The majority of the court concur in the opinion that the evidence sustains the conclusion that defendant contracted to furnish to plaintiff the accommodation of its sleeping car Dioces from New Orleans to Jersey City, and warranted that, upon presenting his round-trip ticket to the train conductor, he should be
Upon the question of damages in cases of this kind, it is also well settled that if the plaintiff, by negligence or willfulness, allows his damages to be unnecessarily enhanced, he cannot thereby augment his recovery. But, where there has been no negligence or willfulness on the part of the plaintiff, he may recover not only the increased expense to which he may be subjected, but also compensation for inconvenience and loss of time, and for the indignity of a public expulsion from the car. English v. Canal Co., 66 N. Y. 454; Murdock v. Railroad Co., 137 Mass. 293. In this latter case a verdict for $4,500 was sustained, the case being distinguished from the earlier decision of the same court in Bradshaw v. Railroad Co., 135 Mass. 407, upon the theory that in the earlier case plaintiff was negligent in accepting without examination a ticket which was on its face insufficient to secure him the accommodation he expected to obtain.
Upon the question of damages the court in the cause at bar charged:
“Of course, there is no physical injury here, beyond the invasion of a right. If there wasn’t anything more than the conductor putting his hands upon him, it would be a matter of nominal damages. But, if Mr. King was in the right, there is something more than that, or at least it is for you to say. A man ejected from a car, a man whose rights have been invaded, may, if the jury so find it, be regarded as having suffered from a sense of indignity (‘insult,’ as the plaintiff puts it), — endured that mental' suffering, mental grievance, which all men can appreciate, and yet which is so difficult to describe; and for that he would be entitled to recover damages. But please remember that under no circumstances in this case are you to give damages as smart money. You are not to give any exemplary damages. You are not to say, ‘We are going to punish this railway company.’ This is not a ease of that nature. You can compensate Mr. King, if you feel, under the instructions I have given, that he is entitled to it, fully for the indignity and mental distress of which I have spoken. You caá also compensate hita for any expense to which he has been subjected. I don’t know as there is any evidence on that subject, but it would be at least the value of a ticket from Baltimore to New York.”
The court also charged, upon defendant’s request, that:
“If you find that the plaintiff was advised before reaching Washington that he could at that point take a train over the line of the Baltimore & Ohio Kailroad, which would arrive at Jersey Oity at about the same time .as the train he was then on, and if you further find that there was such a train, and that by the use of due diligence the plaintiff could have caught said train, it was the duty of plaintiff to use such due diligence; and there can be no recovery for any damages for delay arising- from his failure to do so, provided he had notice that the car was not going over the Baltimore & Ohio road.”
And that:
“It doesn’t make any difference where he got the notice, if he received notice from any source which was sufficient to have put a man of ordinary prudence upon his guard, so that he should have investigated the matter and acted accordingly.”
“If you find that, before defendant’s car left Washington the plaintiff knew or liad reason to believe that he had no railroad ticket entitling him to a passage over the lilies of the Pennsylvania. Railroad from Washington to Jersey Oily, and that he knew or liad reason to believe that defendant’s car would run over the linos of tlie Pennsylvania Railroad between said points, it was contributory negligence of tlie plaintiff to remain on tlie car without procuring right of transportation on that train, which precludes a recovery; that is, from Washington to New York.”
This part of the charge was more favorable to defendant than it was entitled to. Such contributory negligence would .only preclude recovery for anything in excess of the cost of the additional railroad fare.
This was a complete and accurate presentation of the case as to the measure of damages, if there was evidence from which the jury were entitled to find that plaintiff was not informed before leaving Washington that the llioc.es would be carried over a line of railroad (the Pennsylvania) on which the return-trip ticket did not entitle him to transportation. The soundness of the charge is challenged upon the theory that there was no such conflict of evidence. As to any notification being given him by the sleeping-car conductor, there was a fiat contradiction between the plaintiff and the conductor, and the notification relied on is a chance remark of plaintiff’s traveling companion, Ruthnan. The entire evidence on this point is that of the plaintiff, as follows:
“No notice was given to me at any time from the time I purchased my ticket before I arrived at Washington, or after my arrival at Washington, that I would be obliged to change this ear, — no notice that I was to go on the Pennsylvania Railroad. Mr. Iiuttman spoke to me about the subject the night before. None of the railway people gave me any notice of any kind. The night before, Mr. Iiuttman said to me that the car was going to run over the Pennsylvania, road. I said that didn’t make any difference. That was the evening before we reached Washington, — .Sunday evening. I was not notified to change at Washington by any railroad official or any sleeping-ear official. When I left Washington T didn’t know, as a matter of fact, whether I was on the IS. & O. or Pennsylvania, and I was not notified by anybody.”
Iiuttman was it witness, but was not questioned by either side as to his conversation with plaintiff’. We do not think'that, upon this state of the proof, it was the duty of the court to charge the jury that the plaintiff knew before the car reached Washington that it was going to be run on a road over which he had no ticket good for transportation, and that therefore he could not recover more than the additional fare. The disposition made of this branch of the case by the court seems to us the correct one, viz. leaving it to the jury to say whether plaintiff knew of this change from the Baltimore & Ohio to the Pennsylvania, or had received notice from any source which was sufficient to have put a man of ordinary prudence upon his guard, so that he should have investigated tfye matter and acted accordingly, with instructions that his remaining in the car after such notice, without procuring right of transportation, would he contributory negligence. Upon the evidence, it seems to us this was tlie utmost defendant could demand. The judgment is affirmed.