and if in doing so he receive injury, he will have no one to blame but himself." Sec. 1091. (§ 594.) Whether due care has been used, a question of fact.-But it does not necessarily follow, as a conclusion of law, that the railway carrier will be liable for the injury which may be sustained by the passenger in being put off while the car is in motion. This, it has been held, is a question for the jury, and not for the court, the inquiry in every such case being whether due and proper care was used in the removal. But it is most unquestionably the duty of such car dangerous to the traveling public to adopt any rule which might encourage a resort to violence on a train of cars. The conductor must have the supervision and control of his train, and a demand on his part for fare should be obeyed, or the passenger should in a peaceable manner leave the train, and seek redress in the courts, where he will find a complete remedy for every indignity offered, and for all damages sustained." 7. Townsend v. The Railroad, 56 N. Y. 295; Murphy v. The Railway, 118 Mass. 228; Railway Co. v. Daniels, 90 Ill. App. 154; McCullen v. Railway Co., 74 N. Y. Supp. 209, 68 App. Div. 269. In the Townsend case, supra, the court, per Grover, J., say that when the conductor of the train tells the passenger in explicit terms that he cannot retain his seat upon that ticket, but must pay fare or leave the car, this amounts to ejection. "He then knows that he cannot proceed upon the ticket taken, but must resort to his remedy the same as though he had been ejected. If, after this notice, he waits for the application of force to remove him, he does so in his own wrong; he invites the use of the force necessary to remove him; and if no more is applied than is necessary to effect the object, he can neither recover against the conductor or company therefor. This is the rule deducible from the analogies of the law. No one has a right to resort to force to compel the performance of a contract made with him by another. He must avail himself of the remedies the law provides in such case. This rule will prevent breaches of the peace instead of producing them; it will leave the company responsible for the wrong done by its servant without aggravating it by a liability to pay thousands of dollars for injuries received by an assault and battery caused by the faithful efforts of its servants to enforce its lawful regulations." 8. Healey v. The Railroad, 28 Ohio St. 23; Murphy v. The Railway, supra. In an action for forcible ejection from a car, it is not competent for a conductor to testify that he did not use more force than was necessary, as that is a ques riers, if their cars be moving at a rate which would make the removal unsafe, either to stop them or slacken their speed to such a degree as that the passenger, even when he had forfeited his right to be carried further, might leave or be put off safely; and any failure to observe such care would evince reckless conduct which would merit the severest animadversion.9 Sec. 1092. Relation of carrier and passenger does not cease on wrongful ejection. If the conductor wrongfully ejects a passenger at a point on the carrier's road, the passenger does not lose his rights as such by being forced from the car; nor does the ejection, after it is accomplished, authorize the conductor to disregard any duty he would have owed the passenger but for the ejection.10 But if, after ejection, the person ejected re-enters the train and is carried to his destination, he receives the full benefit of his contract of carriage, and cannot recover on the contract. Whether he would be entitled to at least nominal damages in an action of tort, if his ejection was in fact wrongful, is another question which would probably be answered in the affirmative.11 17. The treatment of the passenger. Sec. 1093. (§ 595.) The treatment due the passenger.