sort to unnecessary violence, it will be no defense that the passenger had offended against his rules, and had thereby subjected himself to the carrier's right to expel him; and not only the unnecessary force, but any circumstances of insult or indignity in the manner of his expulsion, may be shown in an action by the passenger.19

Sec. 1085. (§ 591a.) Effect of tender after refusal to pay or show ticket and ejection begun.-The question has frequently arisen whether, after a passenger has refused to pay the fare demanded or to produce his ticket, and the conductor has begun to eject him or has completely ejected him, the passenger may then tender the fare or ticket required and be entitled

224;

19. Knowles v. Railroad Co., 102 N. C. 59; Steamboat Co. v. Brockett, 121 U. S. 637; Jardine v. Cornell, 50 N. J. L. 485; Brown v. Railroad Co., 66 Mo. 588; Philadelphia, etc., R. Co. v. Larkin, 47 Md. 155; Mykleby v. Railway Co., 39 Minn. 54; Coppin v. Braithwaite, 8 Jurist, 875; Moore v. The Railroad, 4 Gray, 465; Holmes v. Wakefield, 12 Allen, 580; Law v. The Railroad, 32 Iowa, 534; Bass v. The Railway, 36 Wis. 450; State v. Ross, 2 Dutcher, Healy v. The Railroad, 28 Ohio St. 23; Hewett v. Swift, 3 Allen, 420; Penn. R. R. v. Vandiver, 42 Penn. St. 365; Seymour v. Greenwood, 7 H. & N. 355; Bayley v. The Railway, L. R. 7 C. P. 415; Kline v. The Railroad, 37 Cal. 400; Evansville, etc., R. Co. v. Gilmore, 1 Ind. App. 468, 27 N. E. Rep. 992; Alabama, etc., R. Co. v. Frazier, 93 Ala. 45, 9 S. Rep. 303; Gulf, etc., Ry. Co. v. Kuenhle (Tex. Civ. App.), 16 S. W. Rep. 177; Railroad Co. v. Holden, 66 Ark. 602, 53 S. W. Rep. 45, citing Hutch. on Carr.; Railroad Co. v. Brown,

2 Kan. App. 604, 42 Pac. Rep. 588; Randall v. Railway Co., 102 Mo. App. 342, 76 S. W. Rep. 493; Railway Co. v. James, 82 Tex. 306, 18 S. W. Rep. 589, 15 L. R. A. 347; Wright v. Railroad Co., 21 R. I. 554, 45 Atl. Rep. 548; Klenk v. Railroad Co., 27 Utah, 428, 76 Pac. Rep. 214.

If a white passenger is wrongfully ejected from a train, the fact that a colored train hand was called upon to assist in so doing will not make the company liable for greater damage than should be recovered if the train hand had been a white man. Railroad Co. v. Strickland, 90 Ga. 562, 16 S. E. Rep. 352.

If a passenger is unlawfully in a car reserved for whites and is ejected therefrom by another passenger, and excessive and unnecessary force is used and such passenger is aided and abetted in the use of such force by the conductor, the carrier will be liable for the injury inflicted. Railway Co. v. Miller, 9 Tex. Civ. App. 104, 28 S. W. Rep. 233.

to continue his journey upon that train. Upon this question the cases are not in harmony, but the prevailing rule, and the one supported by the better reasons, is that even though he may once have refused to pay his fare or show his ticket, he may, at any time before the process of ejection is begun, comply with the demand and continue his journey on that train;20 but that where he so refuses and persists in his refusal, after being accorded reasonable time and opportunity to comply, until the conductor has the right and it is his duty to eject him, and the conductor has begun the process of ejection either by stopping the train or applying force to the passenger when necessary, the passenger thereupon forfeits his rights as a passenger, and his ejection may be completed even though he may thereafter tender the performance demanded.21 The reason

20. A mere willingness to pay, unaccompanied by a move or act calculated to suggest to the conductor his desire to do so, is not sufficient to place the conductor in the wrong in ejecting the passenger from the train. Railway Co. v. James, 82 Tex. 306, 18 S. W. Rep. 589, 15 L. R. A. 347.

The courts in Missouri make a distinction between cases in which there is a mere offer to pay fare after an ejection has begun, and cases in which there is an actual tender of the money. They incline to the rule that the conductor should receive the passenger's fare if the same is actually tendered during the process of ejection. Holt v. Railway Co., 174 Mo. 524, 74 S. W. Rep. 631; s. c. 87 Mo. App. 203.

