CLARK, C. J., concurring; BROWN, J., concurring in part, and dissenting as to not setting aside the verdict in this case as excessive; WALKER, J., concurring in the opinion of BROWN, J.
The facts in evidence are set out in the case on appeal as follows: "There was evidence tending to show that plaintiff was a commercial traveler, and desired to take passage from Wilson to Goldsboro, North Carolina, over the defendant's road, and he had in his possession a mileage book, good over the defendant's road, with sufficient mileage therein unused to carry him from Wilson to Goldsboro. There was evidence which tended to prove that plaintiff went into defendant's ticket office in Wilson; that there was a great crowd purchasing tickets; that plaintiff got in line in the proper place and waited his turn until he at last reached the ticket window and presented his mileage and demanded a ticket, which the agent refused to give him, telling him to wait until he got through with the others; that plaintiff (569) stood in his position and saw the agent wait on several others, and again handed in his mileage book and demanded a ticket, and was again refused; that he did this two or three times; that he stayed in his position at the ticket window until about time for the arrival of his train, when he had to leave for the purpose of getting his baggage checked; that the baggage agent checked his baggage on his mileage, and after getting the same checked he barely had time to catch his train, and did not have time to return to the ticket office again to seek to get his ticket; that the plaintiff entered the train, and, when the conductor called for his ticket, made a statement of the foregoing facts to the conductor, and the defendant's conductor, without any rudeness
and without any unnecessary force, when the train stopped at Black Creek, put the plaintiff off and refused to him the privilege of getting back on the train, although he then offered to pay his fare. There was evidence also tending to show that the crowd in the station on the day in question was unusually large; that a religious convention had been in session in Wilson for several days, and had adjourned on this occasion, and that the defendant's agents knew in advance when it would adjourn, and that there would be a large crowd. There was evidence tending to show that the agent of the company knew that he could hold the train on which plaintiff wanted to go as long as thirty minutes for the purpose of furnishing all passengers with tickets, but there was no evidence that the plaintiff knew this, or that the agent communicated the fact to him. Plaintiff had purchased from the proper person and was the owner of a mileage book, good for his passage over the defendant's road, and had enough mileage in it to more than cover the distance to Goldsboro. Defendant relied upon the conditions printed on the back of said mileage book, as follows:
"Item 6. Coupons from this book will not be honored on train or steamer, nor in checking baggage (except from non-agency stations and agency stations not open for sale of tickets), but must be presented at ticket office and there exchanged for continuous passage tickets, which continuous passage tickets will be honored in checking baggage, and for passage, when presented in connection with this mileage book. (570) This book is subject to the exceptions, rules and regulations of each line over which it reads, with which exceptions, rules and regulations purchaser herein must acquaint himself."
"Item 7. No agent or employee of any line has power to alter, modify or waive any conditions of this contract or any stipulation printed hereon."
"Item 14. The cover of this book shall be surrendered to conductor or train auditor who detaches last mileage strip or who lifts final coupon issued by agent in exchange for last mileage strip. In consideration of the reduced rate at which this book was sold I, the original purchaser, hereby accept and agree to be governed by all of the conditions printed on this book and on tickets issued in exchange for coupons from this book, and acknowledge that the description furnished herein correctly indicates my personal appearance according to the terms used."
This contract was signed by the plaintiff and the agent of the defendant. The mileage book in question was sold to the plaintiff for $20, or at the rate of two cents a mile. The price for an ordinary ticket over the defendant's road was and is two and one-half cents per mile. There was evidence tending to show that the plaintiff had money with
him sufficient to enable him to pay his fare to Goldsboro, and that the conductor asked him to do so. The jury rendered the following verdict:
The jury answered the issues as follows:
1. Did the defendant wrongfully eject the plaintiff from its train? Answer: Yes.
2. If so, what damage, if any, has the plaintiff sustained thereby? Answer: $5,000.
The defendant moves to set aside the verdict as being excessive. The judge, in the exercise of his discretion, refused to set aside the verdict. With the consent of the plaintiff, the judge reduced the verdict to $2,500 and rendered judgment accordingly, from which ruling and judgment the defendant appealed to the Supreme Court. The defendant allowed thirty days in which to make out a case on appeal, and the plaintiff allowed thirty days thereafter to file countercase. Appeal bond fixed at $25.
