Green v. Missouri, Kansas & Texas Railway Co.

ON REHEARING.

ELLISON, J.

It not being the duty of a carrier to heat its freight cars for the comfort of passengers when it has a caboose in Avhich such person might ride, the defendant seeks to avoid liability by urging that the cause of action AAdiich plaintiff has stated is that it furnished him a freight car which was not heated and that it confined him in such car by locking the door so that it could not be opened and so that he could not get out in consequence of which he suffered from the cold, etc. The part of the petition necessary to examine in relation to this claim is as follows:

“That on January 6, 1903, and about four o’clock in the afternoon of said day, plaintiff was received and *732accepted as a passenger, he paying the customary fare therefor, on one of defendant’s trains to be transferred from said station of Estill to said station of Boonville aforesaid, being a distance of about four miles. That thereupon it became the duty of defendant to transport and convey plaintiff, being said passenger aforesaid, from said station of Estill to that of Boonville with reasonable expedition and dispatch.

“That defendant failed in its duty in that regard and committed a breach thereof in that instead of so transporting plaintiff with reasonable expedition and dispatch, it did so delay and procrastinate his transportation between said stations aforesaid; that said train on which plaintiff was a passenger as aforesaid did not arrive at said station of Boonville until five o’clock in the forenoon of January 7, 1903, that is to say, thirteen hours, or thereabouts, after its departure from said Estill station. That plaintiff was thereby detained and delayed in the course of his said transportation between said stations aforesaid for a period of thirteen hours or thereabouts.

“That the car in which plaintiff was being transported by defendant as aforesaid was without a stove or other contrivance for warming the same; that the Aveather at said time Avas intensely cold; that said car, after plaintiff took passage thereon as aforesaid Avas locked and sealed by defendant’s servants so that plaintiff could not get out of it; that plaintiff Avhile detained in said car and by reason of said detention suffered great discomforts and annoyance, and also great physical pain caused by the extreme coldness of the weather to which he was exposed.

“Plaintiff states that by reason of defendant’s breach of duty to him as hereinbefore set out, plaintiff has suffered great mental and physical páin; his health has been permanently injured,” etc.

In our opinion the gravamen of plaintiff’s com*733plaint, as thus stated, is not a failure to furnish a proper car, but is a breach of duty in not transporting him without unnecessary delay. The duty to convey with dispatch is specifically charged; and immediately upon the heels of such allegation is the charge of a breach of such duty. Then follows the manner of the breach: The pleader then in order to show the disastrous and damaging consequences of such breach alleges that the car in which plaintiff was being carried was unheated; that the weather was cold, and that- he could not get out of the car because of its being locked, whereby his suffering and inconvenience followed. It may be he need not have gone into such particulars. Especially should he not have stated that he was locked in the car when he was not. But an unnecessary enumeration of particulars of an injury, or of how an injury was caused, is, of course, no reason for construing such allegations as the cause of action. They clearly appear to be mere consequences of the cause of action, viz., the breach of duty in a negligent delay. Nor will such unnecessary statements, though some of them are not true, prevent a showing of those which are true. The pleader nowhere attempts to place his recovery on the ground of a breach of contract. He states that which brought about the relation of carrier and passenger as a foundation for — as showing his right to make complaint of the breach of duty. That he may thus frame his petition is well-settled law. [Atlantic Ry. Co. v. Laird, 164 U. S. 393, 398.]

So far as regards the issue of contributory negligence advanced by defendant, founded on plaintiff having voluntarily remained in the car when (as is claimed) he should have left it, we find that the defendant had the benefit of an explicit instruction on that head. An instruction, which, as written, was too broad in defendant’s favor, since it should have been limited by a proviso containing the excuse or reason given by plaintiff *734why he did not leave the car. Defendant’s refused instruction numbered 5, was properly refused. While containing some correct propositions, the effect of it was a direction to the jury to ignore plaintiff’s reason for not leaving the car.

We do not deem it necessary to refer to other points and suggestions made by defendant though we have given them all careful consideration. We conclude that the judgment should be affirmed.

All concur.