tion for the indignity, he can maintain his appropriate action. In Pullman Palace Car Co. v. Reed, Reed had purchased a ticket for a particular berth in a sleeping car, and had lost it after entering the car. He refused to pay a second time, and was forcibly expelled after producing proof that he had purchased a ticket for a berth. A verdict of $3,000 was held to be excessive, and it was also held that the plaintiff was only entitled to recover the price paid for the ticket and reasonable compensation for the trouble and inconvenience he suffered by being deprived of a berth in the sleeping car. See also Hall v. Memphis & Charleston R. R. Co., 9 Am. & Eng. R. R. Cas. 349.

In the case first cited, it was expressly held by this court, that where the passenger paid on the demand of the conductor, his action will be as complete as if he resists and suffers himself to be ejected, and his ejection in such case will add nothing to his cause of action. We entertain no doubt that appellee was entitled to recover the amount of the cost of a ticket from the place he was ejected from the cars to New York. He was also entitled to recover such damages as he sustained on account of the delay occasioned by the expulsion, and all additional expense necessarily occasioned thereby, as well as reasonable damages for the indignity in being expelled from the train; but we perceive no ground upon which he can recover for personal injuries received, unless the expulsion was malicious or wanton. When the conductor demanded that appellee should pay fare or leave the train, he would have been justified in refusing to pay fare and in leaving the train on the command of the conductor, and had he done so, he would have received no personal injuries, and might then have brought his action and recovered as before stated; but when he refused to leave the train and thus compelled the conductor to resort to force, he cannot recover for an injury which he voluntarily brought upon himself. The conductor was ordered by his superior not to receive a ticket like the one presented. This order he was bound to obey, and so far as appears he acted in good faith, and when appellee was notified by the conductor that his ticket was not good and would not be received, it was his duty to leave the train in a peaceable manner, and hold the company responsible for the consequences, rather than resist or undertake to retain his place on the train by force.

A train crowded with passengers, often women and children, is no place for a quarrel or a fight between a conductor and a passenger, and it would be unwise and dangerous to the traveling public to adopt any rule which might encourage a resort to violence on a train of cars. The conductor must have the supervision and control of his train, and a demand on his part for fare should be obeyed, or the passenger should in a peaceable manner leave the train and seek redress in the courts, where he will find a com

plete remedy for every indignity offered and for all damages sustained.

The instructions in reference to the damages we regard as erroneous, and for this error the judgment will be reversed and the

cause remanded.

Mulkey, J., dissents.

Through Contract for Passenger Transportation.-When a through ticket is sold by a railroad company over several connecting roads to a point beyond its own line, this is, in some cases, considered to be a definite contract on the part of the road selling the ticket to transport the passenger through to his destination. Williams v. Vanderbilt, 28 N. Y. 217; Nazac v. Boston, etc., R. Co., 7 Allen, 329; Wilson v. Chesapeake, etc., R. Co., 21 Gratt. 654; Quimby v. Vanderbilt, 17 N. Y. 306; Candee v. Pennsylvania R. R. Co., 21 Wisc. 582; Carter v. Peck, 4 Sneed, 203; Hart v. Renssalaer, etc., R. Co., 8 N. Y. 37; Weed v. Saratoga, etc., R. Co., 19 Wend. 534; Cary v. Cleveland, etc., R. Co., 29 Barb. 35; Illinois, etc., R. Co. v. Copeland, 24 Ill. 337; Croft v. Baltimore, etc., R. Co., 1 McA. 492.

Company Selling Through Ticket is Agent for Other Lines.-In other cases the purchase of a through ticket has been regarded as a distinct contract with e..ch road over which the traveler is to pass, the selling company acting as agent for each of the others in making the sale. Nashville, etc., R. Co. v. Sprayberry, 9 Heisk (Tenn.), 852; Hood v. New York, etc., R. Co., 22 Conn. 1; Furstenheim v. Memphis, etc., R. Co., 9 Heisk, 238; Knight v. Portland, etc., R. Co., 56 Me. 235; Hartan v. Eastern R. Co., 114 Mass. 44; Cuicago & R. I. R. Co. v. Fahey, 52 Ill. 81; Pennsylvania R. R. Co. v. Schwarzenberger, 45 Pa. St. 208.

