§ 248. PROVINCE OF COURT AND JURY. Where the facts are undisputed, the reasonableness of a regulation of a common carrier affecting the transportation of passengers is one of law for the court, and not of fact for the jury.' The necessity for this rule lies in the fact that it is only by this method that fixed and permanent regulations can be established. If the question were left to juries, one rule would be applied by them to-day and another to-morrow. In one trial a railway would be held liable, and in another, presenting the same questions, not liable. Neither the companies nor passengers would know their rights or their obligations. A fixed system for the control of the vast interests connected with railways would be impossible, while such a system is essential equally to the roads and to the public.2

§ 248. 1 St. Louis, A. & T. Ry. Co. v. Hardy, 55 Ark. 134, 17 S. W. 711; St. Louis, I. M. & S. Ry. Co. v. Adcock, 52 Ark. 406, 12 S. W. 874; South Florida R. Co. v. Rhodes, 25 Fla. 40, 5 South. 633; Gregory v. Railway Co. (Iowa) 69 N. W. 532; Chilton v. Railway Co., 114 Mo. 88, 21 S. W. 457. But the question whether the facts are such in a given case that the regulation can be properly enforced may be for the jury. Hoffbauer v. Railroad Co., 52 Iowa, 342, 3 N. W. 1210. But in State v. Overton (1854) 24 N. J. Law, 435, and in Morris & E. R. Co. v. Ayers, 29 N. J. Law, 393, it was held that the reasonableness of regulations made by railroad companies with regard to the conduct of passengers is a question of fact for the jury. But in Compton v. Van Volkenburgh, 34 N. J. Law, 134, Beasley, C. J., said, in reference to these cases: "There is no doubt that the rule thus intimated is in opposition to recent American authorities. * The submission of such a question to the jury appears on many grounds objectionable, and in opposition to legal analogies."

2 Illinois Cent. R. Co. v. Whittemore, 43 Il. 420; Louisville, N. & G. S. R. Co. v. Fleming, 14 Lea (Tenu.) 128, 144.

CHAPTER XX.

DUTY AS TO ACCOMMODATIONS.

§ 249. Must Furnish Reasonable Accommodations.

250. At Stations.

251. During Transportation-Seats.

252. Same--Heating Cars.

253. Sleeping Cars.

254. Chair Cars.

255. Separation of Passengers on Account of Sex.

256. Separation of Passengers on Account of Color.

257. Same-Statutes Requiring Separation.

258. Same-Statutes Requiring Equal Accommodations.

§ 249.

MUST FURNISH REASONABLE ACCOMMODA

TIONS.

A common carrier of passengers is bound to furnish passengers the usual and reasonable accommodations incident to the mode of conveyance adopted by the carrier.

The contract of transportation includes, by implication of law, the ordinary comforts incident to the mode of conveyance adopted by the carrier, in the absence of express stipulations to the contrary. Statutes in some of the states expressly require the carrier to furnish reasonable accommodations for passengers,' and to fur nish sufficient accommodations for all passengers reasonably to be expected to require carriage at any one

§ 249. 1 Civ. Code Cal. § 2184; Comp. Laws Dak. § 3841; Civ. Code Mont. 1895, § 2793; 1 Rev. St. S. C. 1893, § 1710.

2

time, or offering themselves as passengers a reasonable time before the advertised starting time of the conveyance.3 These statutes are probably merely a reenactment of the common law.

The supreme court of Illinois has recently held that a railroad company does not fulfill its duty to the public by attaching a passenger coach to a freight train, and the courts will compel it by mandamus to run a passenger train, where its business will warrant the expense of putting on such a train."

2 Civ. Code Cal. § 2185; Civ. Code Mont. 1895, § 2895; Comp. Laws Dak. § 3893.

3 Mansf. Dig. Ark. § 5475; Rev. St. Ind. 1894, § 5185; Gen. St. Kan. 1889, § 1212; Ky. St. 1894, § 783; 1 How. Ann. St. Mich. § 3324; Ann. Code Miss. 1890, § 4306; Comp. Laws N. M. 1884, § 2671; Laws N. Y. 1850, c. 140, § 36; Code N. C. 1883, § 1963; Sayles' Civ. St. Tex. art. 4226. A carrier of passengers must not overload his vehicle. Civ. Code Cal. § 2102; Civ. Code Mont. 1895, § 2792; Comp. Laws Dak. § 3840. Every railroad corporation "shall furnish sufficient accommodations for the transportation of passengers and freight, and shall take, transport, and discharge all passengers to and from such stations as the trains stop at, from and to all places and stations on their said road, on the payment of fare." Comp. Laws Neb. 1893, c. 16, § 121, p. 312. Gen. St. Conn. 1888, § 3540, requires railroad companies, from the 1st of May to the 1st of November, annually, to carry through each passenger car, once an hour, a suitable quantity of good drinking water for the free use of passengers, with suitable appurtenances for carrying it, and a clean tumbler for using it. Laws N. Y. 1864, c. 582, requires railroad companies to furnish passenger cars with drinking water; and Code Ala. § 1155, requires them, in addition, to keep good lights on night trains.

