railway carrier was not liable to a passenger for abuse and violence from an intoxicated fellow-passenger who demanded from him money which he claimed was due him, and who threatened to take his life unless he paid it, where the conductor quieted the person intoxicated. and remained between the two during a subsequent difficulty, and delivered the intoxicated person to a policeman on reaching the next station.27 § 3088. Caution Required in the Discharge of this Duty-0: course, a considerable degree of caution is necessary in the execution of this power. The carrier will be responsible for the act of his servant in expelling a passenger from his vehicle under a mistake of fact or of judgment as to the misconduct of the latter.28 Upon familiar principles, no more force can be used than is adequate for the purpose of expulsion.29 The English Court of Exchequer Chamber held that a carrier was responsible for an injury caused by the needlessly violent expulsion from an omnibus of a person who was drunk, had refused to pay his fare, and had assaulted the guard. The time, place, and circumstances, also the condition of the passenger, will be elements for the jury to consider in deciding whether the expulsion was effected in a reasonable manner, so as not to inflict wanton or unnecessary injury upon the offending passenger, nor needlessly to place him in circumstances of peril at the time of and after his expulsion.30 Clearly, a railroad company will be held liable for injuries to a passenger caused by the unnecessary violence used on him by a fellow-passenger assisting the conductor to eject`him.31 § 3089. What a Railway Train Conductor Ought to Do on Occasions of Danger to Passengers.-The high degree of care which the law puts upon the carrier in this respect,32 requires the conductor of a railway train carrying passengers, in the event of a danger arising to his passengers from the misconduct of other passengers or of the trainmen, to exhaust every means reasonably within his power to protect his passengers: if necessary, to stop the train, to collect together all the servants of the company on the train, and also such Kinney v. Louisville &c. R. Co., 99 Ky. 59; s. c. 17 Ky. L. Rep. 1405; 34 S. W. Rep. 1066. 32 Ohio St. 345; s. c. 7 Reporter 406; Murphy v. Union R. Co., 118 Mass. 228; Marquette v. Chicago &e. 28 Higgins v. Watervliet Turnpike R. Co., 33 Iowa 562; Haley v. ChiCo., 46 N. Y. 23. 29 State v. Ross, 26 N. J. L. 224; Murphy v. Union R. Co., 118 Mass. 228. 29a Seymour v. Greenwood, 7 Hurl. & N. 355; aff'g s. c. 6 Hurl. & N. 359. 20 Pittsburgh &c. R. Co. v. Valleley, cago &c. R. Co., 21 Iowa 15. 31 International &c. R. Co. v. Miller, 9 Tex. Civ. App. 104; s. c. 28 S. W. Rep. 233; writ of error denied in 87 Tex. 430; s. c. 29 S. W. Rep. 235. 32 Ante, §§ 2722, 3085. passengers as are willing to lend a helping hand, and to make a determined effort to quell any disturbance, or to resist any misconduct which threatens the safety of his passengers.33 The conductor of a railroad train does not perform his duty on the occasion of a violent disturbance among a large body of drunken passengers, by coming to the car door and counselling the sober passengers to throw the rioters from the car,3* nor by simply hurrying an assaulted passenger from one car into another, making no effort to remove from the train the persons guilty of the assault, or to prevent their further violence.35 The powers and duties of a railway train conductor are in this respect somewhat like those of the master of a ship: he has police powers and disciplinary control over the train, and the quiet and comfort of the passengers and their safety are under his protection;36 and if he refuses to interfere, at the request of a passenger exposed to violence at the hands of another passenger, exemplary damages may be given against the company.37 He may cause a passenger who is dangerous, because on the verge of delirium tremens, to be disarmed and confined;38 or he may remove him from the train, and the company will not be liable if it turns him over to the overseer of the poor of a town having sufficient accommodations for caring for him.39 § 3090. Expulsion of Known Gamblers, Thieves and Swindlers.Gamblers and monte-men, whose purpose, in travelling upon a train, is to ply their vocations, may be excluded therefrom. But if a ticket has been sold to such a person, and the company desires to rescind the contract for transportation, and prevent him from getting on board, 33 Pittsburgh &c. R. Co. v. Hinds, 53 Pa. St. 512; s. c. Thomp. Carr. Pass. 295. liable for injuries to a passenger from an assault committed by a fellow-passenger, where its con Pittsburgh &c. R. Co. v. Hinds, ductor not only did not make a supra. 35 New Orleans &c. R. Co. v. Burke, 53 Miss. 200; s. c. 4 Cent. L. J. 539; Illinois &c. R. Co. v. Minor, 69 Miss. 710; s. c. 16 L. R. A. 627; 11 South. Rep. 101. 