See also Kessler v. New York, etc., R. Co., 61 N. Y. 538; Brooke v. Grand Trunk R. Co., 15 Mich. 322.

Expulsion for Non-Payment of Fare or Failure to Produce Regular Ticket. It is clear that, as a general rule, a railroad company is entitled to expel from its trains a passenger who refuses to pay his fare when it is lawfully demanded. Haley v. Chicago, etc., R. Co., 21 Iowa, 15; Lillis v. St. Louis, etc., R. Co., 64 Mo. 464; Great Western R. Co. v. Miller, 19 Mich. 305; Ohio, etc., R. Co. v. Muhling, 30 Ill. 9; O'Brien . Boston, etc., R. Co., 15 Gray, 20; Chicago, etc., R. Co. v. Roberts, 40 Ill. 503; Chicago, etc., R. Co. v. Peacock, 48 III. 253; Willetts v. Buffalo & Rochester R. Co., 14 Barb. 585; O'Brien v. N. Y. Central & H. R. R. Co., 1 Am. & Eng. R. R. Cas. 259; Lane v. East Tenn. Va. & Ga. R. R. Co., 2 Am. & Eng. R. R. Cas. 278; Indianapolis & St. Louis R. Co. v. Kennedy, 3 Am. & Eng. R. R. Cas. 467; Swan v. Manchester, etc., R. R. Co., 6 Am. & Eng. R. R. Cas. 327; Skillman v. Cincinnati, etc., R. Co., 13 Am. & Eng. R. R. Cas. 31.

Or who fails to produce other than an irregular and improper ticket. Keeley v. Boston, etc., R. Co., 67 Me. 163; Jerome v. Smith, 48 Vt. 230; Pullman Palace Car Co. v. Reed, 75 Ill. 125; Frederick v. Marquette, etc., R. Co., 37 Mich. 342; Chicago, etc., R. Co. v. Griffin, 68 Ill. 499; Goetz v. Hannibal, etc., R. Co., 50 Mo. 272; Barker v. New York, etc., R. Co., 24 N. Y. 599; Hill v. Syracuse, etc., R. Co., 63 N. Y. 101; Bennett v. New York, etc., R. Co., 69 N. Y. 594; Sherman v. Chicago, etc., R. Co., 40 Iowa, 45; Lillis v. St. Louis, etc., R Co., 64 Mo., 464.

Or who fails to produce any ticket at all, though he may have originally bought one which he has lost or left behind him. Downs v. New York & N. H. R. Co., 36 Conn. 287; Jerome v. Smith, et al., 48 Vt. 230; Duke & Wife v. Great Western R. Co., 14 Upp. Can. Q. B. 377.

Failure to Produce Regular Ticket Caused by Mistake of Company's Servant. An important question often arises as to the rights of a passenger where he is unable to produce a ticket, or is able to produce only a defective or irregular one in consequence of some fault or negligence of the company's servants. This subject is best considered under three heads.

Total Failure to Produce Ticket. (1) Where the passenger is unable to produce any ticket at all through the fault of the company's servants. This may occur when the ticket agent at the station has delivered by mistake to the passenger a less number of tickets than he has asked and paid for. Weaver v. Rome, W. & O. R. Co., 3 T. & C. (N. Y.) 270. It also occurs where one conductor has, by an inadvertence, collected a passenger's ticket without informing the subsequent conductor that he has done so. Shelton v. Lake Shore & Michigan S. R. Co., 29 Ohio St. 214; Townsend v. N. Y. Central & H. R. R. Co., 56 N. Y. 295. In neither case can the conductor be expected to listen to the passenger's account of the transaction. It is the duty of the passenger enher to pay his fare or to walk quietly off the train, and have resort to an action against the company for the expense and trouble to which he has been subjected. If he attempts to retain his place without paying fare. and is expelled by the conductor, he can recover no damages for the expulsion. A contrary doctrine is laid down in City & Suburban R. Co. v. Brauss, 70 Ga. 368: s. c. supra. But we cannot believe that this case will be generally accepted as law.

