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practiced upon him by the servants of the defendant until forbearance had ceased to be a virtue. In each preceding

case he had been assured by the managing officers of the road that he was right in his demands, and that the rule which he was informed was in operation should be observed. Nothing less than substantial damages would seem likely to compel the company to see that its regulations should be obeyed by its servants. The plaintiff's counsel has cited a number of cases in which larger verdicts have been sustained in no more aggravated cases. Among them are Finch v. Northern Pac. R. Co., 47 Minn. 36, 49 N. W. 329; Chicago etc. R. Co. v. Holdridge, 118 Ind. 281, 20 N. E. 837; Hardenbergh v. St. Paul etc. Ry. Co., 41 Minn. 200, 42 N. W. 933; Lake Shore etc. R. Co. v. Teed, 2 Ohio Dec. 662.

Our conclusion, upon the whole case, is that the exceptions must be overruled and the cause remanded to the superior court for judgment on the verdict; and it is so ordered.


I. Scope, 727.
II. Right to Forcibly Resist-In General, 728.
III. Illustration.

a. Where Right to Resist is Upheld, 729.

b. Where Right to Resist is Denied, 731. IV. Conclusion, 735.

I. Scope. Our discussion in this note is limited strictly to the subject indicated by the title, and no cases are reviewed except those where the exact question under consideration was before the court. There are a great many cases which sustain the doctrine that it is not the duty of the passenger to pay fare wrongfully demanded in order to avoid ejection, but that he may stand upon his rights and refuse to leave the car, and recover damages from the carrier if his refusal is followed by expulsion. The resistance in these cases, however, extended no further than a refusal to leave the car, and the real ques. tion involved was as to the right to recover damages for the breach of contract of carriage, and not for any injuries sustained by reason of forcible expulsion. A discussion of the rule announced in this class of cases will be found in the note appended to St. Louis etc. Ry, Co. v. White, 122 Am. St. Rep. 638, and as some of these cases, at least, may, by analogy, seem to justify the right of forcible resistance, the reader should consult that note in connection with this. The note appended to Thompson v. Gardner etc. St. Ry. Co., 118 Am. St. Rep. 461, will also throw some light on the topic here considered, when the carrier concerned is a street railway company. The reasonableness of rules and regulations of carriers, as justifying the expulsion of passengers who fail to comply with them, is discussed in the vote appended to Commonwealth v. Powers, 41 Am. Dec. 471, and as the right of a passenger to resist such expulsion is also there considered, that note will be found of assistance to those interested in the subject of the present note.

II. Right to Forcibly Resist-In General. There is no conflict of authority over the rule supported in the principal case of Arnold v. Rhode Island Co., 28 R. I. 118, ante, p. 721, 66 Atl. 60, that where a passenger is lawfully on the conveyance of a common carrier, and is entitled to transportation as evidenced by the token which has been furnished him by the carrier, he is not bound to submit to wrongful expulsion, upon refusing to pay another fare, but may make such resistance as is necessary to maintain his rights, and recover for any injuries caused by the violence used in his expulsion. This rule simply applies to carriers the fundamental principle that every person has the right to forcibly resist an illegal assault. But it not infrequently happens that, through the negligence or mistake of some agent or servant of the carrier, one who has paid for his right of passage is given a ticket which is defective, and which for that reason the conductor refuses to accept. In such cases, is the face of the ticket to be treated as the sole criterion of the holder's right to transportation, or can be rely on the acts and statements of the agent or servant of the carrier who furnished him the ticket, so as to justify him in forcibly resisting any attempt to exepl him for refusing to pay another fare? On this question, there is sharp conflict of judicial opinion. One line of cases holds that the face of the ticket is, as between him and the conductor, the sole criterion of the holder's right of passage, and that it is his duty, if the ticket is defective,' to pay another fare when demanded, or to peaceably leave the car, and that he has no right to resist and increase the damages by causing force to be used in affecting his expulsion. The theory upon which these cases proceed is, that no one has a right to resort to force to compel the performance of a contract, and further, that though the holder of a defective ticket is not at fault, he should peaceably submit to a wrong rather than create a disturbance and possibly endanger the safety of his fellow-passengers. Another line of cases deny the ticket such conclusive force and dignity, and hold that the passenger can rely on the acts and statements of the company's agents or servants, and that when he has acted in good faith and without fault, he has the right to refuse further payment of fare, and offer sufficient resistance to prevent his expulsion, notwithstanding the fact that his ticket is defective. This latter class of cases seems to us founded upon much the better reasoning, namely, that it is the contract, and not the ticket, which gives the right of transportation-that the ticket is simply the evidence of the contract furnished by the carrier, which the holder is not allowed to alter or change, and which he has the right to presume is a faithful expression of the contract as made. The argument that a passenger should quietly submit to a wrongful expulsion rather than create a disturbance and possibly endanger the safety of his fellow. passengers strikes us as an attempt to visit upon the offended the wrong of the offender. However potent such an argument might be ad homine, it can hardly be justified from the standpoint of law. The cases where the exact question considered in this note is directly decided are not numerous, and as the circumstances which gave rise to the decisions vary more or less in each case, the only practical method of determining the general effect of the rulings is by a review of the cases themselves.

