TEXAS & P. RY. CO. v. LUDLAM, 57 F. 481

PARDEE, Circuit Judge, (after stating the facts as above.) It is well-settled railway law that “it is the duty of the person about to take passage on a railroad train to inform himself when, where, and how he can go or stop, according to the regulations of the railroad company; and if he makes a mistake, not induced by the company, against which ordinary care in this respect would have protected him, he has no remedy against the company for the consequences.” See Beauchamp v. Railway Co., 56 Tex. 239-249, and the authorities there collated.

The first assignment of error raises the question, when a person has taken passage on a railroad train not scheduled to stop at his destination, without previously informing himself when, where, and how he can go or stop, according to the regulations of the railroad com panv, and is therefore wrongfully on the train, whether' it is the duty of the conductor to promptly inform him that the train does not stop at the station to which he is destined, so that he can exercise the right to leave the train at any station he chooses, before reaching the destination named in bis ticket.

In short, (be question is, where a person is wrongfully on a train, will the silence of the conductor, until ho is officially called to act, reverse ihe position, — put the passenger in the right, and the railroad company in the wrong?

The conductor on a train has many and varied duties to perform, all under the regulations of the company which he is serving, and we a.re clearly of the opinion that, without proof to show' that the conductor was authorized to vary the rules of ihe company in regard to the stopping of his train at a station not permitted under the rules, his mere silence, under the circumstances mentioned, cannot vary the obligation of the company in respect to the contract of carriage.

In relation to this assignment, it is to be further noticed that the charge complained of is based upon an issue not made by the pleadings, relates to the recovery of damages not sued for, and is objectionable as conjectural. See U. S. v. Breitling, 20 How. 252-254.

The second error complained of is the charge to the jury, as follows: •‘If you believe the lady had a ticket to Stalls, and the train upon which she was riding usually stopped at Stalls to take on or let oft" passengers, then it was the duly of the company to have carried her to Stalls that night, and they would be liable if they did noc do so.” The evidence shows that the defendant in error’s children were traveling upon a ticket sold by the company from Texarkana to stalls.

If the train, under the rules of the company, stopped at Stalls, Ihe said children were properly on the train, and were improperly put off at, Kildare. The rules of the company become known to the public by proper' publications, advertisements, and custom. Tu the charge complained of, the word “usually” is to be taken and understood as meaning habitually or customarily, and we are not prepared to say the charge was erroneous.

On the contrary, if a certain train usually, habitually, or customarily stops at a certain station to take on or let. off passengers, we are of opinion that the public may govern itself accordingly.

The third assignment of error, complaining of the refusal to charge the jury as follows: “In this case, there being no improper treatment of the children, but only refusal to carry them to Stalls, then, they having no tickets themselves, the only right to sue is in Miss Emma Ludlam, who had the ticket, and these complainants cannot recover,” — is not well taken, because, as we understand the suit, it is one to recover damages for improper treatment, as well as for violation of the contract of carriage.

The fourth and fifth assignments of error present the question as to whether a railroad company, in the absence of statutory regulation or prohibition, may adopt regulations that a certain passenger train or trains, running regularly'on its road, shall stop at only designated places or stations, and that it is the duty of the person about to take passage on the railroad train to inform himself when he can go, and where he can stop, according to the regulations of the company.

We think the law on this question is well settled in favor of the right of the company to make the regulations, and as to the duty of the passenger to take notice of them. See Beauchamp v. Railway Co., supra; 2 Wood, Ry. Law, § 356; Railway Co. v. Pierce, 47 Mich. 277, 11 N. W. Rep. 157. Regulations as to the running and stopping of trains are in fact absolutely necessary for the transaction of the company’s business, and for the safety of the employes and passengers; and their violation, at the will of the employe, or for the convenience of the passenger, ought not to be tolerated.

In the state of Texas there is no statutory provision, prohibiting railway companies from making such regulations; and the proof in this case is that, at the time of the matters complained of in this suit, there were three daily trains from Texarkana passing, through Stalls. Train ETo. 1, passing Stalls about 10 o’clock A. M.; train ETo. 5, passing Stalls at 5:43 P. M., — both stopping at Stalls; and Eio. 3, passing Stalls at 10:50 P. M., — this latter being a through train from Texarkana to El Paso, carrying through sleepers, and, by the rules and regulations of the company, prohibited from stopping at Stalls.

The proof further showed that this rule was shown by the time cards, and that circulars were issued to the public, advising them of the fact. Under the testimony, this was not only a reasonable regulation for train ETo. 3, on the part of the company, but was reasonable for the public, as Stalls is only a side track, with, no houses, (the nearest house to the station being about a half mile,) and two trains stop there daily. Under the law, and in this state of the proof, the trial judge erred in refusing the charges requested.

The judgment of the circuit court is reversed, with costs, and this cause is remanded, with instructions to award a new trial.