Production of Ticket Irregular on Face.-(2) Where the passenger is, through the fault of the servants of the company, unable to produce any ticket but an irregular or imperfect one, which appears on its face to be irregular or imperfect. This occurs when the ticket agent, by mistake, sells a ticket to the wrong destination. Frederick v. Marquette, H. & O. R. Co., 37 Mich. 342; Chicago, B. & Q. R. R. Co. v. Griffin, 68 Ill. 499. Or where a party is informed by the ticket agent that he may travel on a limited ticket, the limitation of which has expired. Hall v. Memphis & C. R. Co., 9 Am. & Eng. R. R. Cas. 348. Or where a conductor gives a party asking for a stop-off check a trip check merely. Yorton v. Milwaukee, L. S. & W. R. Co., 54 Wisc. 234; s. c. 6 Am. & Eng. R. R. Cas. 322; s. C. supra. Or where the conductor, by mistake, hands the passenger a transfer slip of the wrong color, not entitling him to ride on the road he wishes, when the passenger has been in the habit of riding on the road and knows that the slip is irregular. Bradshaw v. South Boston R. R. Co., 16 Am. & Eng. R. R. Cas. 386. In all these cases it has been held that it is the duty of the passenger to pay his fare. The ticket being on its face irregular, the passenger cannot expect the conductor to recognize it. He has his action against the company for all the expense and trouble which is a direct consequence of the original mistake, but if he refuses to pay fare and is expelled, he cannot recover damages. A similar result was reached in an analogous case, where a passenger in a sleeping car had lost his ticket, but produced a written certificate from the agent selling it to him, to the effect that he was entitled to a berth. It was held that the conductor was not bound to recognize this certificate, and was justified in expelling the party upon his refusal to pay fare. Pullman Palace Car Co. v. Reed, 75 Ill. 125.

In certain cases it has been held that conductors are bound to recognize the validity of irregular receipts or certificates issued by other employés. Thus the conductor is bound to recognize the validity of a pass granted by another conductor, which consists simply of a card marked with the party's destination and the conductor's initials. Toledo, W. & W. R. Co. v. McDonough, 53 Ind. 289. See also St. Louis, A. & C. R. Co. v. Dalby, 19. Ill. 353. It must also be observed that in some cases it has been held that the agents of a railroad company have no right to modify by parol the express terms of a ticket. A conductor has no right to grant verbally to a passenger holding a continuous ticket the right to stop over. Petrie Penna R. R. Co., 42 N. J. L. 449. A ticket agent at a way station, where a passenger has alighted, cannot grant him the right to proceed on a subsequent train where the check which he holds is limited to 16 this day and train only." McClure v. Phila. W. & B. R. R Co.. 34 Md. 532. In both these cases, the passenger attempting to continue his journey on such tickets, and refusing to pay fare, may rightfully be expelled by the conductor.

Production of Irregular Ticket Valid on its Face.-(3) Where the passenger is, through the fault of the servants or agents of the company, unable

to produce a regular ticket, although the ticket held by him appears on its . face to be good. This is the state of facts in the two cases of Hubbard v. Grand Rapids R. Co., and Pennsylvania R. Co. v. Connell, reported above. It is obvious that a new element is here introduced not involved in the previous cases. It will be observed that the two decisions are by no means harmonious. We incline to the opinion that the Supreme Court of Illinois states the law as it will ultimately be established.

LOUISVILLE & NASHVILLE R. R. Co.

v.

FLEMING.

(Advance Case, Tennessee, 1884.)

The rule of this State, in the case of contributory negligence, is, that if the injured party proximately contribute to the injury, he cannot recover damages, nor can he recover if both parties are equally in fault, but he may recover if the negligence of the other party was the proximate cause of the injury, although he may have contributed to the injury by his own negligence, such negligence going only in mitigation of the damages.

The negligence or wrongful conduct of the injured party may be considered in mitigation of damages, whether the damages recoverable be only compensatory or compensatory and exemplary.

The rule is applicablo to all cases of contributory negligence, and is not confined to cases growing out of statutes regulating the duties of railroad employés on a moving train when an obstruction appears on the track.