-The passenger is entitled not only to every precaution which can be used by the carrier for his personal safety, but also to respectful treatment from him and his servants. From the moment the relation commences, as has been seen, the passenger is, in tion for the jury. Regner v. Railroad Co., 26 N. Y. Supp. 625, 74 Hun, 202. 9. Lovett v. The Railroad, 9 Allen, 557; Hestonville, etc., R. Co. v. Biddle (Pa. St.), 16 Atl. Rep. 488. In Railroad Co. v. Kid, 29 Ill. App. 353, the conductor's conduct was denominated "not only illegal but reckless" where he forced a passenger off a train moving at the rate of five or six miles an hour at a point one-fourth of a mile from a station. 10. McGhee v. Cashin, 130 Ala. 561, 30 So. Rep. 367. 11. Railroad Co. v. Olsen, 7 Ind. App. 698, 34 N. E. Rep. 531. a great measure, under the protection of the carrier, even from the violent conduct of other passengers, or of strangers who may be temporarily upon his conveyance. But as against the assaults and violence of his servants, the passenger has the right to claim an absolute protection, and the carrier will undoubtedly be held responsible for any unnecessary personal abuse or violence of which they may be guilty in their treatment of the passenger whilst engaged in the discharge of their assigned and appropriate duties, although such abuse may consist in an assault or battery upon the person of the passenger, and may be wholly unauthorized by the carrier and prompted by the vindictive feelings of the servant towards the passenger. And it is undoubtedly well settled law that, when an assault or battery by the carrier's servant occurs upon the carrier's vehicle, the carrier may be held responsible even when the servant has seemingly departed from the line of his duty, and has committed the assault or the personal violence upon the passenger aside from and under circumstances wholly unconnected with the discharge of such duty; and that the fact of his being in the employment of the carrier, and engaged in the prosecution of his business upon his vessel or vehicle, will make the malicious and unauthorized attack of the servant upon the passenger a breach of duty for which the carrier himself may be held liable.12 This rule is as true in respect of carriers by water as in respect of carriers by land.13 12 Railway Co. v. Divinney, 66 Kan. 776, 71 Pac. Rep. 855; Johnson v. Railway Co., 130 Mich. 453, 90 N. W. Rep. 274; Haver v. Railroad Co., 62 N. J. Law 282, 41 Atl. Rep. 916, 72 Am. St. Rep. 647, 43 L. R. A. 84; White v. Railroad Co., 115 N. Car. 631, 20 S. E. Rep. 191, 44 Am. St. Rep. 489; Railroad Co. v. Ray, 101 Tenn. 1, 46 S. W. Rep. 554; Railway Co. v. Johnson, 29 Tex. Civ. App. 184, 68 S. W. Rep. 58; Gillingham v. Railroad Co., 35 W. Va. 588, 14 S. E. Rep. 243, 29 Am. St. Rep. 827, 14 L. R. A. 798. Where a female passenger, while Gulf, etc., Ry. Co. 90 S. W. Rep. 44, citing Hutch. on Carr. 13. Thus a steamboat company is liable in damages to a passenger whom the captain handcuffs Sec. 1094. (§ 596.) Liability of carrier for ill-treatment of passenger-Liable for assaults by brakemen and conductors. Passengers on railroad trains are peculiarly under the control of the carrier's agents, and are practically helpless when compelled to defend themselves against their abuse or assaults. It is consequently necessary to hold a railroad company to a strict accountability for any acts of its servants on a train which tend to injure or humiliate the passenger, even though such acts may be malicious and unauthorized.14 This has been held to be true not only as to conductors15 who are in for alleged failure to pay his fare and who is wrongfully ejected from the boat. Trabing v. Nav. & Imp. Co., 121 Cal. 137, 53 Pac. Rep. 644. So if a steamboat company negligently employs a quarrelsome, violent and fighting crew, and a passenger is injured on that account, without fault on his part, it is no defense that the class of men usually employed on steamboats are of that kind. Memphis & C. Packet Co. v. Pikey, 142 Ind. 304, 40 N. E. Rep. 527. 