table or probable. Certainly the conductor in charge of the vehicle was not bound to wait until some overt act of violence, profaneness or other misconduct had been committed, to the inconvenience or annoyance of other passengers, before exercising his authority to exclude or expel the offender. The right and power of the defendants and their servants to prevent the occurrence of improper and disorderly conduct in a public vehicle is quite as essential and important as the authority to stop a disturbance or repress acts of violence or breaches of decorum after they have been committed, and the mischief of annoyance and disturbance have been done. Indeed, if the rule laid down. at the trial be correct, then it would follow that passengers in public vehicles must be subjected to a certain amount or degree of discomfort or insult from evil-disposed persons before the right to expel them would accrue to a carrier or his servant. There would be no authority to restrain or prevent profaneness, indecency, or other branches of decorum in speech or behavior, until it had continued long enough to become manifest to the eye or ears of other passengers. It is obvious that any such restriction on the operation of the rule of law would greatly diminish its value."

The general law stated in this opinion is well established; those who are engaged in serving the public may well justify themselves for refusing to serve persons so intoxicated as to be dangerous or obnoxious to the others who are being served at the same time. It is not the mere fact of intoxication that disables the person from requiring service; it is the fact that he is obnoxious to the others. Therefore the mere fact that he has been drinking is not enough; he must be shown to be so intoxicated as to be irresponsible. Such intoxicated persons may be refused service at the outset, or they may be refused further service at any time. The same reasons that justify rejection at the outset, if necessary, excuse, it would seem, ejection at any later stage when necessary. But, of course, in the latter case a certain de

gree of care must be observed as to the manner and place of ejection; although according to most of these cases the degree of care required is not very high.

6 United States.-Jencks v. Coleman, 2 Sumn. 221, Fed. Cas. 7,258 (semble), B. & W. 100 (1835).

Alabama.-Johnson v. Louisville & N. R. R., 104 Ala. 241, 16 So. 75, 53 Am. St. Rep. 39 (1894).

District of Columbia.-Converse v. Washington & G. R. R., 2 MacAr. 504 (1876).

Georgia.-Peavey v. Ga. Ry., 81 Ga. 485, 8 S. E. 70, 12 Am. St. Rep. 334 (1888).

Illinois-Chicago City Ry. v. Pelletier, 134 Ill. 120, 24 N. E. 770 (1890). Indiana.-Baltimore, P. & C. R. R. v. McDonald, 68 Ind. 316 (1879); Pittsburg, C. & S. L. Ry. v. Vandyne, 57 Ind. 576, 26 Am. Rep. 68 (1877); Cincinnati, I., St. L. & C. R. R. v. Cooper, 120 Ind. 469, 22 N. E. 340, 16 Am. St. Rep. 334, 6 L. R. A. 241 (1889).

Kansas. Atchison, T. & S. F. R. R. v. Weber, 33 Kan. 543, 6 Pac. 877, 52 Am. Rep. 543 (1885).

Maine.-Robinson v. Rockland Ry., 87 Me. 387, 32 Atl. 994, 29 L. R. A. 530 (1895).

Massachusetts.-Vinton v. Middlesex R. R., 11 Allen, 304, 87 Am. Dec. 714 (1865); Murphy v. Union Ry., 118 Mass. 228 (1875); O'Laughlin v. Boston & Me. R. R., 164 Mass. 139, 41 N. E. 662 (1895); Hudson v. Lynn & B. R. R., 178 Mass. 64, 59 N. E. 647 (1901).

Michigan.-Strand v. Chicago & W. M. Ry., 67 Mich. 380, 34 N. W. 712

(1887).

Missouri.—Eades v. Metropolitan Ry., 43 Mo. App. 536 (1891).

New Hampshire.-Edgerly v. Union St. Ry., 67 N. H. 312, 36 Atl. 558 (1892).

New York.-People v. Caryl, 3 Park Cr. 326 (1857); Milliman v. New York C. & H. R. R. R., 66 N. Y. 642 (1876); Freedon v. New York C. & H. R. R. R., 24 App. Div. 306, 48 N. Y. Supp. 584 (1897).

Pennsylvania.—McHugh v. Schlosser, 159 Pa. St. 480, 28 Atl. 291, 39 Am. St. Rep. 699, 23 L. R. A. 574 (1894).

Texas.—Missouri Pac. Ry. v. Evans, 71 Tex. 361, 1 L. R. A. 476 (1888). Washington.-Stevenson v. West Seattle Co., 22 Wash. 84, 60 Pac. 51

(1900).

West Virginia.-Fisher v. West Virginia Co., 42 W. Va. 183, 24 S. E. 570, 33 L. R. A. 69 (1896).

242. Exclusion of indecent and profane persons.

In accordance with these principles it is established that indecent or profane persons may be excluded by carriers for the protection of the other passengers.7

And if there is reason to believe that the person if allowed to enter the carrier's vehicle will so obscenely conduct himself as to become a nuisance to the other passengers he may be excluded. Thus it has been held that when a woman is suing a carrier for refusal to receive her as a passenger, and it appears that she was refused because on her application for passage she declined to promise "to behave herself," evidence is admissible "that prior to this the plaintiff, while a passenger upon its boat, had been guilty of gross, obscene and vulgar language and indecent conduct in the presence of other passengers, including ladies; that at times she would conduct herself properly for a part of the voyage, and then become disorderly on other portions of the same voyage; that, if sober going to West Seattle, she almost invariably returned in a state of intoxication." 8

8 243. Exclusion of persons who bring dangerous or obnoxious articles to the vehicle.

