The opinion
Mr. Justice Brown
dissented.
In Railroad Co. v. Hill, 105 Va. 730 , 54 S. E. 872 , 6 L. R. A. (N. S.) 899, plaintiff applied to the defendant’s agent at Clinchport for a ticket to Appalachia. He paid the correct fare, but the agent, by mistake, gave him a ticket to Duffield, an intermediate point. He put the ticket in his vest pocket and boarded the train. The conductor took up the ticket and put a check in plaintiff’s hat, which indicated that he was entitled to ride to Duffield. When the cars reached that station, plaintiff did not leave the train — the conductor demanded that he pay his fare — which plaintiff refused, telling the conductor that he had bought a ticket to Appalachia. He was ejected and sued therefor. The coitrt held that he was not entitled to sue in tort for the ejection, but was entitled to sue for a breach of the contract — the mistake made by the agent in giving him a ticket to Duffield instead of Appalachia. Here there was nothing on the ticket to indicate that a mistake had been made by the agent. Plaintiff simply had a ticket to one station and demanded that the conductor accept his statement — that he had paid for one to another station. The distinction between that case and the one before us is clearly stated in the language used by the court in Frederick v. Marquette, etc., R. R. Co., 37 Mich. 342 , 26 Am. Rep. 531 , quoted with approval by Mr. Justice Buchanan:
“How. then, is the conductor to ascertain the contract entered into between the jiassenger and the railroad company when a ticket is purchased and presented to him? Practically there are but two ways — one, the evidence afforded, by 1he ticket; the other, the statement of the passenger, contradicted by the ticket.”
Here, the statement by the plaintiff is not contradicted by the ticket— but, in the light of the check to which the ticket refers and which the conductor could, for the asking, have seen, is fully corroborated. In Texas & P. Ry. Co. v. Smith, 38 Tex. Civ. App. 4 , 84 S. W. 852 , the ticket was lost. It is true that, there the passenger offered to identify her trunk and show that it had been checked to Dallas, the point to *874 which she had purchased a ticket. The court held that the conductor was under no obligation to examine it. The reasoning of the opinion is not very satisfactory, and not applicable to the conditions found in this' record. In Shelton v. Erie R. R. Co., 73 N. J. Raw, 558, 66 Atl. 403 , 9 L. R. A. (N. S.) 727, 118 Am. St. Rep. 704 , the passenger presented a limited ticket which, by its terms, had expired. The agent, by mistake, gave the passenger a limited, whereas he paid for and was entitled to an unlimited, ticket. The court enforced the rule of conclusiveness of the ticket as between the passenger and the conductor holding that the action should have been for breach of contract and not for the expulsion from the car. There was nothing on the ticket to show, or suggest, that a mistake had been made. As in the other cases, the statement of the passenger was a clear contradiction of the ticket. In Hufford v. Grand Rapids & Ind. Ry. Co., 53 Mich. 118 , 18 N. W. 580 , the ticket was invalid, and the passenger relied upon the statement of the agent from whom he purchased it — in which statement he was mistaken. Cooley, C. J., says:
“If, when the passenger makes the assertion that he has paid fare through, he can produce no evidence of it, the conductor must, at his peril, concede what the passenger claims or take all the responsibility of a trespasser if he refuses, etc. * * * But we are all of the opinion that, if the plaintiffs ticket was apparently good, he had a right to refuse to leave the car.”