4 People v. St. Louis, A. & T. H. R. Co. (Ill. Sup.) 45 N. E. 824. The court said: "What we hold is that there cannot be a suitable and proper operation of the railroad as a carrier of passengers where the car in which it carries its passengers is part of a freight train, because freight trains are inferior to passenger trains, and travel in them is attended with less comfort, convenience, and safety than

§ 250. AT STATIONS.

The New York court of appeals has held that, at common law, a common carrier of passengers and freight is under no obligation to provide depots for passengers awaiting transportation, or warehouses for freight. But where a station building has been erected by a railway company, to which passengers are invited while waiting for trains, a common-law duty rests on the company to provide reasonable accommodations for those who accept its invitation. Thus, it

travel in passenger trains. The inferiority of a freight train to a passenger train as a mode of carrying passengers is so obvious that no man of ordinary understanding would regard the use of a freight train for the purpose of hauling a passenger car as a suitable and proper opération of the railroad in the matter of transporting passengers." It was further held that, in determining whether a railroad's business is sufficient to require it to run a separate passenger train, the court will take into consideration the business of the road as a whole, and not merely of the branch line on which it runs no passenger train. If the business of the whole road shows a large net profit, it will be compelled to run a passenger train on the branch line, which passes through a fairly populous country, with numerous towns, ranging in population from 200 to 5,000.

§ 250. 1 People v. New York, L. E. & W. R. Co., 104 N. Y. 58, 9 N. E. 856. It was further held that no such obligation is imposed by the general railroad act of New York (Laws 1850, c. 140), or the various amendments thereof, upon railroad corporations organized under it. The supreme court of the United States has also held that it rests entirely within the discretion of the company as to where it is best to locate its stations, and, in the absence of a statute or of a valid contract requiring the location at a certain place, a court has no authority, by mandamus, to compel its location there. Northern Pac. R. Co. v. Washington Territory, 142 U. S. 492, 12 Sup. Ct. 283, reversing 3 Wash. Ter. 303, 13 Pac. 604.

2 McDonald v. Railroad Co., 26 Iowa, 124.

is the duty of a railroad company to use ordinary care in cold weather to heat the passenger waiting room for a reasonable time before the departure of its trains.* But a carrier is not liable because the agent at the depot was cross, and refused to inform an arriving passenger of the name of the town, or where she could find an hotel; and because, on her asking for water, he merely pointed to a tank some distance away, or because men and boys around the station jeered and laughed at her.*

In a number of states statutes exist which require railroad companies to maintain comfortable waiting rooms for passengers at stations; and in others statutes exist requiring railroad companies to keep the

8 Texas & P. Ry. Co. v. Cornelius (Tex. Civ. App.) 30 S. W. 720. Supp. Sayles' Rev. Civ. St. Tex. art. 4238, which requires every railroad company to keep its passenger houses warmed for one hour before the arrival of trains, does not relieve it from liability to a passenger who becomes ill because he had to wait several hours for a delayed train in a cold station room, though a fire may have been built within an hour of the actual arrival of his train. Id. But a passenger who is informed that a depot will not be opened during the night must use reasonable care to protect herself from the consequences of exposure to the inclement weather while waiting for a train, and the railroad company is not liable for a sickness caused by exposure which could have been avoided by her by the exercise of reasonable care. Texas & P. Ry. Co. v. Pierce (Tex. Civ. App.) 30 S. W. 1122. A railroad company is liable to an intending passenger for injuries sustained from its failure to keep its station open and warmed in inclement weather, as required by statute. Boothby v. Railway, 66 N. H. 342, 34 Atl. 157.

4 Missouri, K. & T. Ry. Co. v. Kendrick (Tex. Cix, App.) 32 S. W. 42. 5 Code Ala. § 1154; Rev. St. Ind. 1894, § 5188; Ky. St. 1894, § 772; Gen. Laws Minn. 1885, c. 190, § 1; Rev. St. Mo. 1889, § 2582; 1 Rev. St. S. C. 1893, § 1712.