14. Railroad companies have been held liable in a number of cases where a servant of the company has pushed or thrown a passenger from the train. Railroad Co. v. Kilpatrick, 67 Ark. 47, 54 S. W. Rep. 971; Railroad Co. v. Bostwick, 100 Ga. 96, 27 S. E. Rep. 725; Savannah, etc., R. Co. v. Bryan, 86 Ga. 312, 12 S. E. Rep. 307; Railway Co. v. Gastka, 128 Ill. 613; Dennis v. Railroad Co., 165 Pa. St. 624, 31 Atl. Rep. 52; Sharer v. Paxon, 171 Pa. St. 26, 33 Atl. Rep. 120. But the company is said not to be liable for the malicious and criminal act of an employe, as if he should set in motion uncon trolled an engine upon the track (Mars v. Canal Co., 54 Hun, 625); nor for wanton acts, in West Virginia (Ricketts v. Railway Co., 33 W. Va. 433). 15. Railway Co. v. Fleetwood, 90 Ga. 23, 15 S. E. Rep. 778; Cole v. Railroad Co., 102 Ga. 474, 31 S. E. Rep. 107; Railroad Co. v. Moore, 101 Ga. 684, 28 S. E. Rep. 1000; Savannah, etc., R. Co. v. Bryan, 86 Ga. 312, 12 S. E. Rep. 307; Railway Co. v. Gastka, 128 Ill. 613; Railroad Co. v. Barger, 80 Md. 23, 30 Atl. Rep. 560, 45 Am. St. Rep. 319, 26 L. R. A. 220; Ramsden v. Railroad Co., 104 Mass. 117; Shaefer 1. Railway Co., 98 Mo. App. 445, 72 S. W. Rep. 154; Railway Co. v. Tarkington, 27 Tex. Civ. App. 353, 66 S. W. Rep. 137; Railway Co. v. Gaines (Tex. Civ. App.), 79 S. W. Rep. 1104; Smith v. Railway Co., 48 W. Va. 69, 35 S. E. Rep. 834; Western, etc., R. Co. v. Turner, 72 Ga. 292; Gasway v. Railroad Co., 58 Ga. 216; Illinois Cent. R. Co. v. Sheehan, 29 Ill. App. 90; Railway Co. v. Wood, 113 Ind. 544. In Railway Co. v. Fleetwood, supra, the conductor rudely pulled a passenger to the end of the car and spit in his face. In Cole v. Railroad Co., supra, charge of a train, but also as to brakemen.16 In a leading case upon this subject17 the evidence was that the plaintiff was a passenger in the defendant's railway-car, and in the absence of the conductor surrendered his ticket to a brakeman. The brakeman afterwards approached him, and in language coarse, profane and grossly insulting, denied that he had given him the ticket, calling him a liar, a cheat, shaking his fist in the plaintiff's face, and threatening, if he opened his mouth, to kill him. This abusive language was continued for some minutes in view of many passengers, and was promptly reported to the company's agent, but the brakeman was nevertheless retained in the company's employment. A verdict for a large amount was found against the company. This was approved by the appellate court. "It may be true," it was said, "that, if the carrier's servant wilfully and maliciously assaults a stranger, the master will not be liable; but the law is otherwise when he assaults one of his master's passengers. The carrier's obligation is to carry his passenger safely and properly, and to treat him respectfully; and if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passenger from violence and insult, from. whatever the conductor used opprobrious and abusive language tending to humiliate the passenger. In Railroad Co. v. Moore, supra, a boy was shot in the leg, after leaving the train, by the conductor as the train was moving off. In Railway Co. v. Tarkington, supra, the conductor used harsh and insulting words to a female passenger. 16. Lampkin v. Railroad Co., 106 Ala. 287, 17 So. Rep. 448; McKinley v. Railway Co., 44 Iowa, 314; Railroad Co. v. Henry, 55 Kan. 715, 41 Pac. Rep. 952, 29 L. R. A. 465; Railroad v. Winslow, 27 Ky. L. Rep. 329, 84 S. W. Rep. 1175; Williams v. Gill, 122 N. Car. 967, 29 S. E. Rep. 879; Railroad Co. v. Washington (Tex. Civ. App.), 30 S. W. Rep. 719. So the carrier has been held liable where a brakeman struck a passenger in the face with a lantern because the passenger, who had lost his watch, said he thought the brakeman had it. Chicago, etc., R. Co. v. Flexman, 103 Ill. 546. 17. Goddard v. The Railway, 57 Me. 202. |