This case, upon a new trial, was again before the Supreme Court ( 64 Mich. 631 , 31 N. W. 544 , 8 Am. St. Rep. 859 ) upon plaintiff’s appeal. The judgment was again reversed, Sherwood, J., saying:
“When the plaintiff told the conductor, on the train, that he had paid his fare, and stated the amount he had paid to the agent who gave him the ticket he presented, and told him it was good, it was the duty of the conductor to accept the statement of the plaintiff until he found out it was not true, no matter what the ticket contained in words, figures or other marks. All sorts of people travel upon the cars; and the regulation and management of the company’s business and trains which would not protect the educated and uneducated, the wise and the ignorant alike, would be unreasonable indeed,”
Without undertaking to reconcile the two opinions, we think that the language quoted is in accordance with sound reason, and, therefore, good law. In Erie R. R. v. Winter, 143 U. S. 60 , 12 Sup. Ct. 356, 36 L. Ed. 71 , the controversy grew but of the failure of the first conductor to whom the passenger presented his ticket to give him a “stop over” check at an intermediate station — the agent selling the ticket had informed the passenger that he could stop at such station by informing the conductor that he wished to do so. The conductor, upon being informed that the passenger wished to stop over, said he would “fix him all right” and punched his ticket, returning it to the passenger, who stopped over at the intermediate station and, upon boarding the train to complete his journey to the station for which the ticket called, presented it to the conductor who refused to accept it and demanded fare, which the passenger refused to pay and was ejected from the car. The contention was made that the ticket was the only and conclusive evidence of the contract of carriage. Mr..Justice Ramar said:
“While it may be admitted, as a general rule, "“that the contract between the passenger and the company is made up of the ticket which he pur *875 chases and the rules and regula (ions of the road, yet it does not follow that parol evidence of what was said between the passenger and the ticker, seller from whom ‘he purchased his ticket Is inadmissible, as going to make up the contract of carriage and forming a part of it”-' citing ilufford's .Case, supra.
It is further said:
“Under the circumstances of the case, as testified to by the plaintiff, the conductor of the first train was derelict in his duty in not providing the passenger with a stop-over chock when the latter slated to him that he desired to stt>p off at Olean (as he had a right to do) if such check was necessary to enable the passenger to complete his journey to Salamanca.”
We hold that the ticket, upon its face, afforded sufficient notice to the conductor that a mistake had been made by the agent selling it, to impose upon him the duty to make a reasonable effort to ascertain the truth before resorting to the harsh measure of removing the plaintiff from the car and leaving her, a stranger, in a large city without any care whatever for her safety and welfare. While he may not have so intended, he inflicted upon her, by his action,- intense suffering, humiliation, physical pain, and mental anxiety. We hold that she was rightfully on the car and entitled to pursue her journey.
[2] We are further of the opinion that, if her right be measured by the rule in respect to the form of action contended for by defendant — that is, if by the negligence of the agent selling the ticket and without any fault on her part, she was induced to believe, and did believe, that lie had, as was his duty, given her a valid ticket, whereas, in truth, the ticket was invalid — the conductor, in ejecting her from the car in the manner testified by him, was guilty of a tort, and defendant is liable for all such damages as proximately flowed therefrom. 6 Cyc. 565 (Note). In P. C. C. Ry. Co. v. Reynolds, 55 Ohio St. 370 , 45 N. E. 712 , 60 Am. St. Rep. 706 , it is said:
“When, by the fault of an agent of the company a passenger takes the wrong train or is without a ticket, or (has) one imperfectly or erroneously stamped, or for any similar reason is ejected by the conductor of the train, in pursuance of the rules of the company, it is liable to him as for a tort.”
So, after stating the rule contended for by defendant, it is said:
“The weight of authority in the courts, state and national, however, now is to the effect that the passenger has a right to rely upon the acts and statements of the ticket agent or conductor and that, if expelled from the train when he had acted in good -faith and is without fault:, the carrier will be liable in damages for such expulsion, whether the action is brought, for a breach of the contract or solely for the tort of the conductor; tiiat it is immaterial that? the different acts were by different agents of the carrier; that its liability is the same, notwithstanding, for its own convenience, it has intrusted the management of its trains to different conductors. * * * When a passenger has purchased a ticket from a railroad agent, purporting to entitle him to passage to a particular place, and has undertaken his journey therefor, and there is nothing on the face of the ticket and no prior knowledge or notice of the rules of the company, which would make such a ticket invalid, brought home to the purchaser, he is rightfully a passenger on the train, and the company is liable in an action to recover damages for his ejection.” Moore on. Carriers, 742, 743.
