Pittsburgh, F. W. & C. R. Co. v. Hinds, 53 Pa. St. 512. It has also been held that a railroad company is responsible to a passenger for injuries sustained by the discharge of a musket by one of a party of soldiers on board the steamboat, who was engaged in a struggle with another soldier. Flint v. Norwich & N. Y. Transportation Co., 34 Conn. 554. If the conductor simply hurries the assaulted passenger into another car, and does not attempt to eject the guilty persons, or prevent further violence, he does not fulfil his duty. New Orleans St. L. & C. R. Co. v. Burke, 53 Miss. 200. But a railroad company is not liable to a female passenger for profane and obscene language and indecent exposure of the person by a mere intruder into a car at a station, if the acts were done under such circumstances that the company could not have foreseen and prevented them. Batton v. South & N. Ala. R. Co., 77 Ala. 591; s. c., 23 Am. & Eng. R. R. Cas. 514; 54 Am. Rep. 80.

See also Spohn v. Missouri Pac. R. Co., and note, 26 Am. & Eng. R. R. Cas. 252, 256; Chicago & A. R. Co. v. Pillsbury, and note, 26 Ib. 241, 256; Felton v. Chicago, etc., R. Co., 27 Ib. 229; Chicago & A. R. Co. v. Pillsbury, 31 Ib. 24.

MYKLEBY

ย.

CHICAGO, ST. PAUL, MINNEAPOLIS AND OMAHA R. Co.

(Minnesota Supreme Court, June 26, 1888.)

Passenger-Ejection-Assault-Pleading-Variance. A complaint alleged that plaintiff was a passenger on defendant's train, and that the agents of defendant in charge of the train wilfully, maliciously, forcibly, and violently, and while the train was running at a rapid rate of speed, kicked and ejected him from the steps of the car, on the ground, and under the cars, whereby he sustained personal injuries, for which he seeks damages. Held, that the cause of action thus pleaded was one in tort; the gravamen of the complaint being an intentional and personal assault and battery, and the fact that the evidence showed that plaintiff was a trespasser and not a passenger on the train (the wrongful assault being proved as alleged) constituted neither a failure of proof nor a material variance between the complaint and the evidence.

APPEAL from District Court, Ramsey County.

Action by Erick P. Mykleby against the Chicago, St. Paul, Minneapolis & Omaha R. Co. to recover damages for personal injuries. Plaintiff appeals from an order granting a motion by defendant to dismiss the action.

The opinion states the case..

Lomen & Torrison for appellant.

J. D. Howe, S. L. Perrin and C. D. O'Brien for respondent.

Facts.

MITCHELL, J.-Aside from much irrelevant matter, the allegations of the complaint are that the plaintiff was a passenger, and was received as such by defendant, on one of its coaches to be by it conveyed from Eau Claire to Black River Falls; that, having left the train for a temporary purpose at an intermediate point, he proceeded again to enter one of the passenger coaches, when "the defendant, by its agent and servants then and there in charge of the train, and acting within the scope of their employment, prevented the plaintiff, after he had boarded one of said cars, and gained the steps thereof, from entering the same, and then and there unnecessarily, without cause, wilfully, maliciously, forcibly, violently, and brutally, and while said train was moving at a rapid and dangerous rate of speed, pushed, kicked, and ejected this plaintiff from and off the steps of said coach, threw him to the ground under said cars, and caused the wheels of said cars to pass over one of the legs of plaintiff, crushing and mangling it so that it was necessary to amputate the same."

Upon the trial the plaintiff introduced evidence tending to prove that he was, by defendant's brakeman, kicked and thrown from the steps of the coach in the manner alleged, but failed, as the trial court thought, to prove that he bore to defendant the relation of passenger; the court holding that the evidence showed that, in attempting to enter the coach he was a mere trespasser, and for this reason granted defendant's motion to dismiss the action upon the ground of variance between the proofs and the allegations, and because the plaintiff had failed to make out the cause of action pleaded. The learned judge took the view that the complaint was founded upon the theory that the relation of carrier and passenger existed between the parties, and that its whole scope and purpose was to recover for an invasion of plaintiff's rights as a passenger; in other words, as we understand him, that the action was one ex contractu, to recover damages for breach of the contract of carriage, Action one in whereas, being not a passenger, but a trespasser, plaintiff's evidence tended to make out only à cause of action in tort for an assault and battery, and therefore the cause of action set up in the complaint was "unproved, not in some particulars only, but in its entire scope and meaning" so as to amount to a total failure of proof. In this view we are unable to concur. We think the action was clearly one in tort. The gravamen of the complaint was not the failure to carry plaintiff to his destination, but the wilful and malicious kicking and throwing him from the moving car on to the ground, so as to endanger

tort and not for breach of contract.

his life and limb. In other words, the cause of action pleaded is a personal and intentional assault and battery. If committed as alleged, it would be entirely immaterial whether plaintiff was a passenger or a trespasser. If it were the latter, defendant could have no right to put him off the cars while in rapid motion, so as to endanger his life, and would no more be justified, under such circumstances, in ejecting him from the steps than from the interior of the car. The cause of action, both as pleaded and proven, was purely one in tort, and maintainable without reference to any contract relation between the parties. The gist of the action was not the breach of contract, but the assault. Sanford v. Railroad Co., 23 N. Y. 343; Brown v. Railway Co., 54 Wis. 342; Whittaker v. Collins, 34 Minn. 299. We think there was neither a failure of proof nor any material variance between the allegations and the evidence. Order reversed.

