Negligence, Street Railway. Carrier. Damages. The mere fact that an electric car becomes derailed because of negligence on the part of the street railway company operating it does not give to a passenger thereon a right of recovery in tort against the company, unless he suffered damage therefrom.
Where, at the trial of an action of tort against a street railway company for damages alleged to have been received by a passenger by reason of the derailment of the car upon which he was riding, it is admitted by the defendant that the derailment was caused by its negligence and the plaintiff introduces evidence of damage resulting to him, nevertheless a verdict should not be directed for the plaintiff, since the jury are not bound to believe the evidence of the plaintiff as to damages.
Where an electric car is derailed by reason of negligence on the part of the operating company, and a passenger thereon is thereby prevented from reaching his destination, the company is not necessarily liable for all of the consequences of the defendant's failure to transport the passenger to his destination, since it would not be liable for such of the consequences as could have been avoided by the plaintiff's conducting himself as a reasonable man would have done under the circumstances.
The intention of one boarding an electric street car, to be transported through several towns to a city, which is not communicated to the company operating the car, the passenger paying a fare in each town, does not place the company under obligation to transport the passenger to his intended destination.
At the trial of an action of tort against a street railway company by a passenger to recover for damages alleged to have been suffered by the plaintiff by reason of the derailment of the car upon which he was riding, the plaintiff alleged and introduced evidence tending to show that he waited three hours in the night while the car was being put back upon the track and, in consequence thereof, missed a car which would have taken him to his destination and was compelled to sleep in a car barn over night. Evidence introduced by the defendant tended to show that, shortly after the car left the track, an announcement was made near to the plaintiff by an employee of the defendant in a loud voice that the passengers by walking about a mile could reach another car which would seasonably take them to the destination which was the plaintiff's, but that the plaintiff did not adopt the suggestion. The plaintiff testified that he did not hear the announcement. The derailment of the car was admitted to be due to negligence of the defendant, but the question of the defendant's liability was left to the jury under instructions to the effect that, if they should find that the defendant as it contended properly notified the plaintiff and the other passengers and that the damages suffered by the plaintiff were due to his failure to conduct himself as a reasonable man should have under the circumstances, their verdict should be for the defendant. The jury found for the defendant. Held, that the charge was proper and that the finding of the jury was warranted.
SHELDON, J.
No question was made at the trial but that the defendant was liable for any injury done to the plaintiff by reason of its car having left the track. But if no injury was caused by this to the plaintiff, if he suffered no damage whatever from the defendant's negligence, then he would not be entitled to recover. Although there has been negligence in the performance of a legal duty, yet it is only those who have suffered damage therefrom that may maintain an action therefor. Heaven v. Pender, 11 Q.B.D. 503, 507. Farrell v. Waterbury Horse Railroad, 60 Conn. 239, 246. Salmon v. Delaware, Lackawanna Western Railroad, 19 Vroom, 5, 11. 2 Cooley on Torts, (3d ed.) 791. Wharton on Negligence, (2d ed.) § 3. In cases of negligence, there is no such invasion of rights as to entitle a plaintiff to recover at least nominal damages, as in Hooten v. Barnard, 137 Mass. 36, and McAneany v. Jewett, 10 Allen, 151. Accordingly, the first and second of the plaintiff's requests for rulings could not have been given, and the rulings made were all that the plaintiff was entitled to.
The other rulings asked for could not have been given in the form in which they were expressed, because the third stated the rule of damages too broadly, so that the defendant would have been held for damages resulting from the plaintiff's own acts; the fourth was open to the same objection, and made the right of the plaintiff to be carried through to Newport depend merely upon his unexpressed intention, regardless of whether it had been communicated in any way to the defendant, and whether the defendant had undertaken to carry him to Newport or not; and the fifth made the plaintiff's rights depend solely upon his having heard the announcement made by the defendant's servant, without regard to the question whether it was seasonably and properly made. It was a question of fact for the jury whether under the circumstances the defendant had given sufficient notice of what was to be done in the existing emergency. The questions involved in these requests were fully covered by what was said to the jury. It could not have been ruled that there was an absolute and unqualified obligation upon the defendant, either by agreement with the plaintiff or as a duty arising from the circumstances, to carry him to Newport. He had procured no ticket, he had paid no fare to that place. A separate fare was to be paid in each town upon the route as it was passed through; and he seems to have been carried as far as he had paid or offered to pay his fare. The attention of the jury was carefully directed to the question whether the defendant had properly notified the plaintiff and the other passengers that those who wished to go to Newport should walk to the ferry, and there take the last through car, which would wait for them; and under the instructions the jury must have settled this question in the defendant's favor, and have found that the plaintiff's exposure and subsequent failure to reach Newport were due to his own acts and to his own failure to conduct himself as a reasonable man should have done, rather than to any fault of the defendant. This makes it unnecessary to determine whether the judge went too far in saying that the jury could not find that there was a contract to carry the plaintiff from Fall River to Newport. And the ruling that he could not recover for the walk from Library Corner was assented to by his counsel, and has not been specifically complained of.
There was no error in what was said by the judge as to the measure of damages. It was the duty of the plaintiff, not only to do nothing to aggravate the results of the accident, but to use all reasonable care to lessen the injurious effects of what had happened. Ingraham v. Pullman Co. 190 Mass. 33. French v. Vining, 102 Mass. 132, 137. Sherman v. Fall River Iron Works, 2 Allen, 524, 526. Loker v. Damon, 17 Pick. 284. This was in substance the ruling made.
The plaintiff's misfortune seems to have been that the jury failed to believe much of his testimony; but this they had the right to do, even where it was uncontradicted. Lindenbaum v. New York, New Haven, Hartford Railroad, 197 Mass. 314. Commonwealth v. McNeese, 156 Mass. 231.
Exceptions overruled.