30 Atchison &c. R. Co. v. Gants, 38 Kan. 608; s. c. 17 Pac. Rep. 54 (and authorities therein cited). Flannery v. Baltimore &c. R. Co., 4 Mackey (D. C.) 111. 35 King v. Ohio &c. R. Co., 22 Fed. Rep. 413. Atchison &c. R. Co. v. Weber, 33 Kan. 543; s. c. 52 Am. Rep. 543; Louisville &c. R. Co. v. McEwan (Ky.), 31 S. W. Rep. 465 (no off. rep.). A railroad company was held proper effort to prevent the assault, but encouraged it, and where, with proper effort, the injury might have been prevented: Evansville &c. R. Co. v. Darting, 6 Ind. App. 375; s. c. 33 N. E. Rep. 636. On the other hand, it has been held that to hold a carrier liable for injury to one passenger caused by another, it must be made to appear that the conduct of the particular passenger who caused the injury was such as to have made it the duty of the employés of the company to exclude him before the injury occurred: Louisville &c. R. Co. v. McEwan (Ky.), 31 S. W. Rep. 465. (no off. rep.). 41 it should at the same time tender the return of the money paid for the ticket. 40 In the case just noticed, the plaintiff was prevented from entering the train. Said Dundy, J.: "Necessary force may be used to prevent gamblers from entering trains, and if found on the engaged in gambling, and refusing to desist, they may be forcibly expelled." It is not perceived why, according to the principle of one case, gamblers, pickpockets, sneak-thieves, and persons whose notoriously vicious character renders it extremely probable that their presence will result in the robbery or swindling of other passengers, may not be excluded even after they have taken passage upon the train, and before they have begun to ply their vocation. The circumstance that large numbers of the travelling public are defenseless persons, and that their property, while on the journey, is quite insecure, would seem to be a sufficient reason for vesting the carrier's servants with the power and duty of summarily expelling such notorious law-breakers at any time from a railroad train, steamboat, street car, or other public conveyance. "The safeguard against an unjust or unauthorized use of the power is to be found in the corsideration that it can never be properly exercised except in cases where it can be satisfactorily proved that the condition or conduct of a person was such as to render it reasonably certain that he would occa sion discomfort or annoyance to other passengers if he was admitted into a public vehicle, or allowed longer to remain within it." If the probability of mere discomfort or annoyance is a sufficient reason for the expulsion of an obnoxious passenger, à fortiori that of robbery ought to be. The foregoing observations are prompted by the circumstance that sufficient consideration does not seem to have been bestowed by Rolfe, B., upon the security of passengers, in a nisi prius case, where he ruled that though certain passengers were known to be pickpockets, that might be a reason for watching them, but per st did not justify putting them off. It can not be seriously contended. for example, that it is the duty of the conductor of a railroad train to detail a squad of brakemen from the control of the train to watch a gang of known pickpockets, or of the railroad company to supply every train with a private police force for this purpose. Such is not 43 40 Thurston v. Union Pacific R. Co., 4 Dill. (U. S.) 321; s. c. Thomp. Carr. Pass. 10. 41 Vinton v. Middlesex R. Co., 11 Allen (Mass.) 304; S. c. Thomp. Carr. Pass. 6. 42 Bigelow, C. J., in Vinton v. Middlesex R. Co., 11 Allen (Mass.) 304; s. c. Thomp. Carr. Pass. 6, 9. Coppin v. Braithwaite, 875. This case was cited by Davis, 43 Jur. 44 J., in the opinion of the court in Pearson v. Duane, 4 Wall. (U. S.) 605, 615; s. c. Thomp. Carr. Pass. 20; but the facts of that case in to respect resemble those under discussion, as the passenger was not a dangerous person. ** Pittsburgh &c. R. Co. v. Hinds. 53 Pa. St. 512, 516; s. c. Thomp Carr. Pass. 295, per Woodward, C. J. the duty of carriers or their agents. Therefore, if the language of Rolfe, B., is the law, passengers are without adequate protection against persons known to be dangerous, who have boarded a public conveyance for the express purpose of robbery or swindling. 45 § 3091. Responsibility to Passengers for Losses at the Hands of Gamblers, Thieves, Swindlers, Robbers, etc.