The carrier is justified in excluding from the vehicle any person who insists upon bringing into it articles that are dangerous or obnoxious to other passengers. Thus, one may be refused

7 Chicago City Ry. v. Pelletier, 134 Ill. 120, 24 N. E. 770 (1890); Louisville & N. Ry. v. Logan, 88 Ky. 232, 10 S. W. 655, 21 Am. Rep. 332 (1889); Robinson v. Rockland T. & C. S. Ry., 87 Me. 387, 32 Atl. 994, 29 L. R. A. 530 (1895); Vinton v. Middlesex St. Ry., 11 Allen, 304, 87 Am. Dec. 714 (1865); Eads v. Metropolitan St. Ry., 43 Mo. App. 536 (1891); People v. Caryl, 3 Park Cr. (N. Y.) 326 (1857); Atchison, T. & S. F. Ry. v. Wood, 77 S. W. 964 (1903).

8 Stevenson v. West Seattle, L. & I. Co., 22 Wash. 84, 60 Pac. 51 (1900). But see Louisville, N. H. & C. Ry. v. Wolfe, 128 Ind. 347, 27 N. E. 606, 25 Am. St. Rep. 436 (1891).

entrance to a car or boat who has with him two guns with bayonets.9

For the same reason a rule is proper and legal which includes from a passenger-car a person accompanied by a dog 10 or a goat.11

TOPIC C APPLICANT UNDER DISABILITY.

§ 244. How far blind persons may be excluded.

A blind person who, because of his blindness is unable to take care of himself, may be excluded from the carrier's vehicle, since it is outside the carrier's profession to care for helpless persons; but if the blind man is able to care for himself he must be received.1 Thus, in Zachery v. Mobile & Ohio Railroad,2 Mr. Justice Whitefield said: "It is not every sick or crippled or infirm person whom a railroad regulation can exclude, but one so sick or so crippled or so infirm as not to be able to travel without aid. And so it is not every blind person, but one who, though blind, is otherwise incompetent to travel alone on the cars; otherwise, we would be compelled to hold that one suffering from sickness, no matter how slight, or one who had lost an arm or leg, or one, no matter how active physically, and no matter how expert a traveller, if merely blind, could be shut out by such a rule. And this ought not to be, and cannot be sound law. We are asked to hold that a regulation that no blind person whatever, no matter how skillful or expert a traveller he may have been, or may be, and no matter how perfectly qualified in every other respect, may travel on cars unaccompanied, is a reasonable

9 Dowd v. Albany Railway, 47 N. Y. App. Div. 202, 62 N. Y. Supp. 179 (1900). And see Flint v. Transportation Co., 6 Blatch. 158, Fed. Cas. No. 4,873, 34 Conn. 554, 20 Am. Law Rep. 569 (1868).

10 Gregory v. Chicago & Mo. R. R., 100 Iowa, 345, 69 N. W. 532 (1896). 11 Daniel v. New Jersey S. Ry., 64 N. J. Law, 603, 46 Atl. 625 (1900).

1 Zachery v. Mobile & O. R. R., 75 Miss. 751, 23 So. 435, 65 Am. St. Rep. 617, 41 L. R. A. 385 (1898); Illinois Central R. R. v. Smith, 85 Miss. 349, 37 So. 643 (1905).

2 Supra.

rule. This cannot be sound. Each case must depend on its own facts, and the reasonableness of the refusal to sell the blind person a ticket must, on principle, depend, not on a universal, arbitrary, and undiscriminating rule, like this one, but on the capacity to travel unaccompanied of the particular blind person, as shown by the proof on that point in his case."

In Illinois Central Railroad v. Smith, Mr. Justice Truly, after quoting this language, added: "Primarily the affliction of blindness unfits every person for safe travel by railway, if unaccompanied. No blind person without previous experience could possibly accommodate himself to the many exigencies incident to travel by railroad, or guard himself against peril in boarding and alighting from trains; changing from one train to another, or threading his way in safety across the railway tracks at crowded stations. Hence the rule which provides that every blind person is presumed to be, in the absence of proof of experience, unfit to travel alone, is not unreasonable. Nor do we consider such a regulation a hardship upon the persons afflicted with blindness or other disabling physical infirmity. It is rather a safeguard thrown around them for their own protection. Therefore, when a blind person applies to purchase a ticket, being himself unknown to the agent, and that ticket is refused, the carrier is not liable by this act alone to be mulcted in damages; but, as before indicated, if the agent of the carrier knows of his personal knowledge of the competency to travel of the particular person, or if the fact of such ability is made known to him in any manner, and he still persists wantonly and arbitrarily in his refusal to sell the person desiring passage a ticket, the carrier may be made to respond in damages for his oppressive act. And it is the duty of the agent of the carrier to listen to the explanation made by the person desiring to purchase a ticket, and judge of his competency in light of the facts then made known to him."

3 Supra. 4 Accord.

4

Illinois C. Ry. v. Allen (Ky.), 89 S. W. 150 (1905).