After stating the case: It was earnestly insisted before us that no recovery should have been allowed in this case, and this chiefly for the reason that on the facts in evidence the mileage book was not a contract of carriage, but only a binding agreement to supply a ticket, and the plaintiff having failed to procure the ticket and refused to pay fare, the conductor had a right to expel him from the train, but we do not think such a position can be maintained. The book purports throughout to be a contract of carriage. It is labeled a mileage ticket and begins with a stipulation that this "ticket" will be "honored," etc., and on the time limit that "This ticket expires," and so on, and containing an express provision that "undetached coupons will be honored on trains for transportation of passenger and baggage from a non-agency station or from an agency station that is not open for the sale of tickets," etc. A perusal of this mileage book and its various provisions leads necessarily to the conclusion that it is a contract of carriage with the purchaser and holder, subject to certain restrictive stipulations for a wrongful breach of which defendant company may under given conditions expel such holder from its trains, but while the contract requires that at agency stations the holder shall ordinarily present his mileage book at the office and procure an "exchange mileage ticket," it clearly contemplates that the company on its part shall afford reasonable and proper facilities for such exchange. This is not only apparent from the general purport of the contract, but it is included,
we think, within express provision that "Coupons undetached will be received for passage from non-agency stations and agency stations not open for sale of tickets." And from this it follows that where by the wrong and fault of the company, a lawful holder of a mileage book is prevented from making the exchange required, such holder is relieved of the conditions and his book becomes a complete contract of carriage, unaffected by the restrictions referred to. There are several well considered cases holding these mileage books to be contracts of (572) carriage, notably: R. R. v. Lenhart, 120 Fed., 61; R. R. v. Sheet, 26 Ind. App. 224.
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CLARK, C. J., concurring; BROWN, J., concurring in part, and dissenting as to not setting aside the verdict in this case as excessive; WALKER, J., concurring in the opinion of BROWN, J.
The facts in evidence are set out in the case on appeal as follows: "There was evidence tending to show that plaintiff was a commercial traveler, and desired to take passage from Wilson to Goldsboro, North Carolina, over the defendant's road, and he had in his possession a mileage book, good over the defendant's road, with sufficient mileage therein unused to carry him from Wilson to Goldsboro. There was evidence which tended to prove that plaintiff went into defendant's ticket office in Wilson; that there was a great crowd purchasing tickets; that plaintiff got in line in the proper place and waited his turn until he at last reached the ticket window and presented his mileage and demanded a ticket, which the agent refused to give him, telling him to wait until he got through with the others; that plaintiff (569) stood in his position and saw the agent wait on several others, and again handed in his mileage book and demanded a ticket, and was again refused; that he did this two or three times; that he stayed in his position at the ticket window until about time for the arrival of his train, when he had to leave for the purpose of getting his baggage checked; that the baggage agent checked his baggage on his mileage, and after getting the same checked he barely had time to catch his train, and did not have time to return to the ticket office again to seek to get his ticket; that the plaintiff entered the train, and, when the conductor called for his ticket, made a statement of the foregoing facts to the conductor, and the defendant's conductor, without any rudeness
and without any unnecessary force, when the train stopped at Black Creek, put the plaintiff off and refused to him the privilege of getting back on the train, although he then offered to pay his fare. There was evidence also tending to show that the crowd in the station on the day in question was unusually large; that a religious convention had been in session in Wilson for several days, and had adjourned on this occasion, and that the defendant's agents knew in advance when it would adjourn, and that there would be a large crowd. There was evidence tending to show that the agent of the company knew that he could hold the train on which plaintiff wanted to go as long as thirty minutes for the purpose of furnishing all passengers with tickets, but there was no evidence that the plaintiff knew this, or that the agent communicated the fact to him. Plaintiff had purchased from the proper person and was the owner of a mileage book, good for his passage over the defendant's road, and had enough mileage in it to more than cover the distance to Goldsboro. Defendant relied upon the conditions printed on the back of said mileage book, as follows:
"Item 6. Coupons from this book will not be honored on train or steamer, nor in checking baggage (except from non-agency stations and agency stations not open for sale of tickets), but must be presented at ticket office and there exchanged for continuous passage tickets, which continuous passage tickets will be honored in checking baggage, and for passage, when presented in connection with this mileage book. (570) This book is subject to the exceptions, rules and regulations of each line over which it reads, with which exceptions, rules and regulations purchaser herein must acquaint himself."