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III. Illustration, Where Right to Resist is Upheld.-In Ellsworth v. Chicago etc. Ry. Co., 95 Iowa, 98, 63 N. W. 584, 29 L. R. A. 173, plaintiff had purchased a ticket from the agent of the defendant company, which, under the rules of the company, was good only on the date stamped on the ticket. Through a mistake of the agent, the ticket given plaintiff had been stamped three days earlier than the date of its purchase by plaintiff. The conductor refused to accept the ticket, and, upon plaintiff's refusal to pay full fare demanded, he was forcibly ejected from the train. It was contended on the part of defendant that it was the duty of the plaintiff not to enhance damages by resistance, but that he should have submitted quietly to ejectment, and then seek his damages. The court said: “To say the least, we think he may make any resistance, not amounting to a criminal disturbance of the peace,

and that he is not called upon to submit to a wrongful ejection for the purposes of economizing the damages to be recovered."

In English v. Delaware & H. Canal Co., 66 N. Y. 454, 23 Am. Rep. 69, plaintiff was forcibly ejected from the train for refusing to pay fare demanded by the conductor, plaintiff claiming that he had already paid it. The evidence showed that plaintiff had paid his fare, and was therefore rightfully on the train, but defendant requested a charge that even if the conductor had no right to eject plaintiff, that if the latter resisted to such an extent that extraordinary force became necessary to remove him, and he was injured thereby, he could not recover for such injury. It was held that the requested charge was properly refused. Said the supreme court: "The judge was also clearly right in charging, in response to this proposition, that if the plaintiff was lawfully there, he had a right to resist the conductor in removing him. . . . . When a conductor is in the wrong, the passenger has a right to protect himself against any attempt to remove him, and resistance can lawfully be made to such an extent as may be essential to maintain such a right. Cases occur where the circumstances may imperatively require that the passenger should remain on the train on account of others who may be there in his charge, or where it is indispensable that he should hasten on his journey without delay; and if by reason of the mistaken judgment or willfulness of the conductor he could be expelled when lawfully there, serious injury might follow. The law does not, under such circumstances, place the passenger within the power of the conductor; and when lawfully in the cars be is authorized to vindicate such right to the full extent which might be required for his protection.” So, too, the right of a passenger to lawfully resist with force a wrongful ejection is recognized in Brown v. Memphis & C. R. Co., 7 Fed. 51, but the court was of opinion that no rule should be adopted which would encourage it. In this case, a woman, whom the conductor claimed to be of immoral character, was expelled from the "ladies' coach." She forcibly resisted, and sought to recover damages for the personal injuries she received as a result of the force used to remove her. There being no proof that her conduct on the car was at all objectionable, it was held that the expulsion was wrongful, and the fact that plaintiff forcibly resisted the expulsion was no defense to the action. It was said by the court, however, that “unnecessary resistance may be considered as mitigating the damages." In United States v. Kane, 9 Saw. 614, 19 Fed. 42, it was broadly announced that a person entitled to travel on a rail. way car may go upon the same peaceably and remain there until he arrives at his destination, and if the conductor attempts to put him off on the ground that he is not entitled to travel thereon, he may resist force with force. A case strongly sustaining the right of a passenger to forcibly resist ejection although the ticket may be defective, when the passenger himself is not in fault, is that of New York etc. R. Co. v. Winter's Admr., 143 U. S. 60, 12 Sup. Ct. Rep. 356, 36 L. ed. 71. This case is often referred to, and, coming from the highest judicial tribunal of the country, is entitled to the greatest weight. Here the plaintiff had bought an unlimited ticket, and upon expressing a wish to stop over at an intermediate point, had been told by the ticket agent that he would be allowed to do so upon making such request to the conductor. Plaintiff made the request to the conductor, who told him that he would fix him all right, punched the ticket, and returned it to plaintiff. Plaintiff made the stop and took passage in another train the next day to resume his journey. The conductor on the second train refused to accept the ticket because plaintiff had no “stop-over check” as required by the rules of the de. fendant company, and demanded that plaintiff pay fare or leave the train. Plaintiff refused to do either, and resisted expulsion. The force used in the expulsion resulted in injury to plaintiff's wrist and arm, for which he obtained judgment in damages for ten thousand dollars. It was held that plaintiff was not presumed to know the rules and regulations of the defendant company, and that it was entirely proper for him to rely on the statements of the ticket agent as to his being permitted to stop over on the ticket. Speaking to the question of resistance, Mr. Justice Lamar said: "If he was rightfully on the train as a passenger, he had the right to refuse to be ejected from it, and to make a sufficient resistance to being put off to denote that he was being removed by compulsion and against his will.” There was evidence in this case that more violence and force was used in making the expulsion than was necessary, and this may have influenced the court in upholding a judgment for such a large amount, but plainiff's right to offer resistance is clearly sustained.

