not be defeated by the fact that the conductor did not know that the white passenger intended to misbehave himself." In the same State, in an action by a colored woman, it has been held that if, in contravention of the statute, a railroad company, through its servants. permits a drunken white man to enter a compartment set apart fər colored people, and such colored passenger there riding is subjected to annoyance and insult from his profane and indecent language, she may recover damages, although the trainmen did not know what was taking place within the car.76 On the other hand, if a colored person persists in riding in a car, or in a compartment of a car set apart for the use of whites, where the statute law requires the two races to be kept separate on railway trains, the railway company will have the right, and will be under the duty, of removing such colored passenger to the car or compartment set apart for colored persons; but this removal must be done without unnecessary or excessive force or violence; and where, in effecting such a removal of a colored woman. unnecessary force was used by a person called upon by the conductor to assist him, the railway company was liable for damages which. were the proximate result of the use of the unnecessary and excessive force."

§ 3099. Duty to Protect Second-Class Passengers.-Passengers who travel in second-class cars, or in second-class compartments of vessels. are entitled, at the hands of the carrier, to the same protection from violence, insult and fraud, at the hands of other passengers, of intruders, or of the carrier's own servants, to which first-class passengers are entitled.78

75 Quinn v. Louisville &c. R. Co., 98 Ky. 231; s. c. 17 Ky. L. Rep. 811; 32 S. W. Rep. 742.

76 Wood v. Louisville &c. R. Co., 101 Ky. 703; s. c. 19 Ky. L. Rep. 924; 8 Am. & Eng. Rail. Cas. (N. S.) 711; 42 S. W. Rep. 349.

77 International &c. R. Co. v. Miller, 9 Tex. Civ. App. 104; s. c. 28 S. W. Rep. 233; writ of error denied 87 Tex. 430; s. c. 29 S. W. Rep. 235. It has been held that an instruction to the effect that, as the law requires separate accommodations on the railway trains for the white and colored races, if the company had not provided separate cars for them, and the injuries which plaintiff, a colored man, sustained, were the proximate result of such

82

80

81

§ 3100. Extent of this Duty at Railway Stations."-A railroad company is under the same general duty of protecting its passengers from violence, insult, and fraud, whether at the hands of other passengers, or of intruders, or of the company's own servants while waiting at its station to take its train, that rests upon it after the passenger has boarded its train. But the company is not an insurer in favor of one waiting or intending passenger, against the consequences of the misconduct of others, but is liable only where it has been guilty of some fault in failing to protect the injured passenger. The meaning is that the railroad company will not be held liable to the injured passenger, unless the company had notice that the outrage was intended, or unless it was reasonably to be expected. Here, as in other cases, the railroad company will not be held answerable for failing to prevent a sudden and unexpected injury visited upon a passenger by another passenger, or by a third person. Thus, it has been held that a railroad company is not liable in damages at the suit of a female passenger, on account of obscene and profane language, indecent exposure of the person, and other disorderly conduct, by intruders at the station while the plaintiff was awaiting the arrival of the train, when it was not shown that the company had notice of any facts which justified the expectation of such an outrage. But the habitual misconduct of the third person,-for example, a cabman,at or about the station of the railway company, may be such as to charge the company with notice that he is liable to maltreat passengers, and to make it the duty of the company to extend special protection to them against the consequences of his misconduct; and whether his habit of misconducting himself as against passengers was so notorious that the railway company had, or should have had, knowledge of it, was held a question of fact for the jury. But it is not to be inferred from this that the limit of the duty of the railroad company is to protect from physical violence persons who are waiting in the waiting-room of its station to take a train. It may, for example, become liable to a woman for failing to protect her from abuse and insult while so waiting, although she may not at the time have purchased her ticket.85

7 This section is cited in § 2640. So Texas &c. R. Co. v. Jones (Tex. Civ. App.), 39 S. W. Rep. 124; s. c. 1 Am. Neg. Rep. 531 (no off. rep.); Exton v. Central R. Co.. 63 N. J. L. 356; s. c. 46 Atl. Rep. 1099; aff'g s. c. 62 N. J. L. 7; 42 Atl. Rep. 486.

$1 Texas &c. R. Co. v. Pierce, 10 Tex. Civ. App. 429; s. c. 30 S. W. Rep. 1122.

82 Ante, § 3093.

84

83

83 Batton v. South &c. R. Co., 77 Ala. 591; s. c. 54 Am. Rep. 80.

84 Exton v. Central R. Co., 63 N. J. L. 356; s. c. 46 Atl. Rep. 1099; aff'g s. c. 62 N. J. L. 7; 42 Atl. Rep. 486 (cabmen were in the habit of scuffling in passage-way leading from ticket office to baggage room).

85 Texas &c. R. Co. v. Jones (Tex. Civ. App.), 39 S. W. Rep. 124; s. c. 1 Am. Neg. Rep. 531 (no off. rep.).

87

§ 3101. This Duty Extends to Protecting Passengers against the Carrier's own Servants.86-As we shall more fully see, the duty under which a carrier of passengers stands, of carrying his passengers safely, extends to protecting them against the violence, abuse or other misconduct of the carrier's own servants. This duty has even been regarded as resting upon a higher plane than the duty of protecting the passenger against strangers; and it has been said that for a failure to perform it the carrier ought to make the amplest reparation. the other hand, on a theory somewhat analogous to the doctrine of contributory negligence, or perhaps, under the operation of the maxim volenti non fit injuria,—if the passenger, by his own misbehavior. provokes an encounter between himself and a servant of the carrier, the carrier will not be responsible to the passenger for the results of that encounter.89