Assaults upon Passengers by Servants of Company.-See Fick v. Chicago & N. W. R. Co., ante, 378, and note, 380.

BUCHER

V.

CHESHIRE R. Co. et al.

(125 U. S. 555.)

Passengers-Personal Injuries-Sunday Law-Federal Courts.-The adjudications of the supreme court of Massachusetts, holding that a person engaged in travel on the Sabbath day contrary to the statute of the State, being thus in the act of violating a criminal statute, cannot recover against a corporation upon whose road he travels for the negligence of its servants, establish a local law of that State which will be followed by the Federal courts in actions arising therein.

Same State Court-Nonsuit-Res Adjudicata.-A passenger who was injured while travelling in Massachusetts on the Sabbath brought an action against the company in the State court. The jury found that he was travelling on an errand of necessity or charity, and brought in a verdict in his favor. On appeal, the Massachusetts supreme court held that the facts did not show that the errand was one of necessity or charity, and remanded the case for new trial. The plaintiff then became nonsuit in the State court, and brought a new action in the Federal circuit court. Held, that the character of the errand was properly excluded from the consideration of the jury in the Federal court, having been passed upon and decided in the trial in the State court.

ERROR to the Circuit Court of the United States for the District of Massachusetts.

Action by Theodore P. Bucher against the Cheshire R. Co. and the Fitchburg R. Co. for damages for personal injuries sustained by plaintiff. The plaintiff brings error to review a judgment for the defendants.

A. A. Ranney for plaintiff in error.

Chas. A. Welch for defendants in error.

MILLER, J.-This is a writ of error to the circuit court of the United States for the district of Massachusetts. The plaintiff in error was plaintiff in that court, and Case stated. sought to recover of the defendants for injuries which he sustained by reason of their negligence while travelling upon their roads. The court on the trial substantially instructed the jury that the plaintiff could not recover because the injury complained of occurred while he was travelling upon the Sabbath day, in violation of the law of the State of Massachusetts. A suit between the same parties in regard to the same transaction had been brought in the supreme court of that State, in which, on a trial before a jury, the plaintiff obtained a verdict. This was carried to the court in bank, and was there reversed and sent back for a new trial. The plaintiff then became nonsuit in the State court and brought the present action in the circuit court of the United States.

Massachusetts'

It is important to inquire what was at issue upon the trial in the State court. There the defendant set up the law of the State found in Gen. St. c. 84, § 2, which is as folstatute and de- lows: "Whoever travels on the Lord's day, except cisions. for necessity or charity, shall be punished by a fine not exceeding ten dollars;" and insisted that the plaintiff, being in the act of violating that law at the time the injury occurred, could not recover. On the 15th of May, 1877, after the plaintiff was injured, the legislature of Massachusetts passed a statute declaring that this prohibition against travelling on the Lord's day should not constitute a defence to an action against a common carrier of passengers for any tort or injury suffered by the person so travelling. St. Mass. 1877, c. 232. The supreme court of that State had decided previous to this, in Stanton v. Railroad Co., 14 Allen, 485, a similar case, that the plaintiff, being engaged in a violation of law, without which he would not have received the injury sued for, could not obtain redress in a court of justice. Also, in Bosworth v. Swansey, 10 Metc. 363, and in Jones v. Andover, 10 Allen, 18. In the trial of the case now under consideration, before the

jury in the State court, the plaintiff does not seem to have controverted the general doctrine thus declared, Reasons for but insisted that the present case did not come the case not within the statute, because, first, the act of May coming within 15, 1877, had declared that travelling on Sunday the statute. should no longer be a defence to actions for injuries suffered by reason of the negligence of carriers of passengers, although this statute was passed after the accident occurred upon which the right of action was founded; and second, that at the time he was injured he was, within the meaning of the statute, travelling upon an errand of charity or necessity, specially excepted from its provisions. The court below sustained both of these propositions of the plaintiff, and the court in bank reversed the trial court upon both of them. It held that the act of May 15, 1877, did not govern a case where the injury had occurred before its passage; that it was not retroactive; and also held that the facts set out in the bill of exceptions did not show that the plaintiff was travelling at the time of the accident either from necessity or for charity. It may be as well to state here that the facts found in the bill of exceptions relating to this latter question, as it was presented before the supreme court of Massachusetts, were identical with those appearing in the bill of exceptions of the case now before us, being in both cases the plaintiff's own statement of his reasons for travelling on that day.

cessity for

Upon the trial in the circuit court of the United States the judge was requested by the plaintiff to charge the jury that the circumstances detailed in the testimony of plaintiff Refusal of Fedand found in the bill of exceptions concerning the eral court to illness of his sister in Minnesota, of which he had consider nereceived knowledge by letter, and had replied that travel. he would meet her in Chicago at a certain time, and that, having been delayed by accidental circumstances, the travel on Sunday, when he was injured, became necessary to enable him to fulfil that promise, were sufficient to be submitted to the jury in order that they might pass upon the question of whether or not this act of travelling on the Lord's day was a work of necessity or charity. This the court declined to do, saying that the same question having been submitted to the jury in the trial in the State court, and having been passed upon by the supreme court of the State, he did not consider that there was evidence sufficient to go to the jury upon that subject. This is one of the assignments of error now before us, and upon this point we are of opinion that the court below ruled correctly. It is not a matter of estoppel which bound the parties in the court below, because there was no judgment entered in the case in which the ruling of the State court was