of the passenger are required of the carrier's servants, decent behavior on the part of the passenger is also required. If the passenger, assaults a servant of the carrier, the latter has a right to defend himself; and if, in a personal combat between the two brought on by the passenger's wrongful assault, the passenger is injured, the carrier will not be liable.13 But where, by the use of abusive or insulting language only, the passenger p、kes an unnecessary assault upon his person by a servant of the carrier, the carrier will nevertheless be liable for the act of his servant, since words of provocation can never justify the unnecessary violence of the servant toward one whom it is the carrier's duty to protect from harm.14 And although the servant will be justified in using force to repel an attack upon his person by a passenger, no more force must be used by him than is reasonably necessary for his defense and protection and the orderly conduct of the carrier's business.15 The duty is obligatory upon the carrier to protect the passenger from injury, and not unnecessarily to abuse or mistreat him; and where the carrier seeks to justify an assault by a servant upon the passenger, it will be incumbent upon him to show that no more force was used than was necessary 13. Railroad Co. v. Jopes, 142 U. S. 18, 12 Sup. Ct. R. 109, 35 L. R. A. 919; O'Brein v. Transit Co., Mo. App. -, 84 S. W. Rep. 939; Scott v. Railroad Co., 53 Hun, 414. 14. Railway Co. v. Mullen, 138 Ala. 614, 35 So. Rep. 701; Williams r. Gill, 122 N. Car. 967, 29 S. E. Rep. 879; Railroad Co. v. Barger, 80 Md. 23, 30 Atl. Rep. 560, 45 Am. St. Rep. 319, 26 L. R. A. 220; Houston, etc. R. Co. r. Batchler, 32 Tex. Civ. App. 14, 73 S. W. Rep. 981; St. Louis, etc. R'y Co. r. Johnson, 29 Tex. Civ. App. 184, 68 S. W. Rep. 58; Baltimore, etc. R. Co. v. Norris, 17 Ind. App. 189, 46 N. E. Rep. 554, 60 Am. St. Rep. 166. But see, contra, Railway Co. v. Motes, 117 Ga. 923, 43 S. E. Rep. 990, 97 Am. St. Rep. 223, 62 L. R. A. 507; Railroad Co. v. Hopkins, 108 Ga. 324, 33 S. E. Rep. 965. Where the passenger knowingly and intentionally violates a rule of the carrier in order to be put off the train and thereby lay the ground for an action for damages, no recovery can be had. St. Louis, etc. R'y Co. v. Trimble, 54 Ark. 354, 15 S. W. Rep. 899; Cincinnati, etc. R'y Co. v. Cole, 29 Ohio St. 126. 15. Baltimore, etc. R. Co. t. Barger, supra; St. Louis, etc. R. Co. v. Jones, Adm'r, of Berger, 64 under the circumstances.16 But, as will be seen in a later section,17 the carrier, in an action against him by the passenger for an assault by a servant, may offer proof of the passenger's insulting language or violent conduct, which is claimed to have provoked the assault, in mitigation of damages. 18. Duty as to beginning, continuing and ending the transportation. Sec. 1103. (§ 603.) The time at which the carrier must commence and complete the transportation. The passenger's ticket does not import a contract that the journey shall be commenced at the particular hour at which, according to the usual course of his business, the carrier has been in the habit of departing from the place at which the passage is to begin; nor that the carrier will transport him to his destination within the usual or expected time. In the absence of any express contract with the carrier upon the subject, all that the passenger can require of him is that due diligence shall be used, so that he shall not be delayed for an unreasonable time, and that when the journey has been once commenced it shall be prosecuted with reasonable speed, according to the particular mode of conveyance in which it is made.18 Sec. 1104. (§ 604.) Must use diligence to conform to published schedules and notices.-The published schedules or timetables of the carrier, however, are representations to the public as to the times of departure and of the periods within which his journeys will be performed. They are public pro Ark. 613, 44 S. W. Rep. 809, 39 L. R. A. 784; Galveston, etc. R'y Co. v. La Prelle, 27 Tex. Civ. App. 496, 65 S. W. Rep. 488; Russell v. The Railroad, 42 N. Y. Supp. 678, 12 App. Div. 160. But see dissenting opinion in St. Louis, etc. R. Co. v. Jones, Admr., of Berger, supra, which distinguishes between civil and criminal actions, and cites Han son v. The Railway, 62 Me. 84; 16. St. Louis, etc. R. Co. v. Jones, Admr. of Berger, supra; Railway Co. v. Mullen, 138 Ala. 614, 35 So. Rep. 701. 17. See post, § 1434. 18. Wilsey v. Railroad Co., 83 Ky. 511. fessions, up to which he must use diligence to act, and if he fail to perform his trips according to them, he will be liable to the passenger, unless he shows that he has made reasonable exertions to do so and has been prevented by accidents and delays not attributable to his negligence.19 In Heirn v. MeCaughan,20 it appeared that the defendant ran a steamer for the carriage of the mails and passengers between New Orleans and Mobile, landing at intermediate points on the coast for passengers whenever he advertised to do so, and that on the particular occasion he advertised at Pascagoula that he would land at that place for passengers. Acting upon this notice, the plaintiff's wife and himself went during the night to the wharf to take passage on defendant's vessel, and remained there in waiting for it during the balance of the night; but the boat did not land, in consequence of which they were not only greatly disappointed, but, owing to the inclemency of the weather and the exposure, the plaintiff's wife was made sick. The excuse offered by the defendant for not making the landing according to his published notice was that, owing to the low tide and stormy