*876 In Northern Pac. R. R. Co. v. Pauson, 70 Fed. 585 , 17 C. C. A. 287 , 30 L. R. A. 730 (9th Cir.), Hawley, District Judge, after discussing the conflicting views of the courts and citing those cases which hold that, when the agent has made a mistake in giving the passenger a. ticket he is entitled to sue for the ejection, said:
“These eases, as well as the others previously referred to, all proceed upon the broad ground that the passenger was wholly without fault-; that he- had done all that could reasonably be required of him to do; and that the railroad company, by the mistake or carelessness of its agents or conductor was itself at fault. This is the underlying principle oi^all the well considered cases upon this subject. This principle is fair to both parties. It, is sound, reasonable and just.”
In Murdock v. Boston, etc., R. R. Co., 137 Mass. 293 , 50 Am. Rep307, it is said:
“The plaintiff had a right to act upon the explanation given to him at the time when he bought his ticket. The mistake was that of the ticket seller, in supposing that the .punched holes signified that the ticket had been used only to Chester, whereas in fact, according to the defendant’s rules for. the instruction and guidance of conductors, they signified that it had been used to Pittsfield, a station farther on. The offer of the conductor to give a receipt to the plaintiff for the additional fare which he demanded, stating the circumstances under which it was paid, so that the plaintiff might get back the money, if it should be. found that his account bf the purchase of the ticket is true, though showing good faith on the part of the conductor did not have the 'effect to make it the legal duty of the plaintiff to pay the additional fare.”
The action was forthe tort in the ejection of plaintiff from the car.
It is contended that, whatever may be the rule in other courts, state or federal, the Supreme Court of Virginia, the state in which the contract was made, has held that, in such cases, the passenger’s cause of action is for breach of the contract and not in tort; that this court should be governed by this decision. In the view which we take of this record the case is distinguished from Hill’s Case, supra, and that, therefore, no conflict between our conclusion and the conclusion of the court in that case is presented. We are further of the opinion that-the rule of comity invoked and conceded does not apply.
[3] The character-of plaintiff’s legal right and defendant’s liability is not one of local law or of practice and procedure, but is controlled by the general principles of substantive law, and, in such cases, the federal courts are not bound by the decision of the state court in which the contract is made or the cause of .action accrues. Mr. Justice Field, in Myrick v. Mich. Cent. Ry. Co., 107 U. S. 102, 109 , 1 Sup. Ct. 425, 431, 27 L. Ed. 325 , says:
“Wbat constitutes a contract of carriage is not a question of local law upon wbicb the decision of a state court must control. It is- a matter of general law upon which this court will exercise its own* judgment.” Chicago v. Robbins, 67 U. S. 418 , 17 L. Ed. 298 .
No question is presented here respecting the validity of the contract or its construction — it'is conceded that defendant entered into a-valid' contract to carry plaintiff from Newport News, Va., to Parkersburg, W. Va. The sole'-question is whether, upon failure of' defendant’s agent to deliver to the plaintiff, as was his duty, a proper token..or. evidence of such contract, the plaintiff for the injury which- 'resulted *877 therefrom is confined to an action for breach of the contract or may sue in tort for the wrongful conduct of its conductor. No case is called to our attention in which the Supreme Court of Virginia has passed upon, or discussed, a case involving facts essentially similar to those presented in this record. The Iiill Case, as we have pointed out, presents a very different state of facts. It is true that it was held in' that case that if the ticket did not, by reason of a mistake of the agent,
, entitle the passenger to go to the station claimed by him, and upon his refusal to pay the fare was ejected from the car, he could not sue in tort. We entertain for the opinion of the Supreme Court of Virginia profound respect, and would hesitate to depart from a conclusion reached by that learned and careful court, upon the same or essentially similar facts as those presented to us. In the decision of this case we do not find it necessary to do so. However, in the light of the conflicting conclusions of courts of eminent respectability and learning treating the ticket as void or a “ticket to nowhere,” we incline, very decidedly, to concur with those courts which hold that the company is liable for a breach of duty resulting in injury to a passenger by reason of the mistake or negligence of either of its agents with whom the passenger is required to deal in respect to-the transaction in which the several agents are concerned.