90

On

§ 3102. Whether the Carrier has Performed this Police Duty & Question for a Jury.-Whether the carrier has acted reasonably and properly in the discharge of the duty which the law usually puts upor him to the end of protecting his passengers, will, in general, depend upon the consideration of a variety of circumstances, and it is therefore generally a question for a jury. For instance, it has been held a question for a jury whether the carrier has provided a sufficient number of officers for the protection of his passengers. So, in a case where a passenger was injured by the accidental discharge of a gun which fell from the hands of a soldier, who was engaged in a scuffle, and who was one of a large body of soldiers that had embarked upon the defendant's boat,-many of them drunken and disorderly, though in charge of their officers and a guard,-Shipman, J., left it to the jury to say whether the officers of the boat exercised the utmost care in attempting to quell the disorder, or in informing the pas sengers of the character of the men and of the danger of coming in contact with them.91

86 This section is cited in § 3187. 87 Post, §§ 3184, 3186.

88 Southern Kansas R. Co. v. Rice, 38 Kan. 398; s. c. 16 Pac. Rep. 817. 80 Scott v. Central Park &c. R. Co.,

53 Hun (N. Y.) 414; s. c. 24 N. Y. St. Rep. 754; 6 N. Y. Supp. 382.

90 Holly v. Atlanta Street R. Co., 61 Ga. 215; s. c. 7 Reporter 460.

91 Flint v. Norwich &c. Transp. Co., 34 Conn. 554.

CHAPTER XCV.

REGULATIONS OF THE CARRIER.

ART. I.

In General, §§ 3104-3116.

ART. II.

Validity of Various Police Regulations, §§ 3119-3138. ART. III. Regulations Respecting the Purchase of Tickets and the Payment of Fares, §§ 3141-3150.

ART. IV. Regulations Respecting Passengers on Freight and Stock Trains, §§ 3153-3158.

3110. Analogous doctrine in regard 3116. Custom or usage created by

to corporate by-laws and

course of conduct.

ordinances.

§ 3104. Carrier may Establish Reasonable Regulations. It is a settled rule of law that a common carrier of passengers may make reasonable and lawful regulations for the conduct of his business, and that passengers must conform to them. Assuming the validity of

1 Dickerman v. St. Paul &c. Co., 44 Minn. 433; Boster v. Chesapeake &c. R. Co., 36 W. Va. 318; s. c. 15 S. E. Rep. 158; Poole v. Northern &c. R. Co., 16 Or. 261; s. c. 19 Pac. Rep. 107; Day v. Owen, 5 Mich. 520; s. c. Thomp. Carr. Pass. 306; Bass v. Chicago &c. R. Co., 36 Wis. 450; s. c. Thomp. Carr. Pass. 311; Chi

cago &c. R. Co. v. Parks, 18 Ill. 460; s. c. Thomp. Carr. Pass. 319; Duling v. Philadelphia &c. R. Co., 66 Md. 120; s. c. 5 Cent. Rep. 570; Kirby v. Western Union Tel. Co., 7 S. D. 623; s. c. 30 L. R. A. 621; 65 N. W. Rep. 37; Louisville &c. R. Co. v. Turner, 100 Tenn. 213; s. c. 47 S. W. Rep. 223; Church v. Chicago &c. R. Co.,

the regulations which the carrier has made for the transaction of his business and the discharge of his public duties, passengers who enter into contracts of transportation with him, as by purchasing a passage ticket, impliedly agree to sumbit to such reasonable rues and regulations as the carrier may have made affecting the execution of the contract, such, for example, as regulations concerning the running of the carrier's trains and the route which they shall take. This statement will apply to regulations embraced in schedules prescribing the time for the starting and the running of railway trains, and the places along the route at which particular trains shall stop. It follows, from the foregoing statement, that if a passenger would hold a railway company to the full measure of its responsibility for his safe carriage, he must conform to all reasonable rules which the company may make looking to the safety of its passengers, in so far as the conditions will permit, where he has notice of them, or where the circumstances are such as to make it his duty to acquire notice of them. Hence, if the passenger is injured in consequence of the violation of a rule of the carrier designed to promote his safety, of the existence of which rule he knew or ought to have known, and if his violation of the rule is the proximate cause of the injury received by him, he can not recover damages from the carrier. It has been reasoned that the right to be carried by a common carrier of passengers is a right superior to the rules and regulations of the carrier. and can not be affected by them; but the accommodation of passengers, while being transported, is subject to such rules and regulations as the carrier may make, provided they be reasonable. Such rules and regulations must, however, have for their object the accommodation of passengers generally, and they must be of a perma nent nature, and not made for a particular occasion or emergency.

§ 3105. What Necessary to the Validity of such Regulations.— There is scarcely any room to doubt that the validity of the regula tions of a common carrier of passengers, especially of an incorporated carrier, is tested by the same rules which are applied in determining

6 S. D. 235; s. c. 26 L. R. A. 616; 60 N. W. Rep. 854; Downey v. Chesapeake &c. R. Co., 28 W. Va. 732; Lake Shore &c. R. Co. v. Kelsey, 180 Ill. 530; s. c. 54 N. E. Rep. 608; aff'g s. c. 76 Ill. App. 613; Gulf &c. R. Co. v. Moody, 3 Tex. Civ. App. 622; s. c. 30 S. W. Rep. 574.

2 Duling v. Philadelphia &c. R. Co., 66 Md. 120; s. c. 5 Cent. Rep. 570.

"Downey v. Chesapeake &c. R. Co., 28 W. Va. 732.

Lake Shore &c. R. Co. v. Kelsey, 180 III. 530; s. c. 54 N. E. Rep. 608; aff'g s. c. 76 Ill. App. 613.

5 Vol. II, § 1763. For various illustrations of the above principle, see ante. § 2942, et seq.

Day v. Owen, 5 Mich. 520; s. c. Thomp. Carr. Pass. 306.

'This section is cited in § 3109.