A person who purchases a ticket which entitles him to be carried as a passenger in a railroad train, takes it subject to such reasonable rules and regulations as the railroad company may have prescribed, and regulations would be reasonable which provided that the passenger should, on demand, exhibit his ticket on entering the train, and should afterwards, on like demand, surrender his ticket or pay the fare under the penalty, in case of failure, of removal from the cars.

The reasonableness of a rule or regulation of a railroad corporation is a question for the determination of the court, not the jury.

There is no distinction, so far as it affects the relative rights of the parties, whether a ticket be lost or mislaid by a passenger before or after going upon the train.

The exhibition of his ticket by the passenger to the employé in attendance for the purpose upon entering the train, will give the passenger no other or different rights than if he had not exhibited it.

A passenger who loses or mislays his ticket after entering the cars has no right to supply its place by offering testimony that he actually bought the ticket and lost it, and the conductor or other employé whose duty it is to take up the ticket cannot be required to hear testimony on the subject, or to determine it weight at the peril of the company undera rule which gives him no discretion.

Persons laboring under physical infirmities or otherwise unable to take care of themselves who travel on railroad trains, must provide proper assistance for themselves, and it is not the duty of the conductor, in the absence of instructions from the company, to render such assistance.

The conductor of a railroad train cannot be required to search the pockets of a passenger for his ticket, and, of course. if he consents to search a particular pocket at the request of the passenger, he is not bound to search further, it being the duty of the passenger to produce and deliver his own ticket on demand.

348

If, however, the conductor does, at the request of a passenger, undertake to search for the passenger's ticket, he should do so properly and in good faith, but only to the extent of the request, and if, acting in good faith and with ordinary diligence, he fails to find the ticket, neither he nor the company would be liable for the consequences of the failure; nor would they be liable if the passenger were guilty of equal or greater negligence.

If the conductor, after yielding to the request of the passenger to search for his ticket in a particular pocket, merely pretended to do so, or performed the act in so grossly negligeut a manner as to indicate a wanton and wicked purpose to disregard the rights of the passenger, or to wilfully inflict on him an injury, the company would be liable in exemplary damages, the negligence of the passenger going only in mitigation of the recovery; in every other contingency, if the company be liable at all, being itself free from fault, the damages would only be compensatory.

When a passenger has been removed from a railroad train wrongfully, the company would be liable for the ordinary and natural results of the act, and therefore such as might have been reasonably expected, in view of the duty of the passenger to exercise ordinary care to so act afterwards as to prevent injury.

The plaintiff in this case, an old colored man whose hands were partially paralyzed, had taken passage on the defendant's train from Franklin to Nashville, and for failing to produce his ticket or pay his fare on demand, was about eight o'clock at night put off at a station nine miles from Nashville, where there was a depot building and thirty or forty houses, many of them occupied by persons of his own race and color, and thereupon, although the night was cold with snow on the ground, and snowing and sleeting, he undertook to walk to Nashville, and did so. caused by the walk, if any, would not be the proximate result of the removal It was held that the injuries from the cars, unless after reasonable effort at the station he failed to find shelter or conveyance, nor then, if his failure, in the opinion of the jury, was due to his negligence in not having with him money to pay for the accommodations demanded, rather than a proximate result of the removal.

Bond & Henderson, and Ed. Baxter, Attys. for L. & N. R. R. Co.

H. II. Cook, Wm. House, Bate & Williams, Attys. for Fleming.

COOPER, J.-This is an action brought by Fleming against the R. R. Co. to recover damages for an alleged wrongful ejection from the company's train of cars while traveling from the town of Franklin to the city of Nashville. The verdict and judgment below were in favor of Fleming, and the company appealed in error. The referees have reported that the judgment should be reversed for an error in the charge of the trial judge to the jury. Both parties have filed exceptions, which open the whole case.

Fleming is a colored man, eighty-three years of age at the time of the occurrence, whose hands were partially paralyzed and numb, so that he could not readily grasp any little thing, nor even feel it, when between his fingers. He lives in Williamson county with his son, William Fleming, and had two daughters, who reside in the State of Kansas; one of these daughters was on a visit to him, and he intended to return with her to Kansas. On January 2d, 1879, this daughter took the plaintiff's clothes and money and