"Item 7. No agent or employee of any line has power to alter, modify or waive any conditions of this contract or any stipulation printed hereon."
"Item 14. The cover of this book shall be surrendered to conductor or train auditor who detaches last mileage strip or who lifts final coupon issued by agent in exchange for last mileage strip. In consideration of the reduced rate at which this book was sold I, the original purchaser, hereby accept and agree to be governed by all of the conditions printed on this book and on tickets issued in exchange for coupons from this book, and acknowledge that the description furnished herein correctly indicates my personal appearance according to the terms used."
This contract was signed by the plaintiff and the agent of the defendant. The mileage book in question was sold to the plaintiff for $20, or at the rate of two cents a mile. The price for an ordinary ticket over the defendant's road was and is two and one-half cents per mile. There was evidence tending to show that the plaintiff had money with
him sufficient to enable him to pay his fare to Goldsboro, and that the conductor asked him to do so. The jury rendered the following verdict:
The jury answered the issues as follows:
1. Did the defendant wrongfully eject the plaintiff from its train? Answer: Yes.
2. If so, what damage, if any, has the plaintiff sustained thereby? Answer: $5,000.
The defendant moves to set aside the verdict as being excessive. The judge, in the exercise of his discretion, refused to set aside the verdict. With the consent of the plaintiff, the judge reduced the verdict to $2,500 and rendered judgment accordingly, from which ruling and judgment the defendant appealed to the Supreme Court. The defendant allowed thirty days in which to make out a case on appeal, and the plaintiff allowed thirty days thereafter to file countercase. Appeal bond fixed at $25.
After stating the case: It was earnestly insisted before us that no recovery should have been allowed in this case, and this chiefly for the reason that on the facts in evidence the mileage book was not a contract of carriage, but only a binding agreement to supply a ticket, and the plaintiff having failed to procure the ticket and refused to pay fare, the conductor had a right to expel him from the train, but we do not think such a position can be maintained. The book purports throughout to be a contract of carriage. It is labeled a mileage ticket and begins with a stipulation that this "ticket" will be "honored," etc., and on the time limit that "This ticket expires," and so on, and containing an express provision that "undetached coupons will be honored on trains for transportation of passenger and baggage from a non-agency station or from an agency station that is not open for the sale of tickets," etc. A perusal of this mileage book and its various provisions leads necessarily to the conclusion that it is a contract of carriage with the purchaser and holder, subject to certain restrictive stipulations for a wrongful breach of which defendant company may under given conditions expel such holder from its trains, but while the contract requires that at agency stations the holder shall ordinarily present his mileage book at the office and procure an "exchange mileage ticket," it clearly contemplates that the company on its part shall afford reasonable and proper facilities for such exchange. This is not only apparent from the general purport of the contract, but it is included,