[4] While, as conceded, a railroad company may make rules for the guidance of its several employes engaged in a common service, binding upon them, it may not thereby change the standard and measure of duty imposed by the law, which it owes to the public or the remedy for breach thereof. If, by the negligence of the agent, a passenger is given an invalid ticket, and without fault on his part is thereby led to believe, and docs in fact believe, that a valid ticket had been given him and in good faith acts upon that belief, we fail to see how, if he sustain injury therefrom at the hands of some other agent of the company in the performance of the duty of carriage, his remedy or measure of recovery can be affected by some rule of the company, unknown to him, prescribing the respective duties of its agents. The passenger deals with the company, which owes him the duty, upon application to the proper agent and the payment of the prescribed fare, to furnish him a proper ticket and, in pursuance thereof, to carry him, safely to his destination; he looks to the corporation — the common carrier and not to its employes — to protect his rights and redress his. wrongs without regard to rules made for its internal management. Plaintiff’s case, upon the uncontradicted testimony, is a striking illustration of the injustice of any other rule. Except in respect to the degree of consideration shown for the feelings of the plaintiff — rudeness of manner, etc. — the conductor does not, in' any essential respect, contradict the plaintiff’s testimony in regard to what passed between them on the car, the manner of her removal and what • occurred■ thereafter, until he left her in the depot in Washington. In our opinion, without attributing to him any rudeness or a wanton disregard of plaintiff's rights and feelings, his conduct was grossly negligent and inconsiderate. In the aspect of the testimony, most favorable to the defendant, plaintiff has a good cause of action in tort for her wrongful ejection *878 from the car at'Washington, and defendant is liable for all damages which proximately flowed therefrom. What we have said disposes of the demurrer.
[5] The third assignment of error is pointed to the refusal of the judge to permit defendant to use, on cross-examination, a written statement made by plaintiff, unless plaintiff was allowed to show that the statement was made as a part of negotiations for a compromise. We do not perceive any error in this ruling. The time, place, and circumstances under which a statement is made are always relevant as a part of the res gestse.
[6] We find no error in the ruling of the' judge limiting the extent of the cross-examination of the plaintiff. Full and ample latitude was afforded defendant to bring out, upon cross-examination of plaintiff, all of the material facts regarding- her condition, cause and effect of her injuries.. In his sound discretion, which we think was wisely exercised, the judge placed a reasonable restriction upon counsel in this respect. This was within his discretion and not reviewable unless abused. We have carefully examined the assignments of error in regard' to the ruling- of the court upon the admission of evidence and other incidents of the trial and find in them no prejudicial error. Defendant moved to strike out certain parts of the testimony and submitted prayers in regard to certain elements of damage to which plaintiff claimed, she was entitled, which practically amounted to a demurrer to the evidence in that respect. They were so treated in the argument before us. We have carefully examined the testimony, and are of, the opinion that there was both competent and sufficient evidence, in that respect, to be submitted to the jury to sustain her allegation as to the extent and character of the special injuries sustained by her. For reasons appearing upon the record, we do not deem it necessary or proper to discuss this testimony. No legal principle is involved. The court.carefully instructed the-jury in regard to the doctrine of proxi-' mate, cause and its application to the testimony in this case. The questions involved were delicate in their character and of admitted scientific .difficulty — the physicians introduced by both parties explained to the .jury fully the conditions and probable consequences flowing from the-situation in which plaintiff was placed by the conduct of the conductor. The jury had the benefit of their opinions based upon facts and physical conditions in regard to which there was but little contradiction. We concur with the learned and careful judge, who tried the case, in the opinion that the verdict should not be disturbed.
Upon an inspection of the entire record, with the aid of the enlightening arguments and briefs of counsel, we do not find any error entitling defendant to a new trial. The Merchants’ & Miners’ Transportation Company was eliminated from the record in the court below. The judgment must be affirmed,