In Pittsburgh etc. Ry. Co. v. Russ, 57 Fed. 822, 6 C. C. A. 597, the conductor refused to accept from the passenger a mileage ticket, denying the identity and genuineness of the holder's signature thereun. Upon the passenger's refusal to pay fare, he was forcibly ejected. No greater force was used than was necessary to overcome the resistance offered by the passenger. Plaintiff obtained judgment in the district court for injuries resulting from the force used in his expulsion, but though the right of resistance was recognized, the judgnient was reversed on appeal because of an erroneous charge as to the measure of damages. On the second trial, plaintiff obtained judgment for a still greater amount, and this was upheld on the second appeal by the circuit court of appeals (67 Fed. 662, 14 C. C. A. 612) on the authority of the supreme court in New York etc. R. Co. v. Winter's Admr., 143 U. S. 60, 12 Sup. Ct. Rep. 356, 36 L. ed. 71.

In Louisville etc. Ry. Co. v. Wolfe, 128 Ind. 347, 25 Am. St. Rep. 436, 27 N. E. 606, the action was to recover damages sustained by the plaintiff while forcibly resisting expulsion from defendant's train, The plaintiff had paid his fare, but the conductor believing he had not, demanded the fare, and upon plaintiff's refusal to pay, ejected him with force. A verdict in favor of plaintiff was upheld, the court saying: "The appellee being lawfully in the car, and having paid his fare, he had the right to be carried, and he had the right to make reasonable resistance, as he did, by holding onto the seats; and he was forced loose and taken from the car; and for such damages as he sustained on account of such removal from the car, the appellant is liable."

In addition to the cases above cited, there are, as heretofore stated, a large number of cases collated in the note to St. Louis etc. Ry. Co. v. White, 122 Am. St. Rep. 638, which, while not holding that a passenger has the right to forcibly resist wrongful expulsion, do, in unmeasured terms, condemn the expulsion and advocate the right of the passenger to make passive resistance and recover damages in tort.

In one of these cases the right to make forcible resistance is recognized. “Of course, a party upon a train may resist when, under the circumstances, resistance is necessary for the protection of his life, or to permit probable serious injury; nor can a party be lawfully ejected from a train while in motion so that his being put off would subject him to great peril": Southern Kansas Ry. Co. v. Rice, 38 Kan. 398, 5 Am. St. Rep. 766, 16 Pac. 817. We take this to be a self-evident proposition which hardly needed judicial sanctioncertainly there are no cases opposed to it.

b. Where Right to Resist is Denied. The right of a carrier to eject a mere trespasser on one of its conveyances, or one who is committing a breach of the peace while thereon, is, of course, un. questioned, and whenever the right to lawfully eject exists, it necessarily follows that resistance to such expulsion would not be justified. There are many cases which hold that the face of the ticket is as between him and the conductor the sole criterion of the holder's right to transportation, and that consequently if the ticket is defective, the

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