we think, within express provision that "Coupons undetached will be received for passage from non-agency stations and agency stations not open for sale of tickets." And from this it follows that where by the wrong and fault of the company, a lawful holder of a mileage book is prevented from making the exchange required, such holder is relieved of the conditions and his book becomes a complete contract of carriage, unaffected by the restrictions referred to. There are several well considered cases holding these mileage books to be contracts of (572) carriage, notably: R. R. v. Lenhart, 120 Fed., 61; R. R. v. Sheet, 26 Ind. App. 224. And these and other authorities on contracts of similar import are to the effect that when a carrier has wrongfully failed to afford reasonable and proper facilities for complying with these and similar restrictive stipulations the holder is thereby relieved from this feature of the obligation and his expulsion from the train on the part of the defendant's agents may become an actionable wrong. Cherry v. R. R.,191 Mo., 489; R. R. v. Payne, 99 Tex. 46; R. R. v. Sheet, supra. In the last case it was held that: "Where plaintiff presented an interchangeable mileage ticket to defendant railroad company's ticket agent, purchased of a passenger association of which defendant was a member, and demanded an exchange ticket, and was informed by the agent that the supply of tickets was exhausted, he was not required to pay the regular fare and then sue the company for failure to carry him on his mileage book, but had the right to be carried on his mileage, and, if ejected, bring suit for damages." In R.R. v. Payne the passenger had a return ticket requiring that it be presented and endorsed by the agent at the destination of a shipment which he was accompanying. The agent in question having refused to endorse the ticket, the passenger on the return trip, having presented the ticket and refused to pay his fare, was ejected from the train at an intermediate station. It was held the passenger was entitled to recover damages "not only for the value of the transportation and the expenses occasioned by such ejection, but also for the humiliation, etc., caused thereby."
The principle upon which these cases are made to rest has been upheld in a well considered decision of our Court. Ammons v. R. R., 138 N.C. 555, and in which it was held as follows:
"1. A regulation of a carrier is reasonable which requires passengers to procure tickets before entering the car, and where this requirement is duly made known and reasonable opportunities are afforded for complying with it, it may be enforced either by expulsion from the (573) train or by requiring the payment of a higher rate than the ticket fare.
"2. If, without having afforded a reasonable opportunity to the
passenger to provide himself with a ticket, the carrier should eject him upon his refusal to pay the additional charge for carriage without a ticket, when he is ready and offers to pay his fare at the ticket rate, his expulsion will be illegal, and he may recover damage for the trespass, and his right of recovery can not be made to depend upon the conductor's knowledge or ignorance of the fact that the agent had no tickets for sale."
Walker, J., delivering the opinion, quotes with approval from Fetter on Carriers, sec. 269, as follows: "By the overwhelming weight of authority, the furnishing of proper facilities to enable a passenger to purchase a ticket is a prerequisite to the right to demand a train fare at a higher rate than the ticket fare; and, if such facilities are not furnished, a passenger who without fault on his part boards a train without such a ticket will, on tender of the ticket fare, be entitled to all the rights and privileges that a ticket would afford him. If he is rightfully on the train without a ticket, it is his right to complete his journey by paying the ticket rate for his fare. So, it has been held that the fact that the company agrees to refund the excess of train fare on presentation of the conductor's receipt or check at a regular station, does not authorize the higher train charge, if no reasonable opportunity is given the passenger to purchase a ticket in the first instance. It can not be justly said that it is reasonable to require the passenger to pay more than a regular rate on the train, even though a process is created by which he may at some future time get back the excess, unless the passenger has first had an opportunity to purchase a ticket at the station from which he starts." And the same general principle was recognized and applied to a different state of facts in the recent case of Mace v. R. R., 151 N.C. 404.