-If a carrier of passengers is under the duty of refusing to carry or expelling from his vehicle known gamblers, thieves, swindlers, and robbers, it would seem to follow that he is liable for any losses happening to an honest passenger, by reason of the presence of such improper persons upon his vehicle. The master of a ship has been held responsible for losses incurred by a passenger at the hands of a pair of gamblers and tricksters, which it was in his power to have prevented, because he was aware of the character of one of the swindlers. The cheating was done in the presence of the clerk of the boat, and the master was informed of the circumstance in season to have compelled the pair to disgorge. But where the police regulations of a steamboat were so lax that time and opportunity were given a thief, without detection, to enter a stateroom and steal therefrom a portion of the plaintiff's baggage, the proprietors of the boat were held responsible for the loss. It seems that the exercise of reasonable care by the servants of a railway carrier in keeping watch in its car will exonerate it from liability for a theft committed by one passenger upon another.48 47 45 Weeks v. New York &c. R. Co., 72 N. Y. 56; s. c. 17 Am. L. Reg. (N. S.) 506; 6 Reporter 54. 46 Smith v. Wilson (U. S. Dist. Ct. South. Dist. Ala., Busteed, J.), 31 How. Pr. (N. Y.) 272. If this is so, the following case would seem not to have been well decided:-The car in which the plaintiff was a passenger was left standing alone, in the city of New York, without any of the company's servants upon it. The plaintiff, while leaving the car, was violently assaulted and robbed of a large quantity of bonds, by three persons, whose presence upon the car was unknown to the defendant's servants, though it might have been known but for their negligence. In an action for the value of the securities thus taken from the passenger, the court held that the defendant owed no such duty to the plaintiff as that of an insurer of the safe carriage of his securities in the mode of carriage adopted by him: Weeks v. New York &c. R. Co., 72 N. Y. 50, 56; s. c. 17 Am. L. Reg. (N. S.) 506; 6 Reporter 54. 47 Walsh v. The H. M. Wright, Newb. Adm. 494. But see Abbott v. Bradstreet, 55 Me. 530. 48 Illinois &c. R. Co. v. Handy, 63 Miss. 609. A decision in the Queen's Bench Division is to the effect that a railroad company is not made liable to a passenger for the loss of property stolen from him by a gang of men who enter the carriage where he is seated while the train is stopping at a station, by reason of the refusal of the station master to detain the train so as to permit the search and giving into custody of such men, although the property would have been recovered had time been afforded for such search: Cobb V. Great Western R. Co., L. R. (1893) 1 Q. B. 459. §3092. Expulsion of Passengers Guilty of Profanity, Indecency. Drunkenness, etc.1o-The use of profane and indecent language in the presence of ladies is such a breach of decorum as will afford just cause for the removal of the passenger from the carrier's conveyance, although he was provoked to such expressions by the demand of the conductor for fare which had already been paid.50 If a person, having purchased a ticket, attempts to get aboard a car when disgustingly drunk, or so drunk as to be likely to violate the common proprieties and decencies of life, he has no right to passage while in that condition; but slight intoxication, such as would not be likely to seriously affect the conduct of the person intoxicated, would not be sufficient ground to refuse him passage, although his behavior might not be in all respects strictly becoming.52 § 3093. Carrier not Responsible for Sudden and Unanticipated Acts of Misconduct by One Passenger against Another.5-If an assault upon a passenger is so sudden that it can not be prevented, and the conduct of the person making the assault has not previously been such that his action might reasonably have been anticipated, the carrier will not be responsible for the consequences. So, a railway 49 This section is cited in § 3236. 50 Chicago &c. R. Co. v. Griffin, 68 Ill. 499. See also People v. Caryl, 3 Park. Cr. Cas. (N. Y.) 326. Murphy v. Union R. Co., 118 Mass. 228; Vinton v. Middlesex R. Co., 11 Allen (Mass.) 304; S. C. Thomp. Carr. Pass. 6; State v. Ross, 26 N. J. L. 224; Pittsburgh &c. R. Co. v. Vandyne, 57 Ind. 576; Hendricks v. Sixth Avenue R. Co., 12 Jones & Sp. (N. Y.) 8. 52 Putnam v. Broadway &c. R. Co., 55 N. Y. 108, 114; Pittsburgh &c. R. Co. v. Vandyne, 57 Ind. 576. 53 This section is cited in §§ 3100, 3234. Putnam v. Broadway &c. R. Co., 55 N. Y. 108. In this case, an intoxicated passenger, having insulted two women who were in the company of the plaintiff's intestate, was ordered by the conductor of the street car in which they were riding to take a seat and be quiet, which he did. After the conductor returned to the rear platform of the car, the passenger resumed his abuse, and threatened the plaintiff's intestate with violence. None of this last conversation was in a tone sufficiently loud for the conductor to hear, nor was there any evidence 54 that it came to his knowledge. The |