21. Pease v. Railroad Co., 101 N. Y. 367; O'Brien v. Railroad Co., 80 N. Y. 236; Hibbard v. Railroad Co., 15 N. Y. 455; Atchison, etc., R. Co. v. Dwelle, 44 Kans. 394, 24 Pac. Rep. 500; Pickens v. Railroad Co., 104 N. C. 312; Clark v. Rail

road Co., 91 N. C. 506; Hoffbauer v. Railroad Co., 52 Iowa, 344; State v. Campbell, 32 N. J. L. 309; Cincinnati, etc., R. Co. v. Skillman, 39 Ohio St. 444; Louisville, etc., R. Co. v. Harris, 9 Lea, 180; Bland v. Railroad Co., 55 Cal. 570; Railroad Co. v. Bauer, 66 Ill. App. 124; Behr v. Railroad Co., 74 N. Y. Supp. 1007, 69 App. Div. 416; Garrison v. Electric Co., 97 Md. 347, 55 Atl. Rep. 371; Railway Co. v. Turner (Tex. Civ. App.), 23 S. W. Rep. 83.

Whenever a passenger refuses to accede to a just and lawful demand made upon him by the conductor for the payment of his fare, after being allowed a reasonable opportunity to comply, he thereby renounces his right to the position and privileges of a passenger, and subjects himself to expulsion fron the train. If he changes his mind, and tenders the fare before anything is done towards bringing the train to a stop in order to eject him, his refusal will be retracted in time. and his right to remain

assigned in support of the rule is that if one passenger might, by his unjustifiable conduct, delay the train to put him off, another might do the same thing, thus producing the utmost irregularity in the running of the trains and jeopardizing the safety of the carrier's property and the lives of other passengers. As this reason would not exist when the train has stopped at a regular station, the rule has been held not to apply in that event.22

When before refusal to perform, he has already been carried part way upon his journey, the passenger cannot escape ejection by tendering only the fare for the remainder of the journey,23 nor can he continue his journey by buying a ticket for the remainder of the way.24

But the rule justifying the refusal to accept a tender after

and be carried will stand unaffected. If he higgles and hesitates until he becomes a proper subject for ejection, and until steps have been taken to that end, he is too late. Any rule which would allow any passenger to play fast and loose with the conductor would allow all the passengers to do so, and a train might thus be kept halting and alternating between running at ordinary speed and stopping throughout the whole of its journey. Railroad Co. v. Asmore, 88 Ga. 529, 15 S. E. Rep. 13, 16 L. R. A. 53. Overruling, insofar as it is contrary to the above rule, Railroad Co. v. Mix, 68 Ga. 572, where the court approve the rule that a tender must be accepted even after the passenger is fully ejected, if made before the train actually starts again, but not afterwards; but the conductor had been hasty in ejecting him in that case.

22. Railroad Co. v. Hill, 110 Tenn. 396, 75 S. W. Rep. 963; Railroad Co. v. Wright, 68 Ind. 586, 34

Am. Rep. 277; O'Brien v. Railroad Co., 80 N. Y. 236.

See also, Wardwell v. Railway Co., 46 Minn. 514, 49 N. W. 206, 24 Am. St. Rep. 246, 13 L. R. A. 596, holding that this rule applies to cases where the carrier is not permitted by statute to eject persons from its passenger trains, except at a regular stopping place. But see, contra, Gulf, etc., Ry. Co. v. Riney, Tex. Civ. App. ―, 92 S. W. Rep. 54, which holds that the ejection of the passenger at an intermediate station and his immediate re-entrance constitute but an interruption of the continuous passage undertaken in the first instance, and that the conductor is not obliged to accept him again until fare for the full journey is paid.

23. Pennington v. Railroad Co., 62 Md. 95; Gulf, etc., Ry. Co. v. Riney, Tex. Civ. App.

92 S. W. Rep. 54.

24. Stone v. Railway Co., 47 Iowa, 82; Swan v. Railroad Co., 132 Mass. 116; Manning v. Rail

stopping must be confined to those cases in which the refusal was wilful,25 and to justify the ejection in any case, a demand of performance must first have been made upon the passenger and a reasonable time allowed him within which to comply.26

So a tender of fare by a third person for the passenger, made before the train has stopped, must, where the passenger quietly submits to the ejection, be accepted.27 But where the passenger wilfully and violently refuses to pay his fare, and the process of ejection has begun, a subsequent tender of fare by such third person need not be accepted.28

Sec. 1086. (§ 591b.) Duty of carrier to tender back fare received before ejection.—If a passenger is ejected from the

way Co. (Ala.), 11 So. Rep. 8, 36 Am. St. Rep. 225. The contrary was held, however, where a passenger who had paid his fare and procured his ticket rode part way upon it and then stopped over without a permit, and, on resuming his journey, being refused carriage, got off at the first station and bought a new ticket for the remainder of the journey. Ward v. Railroad Co., 56 Hun, 268.

