment here and that the plaintiff voluntarily left the car. We - are of opinion that this cannot be said as matter of law. The jury could -well have found that there was nothing left for the plaintiff to do but to leave the car and that it constituted none the less an ejectment that he did so on being repeatedly informed that he could i ho't have the berth which he had purchased or any lower berth without’ waiting to be further humiliated by being commanded to leave _ or for the application of force. (Townsend v. N. Y. C. & H. R. R. R. Co., 56 N. Y. 301 ; Buck v. Webb, supra.) The plaintiff was on the, tram, and, for aught that appears, it had started at the ' time of his interview with the conductor,. The plaintiff was technically right at least in insisting On a lower berth, for the contract was ■for a lower berth, and he was entitled to what he.engaged, even though another might answer. (Pullman Palace Car Co. v. Taylor, 65 Ind. 153.)i If the jury believed that he was accustomed to walk in his sleep, they would readily find that he was justified in refusing to take an upper berth. Whether his conduct was reasonable in refusing to accept the lower berth for the first night, which he would have been obliged to vacate early in the morning, or'in refusing to accept an upper berth, was a question of fact for the jury, and any unreasonable conduct on his part would go in mitigation of damages. (Pullman's Palace-Car Co. v. King, 99 Fed. Rep. 380.) The evidence excluded, however, should have been received, and for this error a new trial must be awarded.

It follows, therefore, that the judgment should be reversed and a new trial granted, with costs to appellant to abide the event.

Patterson and Clarke,' JJ.,1 concurred; O’Brien, P. J., and Ingraham, J., dissented.

Judgment reversed, new trial granted, costs to appellant to abide event.  