weather, the vessel could not have been landed without danger, and without causing a delay in the delivery of the mail at Mobile. It was held, however, that while these circumstances gave rise to no special contract between the plaintiff and defendant, they did impose an obligation upon the latter, the disregard of which was a breach of duty, for which he could be sued in an action in tort; and that there being evidence of a wilful and capricious failure 19. Coleman v. Railway Co., 138 N. Car. 351, 50 S. E. Rep. 690. As to the right of a state railroad commission to compel a company to have its train arrive at a certain station on its road at a given time in order to connect with a train of another company, see North Carolina Corp. Commission . Railroad Co., 137 N. Car. 1, 49 S. E. Rep. 191. If a railroad company changes its schedule but gives no notice of that fact to its local agent who sells a ticket for a train taken off, the company will be liable to the purchaser of the ticket if injured by such failure to run the train in accordance with the printed schedule and the representation of the agent. Van Camp r. Railway Co., 137 Mich. 467, 100 N. W. Rep. 771. 20. 32 Miss. 17. to comply with the notice, from which the plaintiff and his wife were sufferers, and as no evidence whatsoever was given of any effort by the defendant to land his boat as he had advertised, the case was properly submitted to the jury, whose province it was to determine whether there had been such wilful neglect of duty as to warrant exemplary damages. (§ 605.) Sec. 1105. Same subject.-And so where a railroad company delayed the departure of its train for about two hours after its advertised time, for the accommodation of a number of its patrons who wished to attend a performance at the theater and to be carried home after it was over, a ticketholder who went to its depot to be carried at the advertised time was allowed to recover from the company his expenses in being carried to his destination in a hired conveyance, which he preferred to employ rather than submit to the delay.21 Sec. 1106. (§ 606.) Same subject. So, in another case, where the plaintiff, having purchased a ticket for his passage over the road of a railway company, and having gone to its station to take the train at the time advertised in its time-table for starting, found that, owing to a change in the schedule of a connecting road, the train upon which he expected to go had been discontinued, of which no public notice had been given; and by reason of the delay thus occasioned he did not reach his destination in season for his business, and suffered a pecuniary loss, it was held that he was entitled to recover. The learned judges differed, however, upon the question whether the publication of the time-table amounted to a contract with the ticket-holder that a train should be in readiness to receive and carry him at the appointed time; but they all agreed that if there was not a contract, there was at least a representation, which having turned out to be false, the company was liable to an action as for a deceit.22 21. Sears v. The Railroad, 14 Al- Savannah, etc. R. Co. v. Bonaud, len, 433. 58 Ga. 180. 22 Denton v. The Railway, 5 El. & Bl. 860. To same effect, Where the carrier's time-table announced that every attention Sec. 1107. (§ 607.) Same subject. But the mere taking a ticket does not of itself prove a contract upon the part of the company, or impose upon it the duty to have a train ready to start at the time at which the passenger is led to expect it;23 and in order to maintain an action for its failure to do so he must show the breach either of an express contract or of a legal obligation created by its published time-tables or notices;24 nor does the advertisement of schedules or time-tables impose upon the carrier an absolute and unconditional undertaking to carry the passenger as he may be led by them to expect.25 In Gordon v. The Railroad,26 where the subject is learnedly examined, the facts were that the plaintiff held a ticket to be carried from a way-station to the terminus of the road; but when the train upon which he expected to be carried reached the station, being so crowded with passengers that there was no room for the plaintiff (which, being an unexpected occurrence, the road had not provided for), and being besides upon an ascending grade, which would have made it extremely difficult to start it again, it was not stopped for the plaintiff. He was therefore compelled to lie over, and brought an action against the company for the damages sustained by him in consequence of the detention; but it was held that the would be paid to insure punctuality, but that the company did not undertake that trains would start or arrive at times stated, it was held that the company was liable for an unreasonable delay. Le Blanche v. Railway Co., 1 C. P. Div. 286. Though the train is behind time, the company is not liable where the train is blown from the track by a sudden gust of wind which it would have escaped had it been on time. This is not the natural and direct result of the delay. McClary v. Railroad Co., 3 Neb. 44. 23. When the laws of a state permit fewer trains to be run on Sunday than on a week day, it becomes more particularly the duty of a passenger to consult the schedules of the company. Stricker v. Railroad Co., 60 N. J. Law 230, 37 Atl. Rep. 776. 24. Hurst v. The Railway, 19 C. B. (N. S.) 310. 25. The carrier is not liable for mere failure to transport within the time advertised on account of a washout on the road not the result of the carrier's fault. Railway Co. v. Rogers, 16 Tex. Civ. App. 19, 40 S. W. Rep. 201. 26. 52 N. H. 596. |