We were urged on the argument to direct that the verdict be set aside and a new trial granted by reason of an excessive award of damages on the part of the jury, but such a ruling may not be made here; certainly not in the form as suggested. Under our Constitution, Art. IV, sec. 8, this Court is given "jurisdiction to review upon appeal any decision of the court below upon any matter of law or legalinference," and so far as relevant to the question presented this (574) is the extent of it, and we have no power to act directly on the verdict of juries. Ever since the amendment to the Constitution conferring jurisdiction over issues of fact and questions of fact to the same extent as exercised prior to the Constitution of 1868," the construction of the amendment, in several well considered cases, has been that it does not embrace or apply to common law actions such as this, but only to suits which were exclusively cognizable in a court of equity, and to them only when the entire proof is written or documentary, and
in all respects the same as it was when the court below passed upon it.Runnion v. Ramsey, 93 N.C. 411; Worthy v. Shields, 90 N.C. 192;Greensboro v. Scott, 84 N.C. 184; Foushee v. Pattershall, 67 N.C. 453. Under our system of procedure, the power we are now invited to exercise is primarily vested in our Superior Court judges, who preside at the trial of causes. Being in a position to note the appearance and conduct of parties, the demeanor of witnesses and the existence of conditions bearing upon the trial, they are much better qualified to supervise the conduct of juries and deal with their verdicts than an appellate court can possibly be. Undoubtedly, when it is clear that a jury, in disregard of the testimony, has rendered a verdict under the influence of passion or prejudice, a presiding judge should be prompt to set the same aside, but the matter is necessarily left largely to his discretion and to such an extent that in many of our cases expressions will be found to the effect that this discretion is final, and so it is in so far as the direct supervision of verdicts is concerned. Boney v. R.R., 145 N.C. 248; Slocum v. Construction Co., 142 N.C. 349;Brown v. Power Co., 140 N.C. 349; Norton v. R. R., 122 N.C. 937. Our Supreme Court can only influence verdicts indirectly by considering, in the exercise of its appellate power, the action of the presiding judge in reference to them. If verdicts are so clearly contrary to the evidence as to make it perfectly clear, as stated, that a jury must have acted in total disregard of the testimony and to such an extent that the presiding judge had manifestly committed a gross abuse of his discretion in failing to set it aside, this would amount to the denial of a (575) legal right and bring the case within the appellate jurisdiction of this Court. The correct position is well stated by Brown, J., in a recent case of Freeman v. Bell, 150 N.C. 149, as follows: "It may be, as contended, that the damages awarded are excessive, but we can not review the judge of the Superior Court, upon a matter within his sound discretion, unless it appears that there has been a gross abuse of such discretion." And the same position is recognized in another case at the same term of Billings v. Observer, 150 N.C. 543. Applying the principle, as stated, we can not hold that the action of the lower court in dealing with this verdict is such an abuse of discretion as to raise a question of law or legal inference, and the position must be resolved against the defendant. Brown v. Power Co., 140 N.C. 349.
It was further contended that there was error in allowing substantial damages for the wrong done defendant for the reason that plaintiff might have prevented or avoided his chief grievance by paying the small amount of money demanded for his fare, but no such position can be allowed to prevail in this jurisdiction. The Court held, in
several recent cases, that when one has been injured by the wrongful conduct of another he must do what can be reasonably done to avoid or lessen the effects of the wrong. This was held in the case of torts inBowen v. King, 146 N.C. 391; R. R. v. Hardware Co., 143 N.C. 54, and recognized in a case of contract in Tillinghast v. Cotton Mills,143 N.C. 268, but the principle which obtained in those cases does not arise or apply until after a tort has been committed or contract has been broken. A person is not required to anticipate that another will persist in misdoing till an actionable wrong has been committed, nor to shape his course beforehand so as to avoid its result. On the contrary, he may assume to the last that the wrongdoer will turn from his way or in any event he may stand upon his legal rights and hold the other for the legal damages which may ensue. Cherry v. R. R.,191 Mo., 489; Pennsylvania Co. v. Lenhart, 120 Fed., 63. In this last case, speaking to this question, the Court said: "Lenhart paid for and presented a legal ticket. To the proposition that he could not stand upon his rights, but was compelled, for the sake of saving the company from the consequences of its threatened breach of contract, to (576) pay his fare again in cash, if he had it, and then sue for its recovery, we do not yield our assent. After a breach of contract has been committed, the injured party is not allowed to aggravate his damages, and is required to use reasonable diligence to minimize them. But beforehand one is not forced to abandon his legal right under a contract, and waive the damages that may arise from its breach, in order to induce his adversary not to proceed as he wrongfully claims is his right." We find no reversible error in the record and the judgment below must be affirmed.
No error.