25. Louisville, etc., R. Co. v. Harris, 9 Lea, 180; Texas, etc., Ry. Co. v. Bond, 62 Tex. 442; Harrison v. Fink, 42 Fed. 787.

Where a passenger who was subject to chronic drowsiness fell asleep before his ticket had been called for, and the conductor ejected him from the train, the passenger not waking until he was partially out of the car, it was held that the conductor should have received his ticket when offered as soon as the passenger became sufficiently awake to understand what was wanted. Ferguson v. Railroad Co., 98 Mich. 533, 57 N. W. Rep. 801.

26. Southern Pac. Co. v. Patterson, 7 Tex. Civ. App. 451, 27 S. W. Rep. 194, citing Hutch. on Carr.; Texas, etc., Ry. Co. v. Bond, 62 Tex. 442; Curl v. Railway Co., 63 Iowa, 417. In this case the passenger lacked a dime, which another passenger was about to loan him, as the conductor knew, but it was not produced until just after the bell was rung, whereupon the passenger was ejected and the money refused.

27. Missouri, etc., Ry. Co. v. Smith, Ind. Terr. 89 S. W. Rep. 668; Ham v. Canal Co., 142 Pa. 617, 21 Atl. Rep. 1012; Railroad Co. v. Garrett, 8 Lea, 438, 41 Am. Rep. 640; Railroad Co. v. Norris, 17 Ind. App. 189, 46 N. E. Rep. 554, 60 Am. St. Rep. 166; Randall v. Railway Co., 102 Mo. App. 342, 76 S. W. Rep. 493; Clark v. Railway Co., 91 N. Car. 506, 49 Am. Rep. 647; Hoffbauer v. Railway Co., 52 Iowa, 342, 3 N. W. Rep. 121, 35 Am. St. Rep. 278. 28. Missouri, etc., Ry. Co. v. Smith, Ind. Terr. 89 S. W. Rep. 668.

train, it is the duty of the conductor to return the unearned portion of his fare, or its equivalent, before he leaves the train. That duty is a condition precedent to the right of ejection, and, for a failure in that regard, the carrier will be liable in damages notwithstanding the passenger makes no demand for its return before leaving the train.29 Thus a passenger bought a ticket in good faith, relying upon the ticket agent's assurance that he might stop over upon it, which he did, although, in fact, the ticket gave no such right, a custom to that effect having been recently terminated. Upon attempting to continue his journey upon it, the conductor refused to accept the ticket and expelled the passenger from the train for refusing to pay a second fare, no allowance or rebate being offered for the amount already paid for the ticket. Said the court, in Maine :30 "The conductor had proof from the ticket that the fare had been paid for the whole distance, and from the statements of the plaintiff, which he had no reason to doubt, and which were confirmed by the custom so lately abrogated, that he had paid it upon the representations of the agent that the ticket would carry him through. If, under these circumstances, the company, through the conductor, would repudiate or deny the contract, the least they could do would be to pay back the surplus money that they had received or deduct it from the fare claimed, neither of which was done or offered to be done, and this they were legally bound to do before refusing to execute the contract made by their agent even if they were not bound by it.'

931

So a passenger went on board the train without a ticket and paid the ticket fare, but refused to pay the extra rate required when paid on the train. He was thereupon put off and

29. Wardwell v. Railway Co., 46 Minn. 514, 49 N. W. Rep. 206, 24 Am. St. Rep. 246, 13 L. R. A. 596; Braun v. Railway Co., 79 Minn. 404, 82 N. W. Rep. 675, 984, 79 Am. St. Rep. 497, 49 L. R. A. 319; Bland v. Southern Pacific Co., 55 Cal. 573, 36 Am. Rep. 50.

The court refused to pass upon this question in Railroad Co. v. Mayo, 4 Ind. App. 413, 30 N. E. Rep. 1106.

30. Burnham v. Railroad Co., 63 Me. 298.

31. Citing Cheney v. Railroad Co., 11 Metc. 121.