un.

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 thereUpon 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 judg ment 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, unquestioned, 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

conductor can lawfully eject the holder if he refuses to pay another fare. This line of cases insists that it is the duty of the passenger under such circumstances to pay the fare demanded or peaceably leave the car, and impliedly, at least, deny his right to make any resistance, In most of these cases no forcible resistance was offered, and the principal question before the court was whether the expulsion was a breach of the contract of passage. But the rules laid down in reaching this conclusion bear directly upon that branch of our topic now being considered, and the cases will be found collated and discussed in the other notes of this series, heretofore mentioned as proper to be examined in connection with this note. There is one case, however, in this class-Bradshaw v. South Boston R. R., 135 Mass. 407, 46 Am. Rep. 481-which we note, because it is a leading case, and presents fairly the line of reasoning upon which all of the decisions of this class rest; and the question of forcible resistance seems also to have been raised. The controversy in this case arose over a defective street-car transfer which had been erroneously given to the passenger by the conductor of the original line. The second conductor refused to accept it, although he was fully informed that the mistake was due to the negligence of the other conductor. Upon refusal of the passenger to pay additional fare, he was forcibly expelled. It was held that the passenger could not recover damages for the expulsion. Said the court: "It is no great hardship upon the passenger to put upon him the duty of seeing to it, in the first instance, that he receives and presents to the conductor the proper ticket or check; or, if he fails to do this, to leave him to his remedy against the company for a breach of its contract. Otherwise the conductor must investigate and determine the question, as best b can, while the car is on its passage. . . . . A wrongful decision in favor of the passenger would usually leave the company without remedy for the fare. . . . . A wrong decision against the passenger, on the other hand, would subject the company to liability in an action at law, and perhaps with substantial damages. . It is a reasonable practice to require a passenger to pay his fare, or to show a ticket, check or pass; and, in view of the difficulties above alluded to, it would be unreasonable to hold that a passenger, without such evidence of his right to be carried, might forcibly retain his seat in a car, upon his mere statement that he is entitled to a passage. If the company has agreed to furnish him with a proper ticket, and has failed to do so, he is not at liberty to assert and maintain by force his rights under that contract; but he is bound to yield, for the time being, to the reasonable practice and requirements of the company, and enforce his rights in a more appropriate way. It is easy to perceive that, in a moment of irritation or excitement, it may be unpleasant to a passenger who has once paid to submit to an additional exaction. But unless the law holds him to do this, there arises at once a conflict of rights. His right to transportation is no greater than the right and duty of the conductor to enforce reasonable rules, and to conform to reasonable and settled customs and practices, in

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order to prevent the company from being defrauded; and a forcible collision might ensue. The two supposed rights are in fact inconsistent with each other. If the passenger has an absolute right to be carried, the conductor can have no right to require the production of a ticket or the payment of fare. It is more reasonable to hold that; for the time being, the passenger must bear the burden which results from his failure to have a proper ticket." It will be seen from the above quotation that the line of cases which deny the right of a passenger to resist expulsion when his ticket is defective, place their ruling upon the ground that the passenger is not rightfully on the car, and that, therefore, his expulsion, upon refusal to pay fare, is not wrongful. But there are cases which, while not according to the ticket such conclusiveness of the holder's right to transportation, still insist that, even though the expulsion be wrongful, the passenger is not entitled to maintain his rights by force. This rule seems to prevail in Illinois and Kansas, and has been upheld by some of the federal courts. In Pennsylvania R. R. Co. v. Connell, 112 Ill. 295, 54 Am. Rep. 238, the passenger had a coupon ticket sold to him by one railroad and good for passage over several connecting lines. The conductor on one of the connecting lines, acting under instructions from his superior, refused to accept the coupon over his line, and upon refusal of the passenger to pay fare rejected him by force. The trial court directed the jury that the plaintiff was entitled to recover compensation for the injuries and bodily pain resulting from being forcibly ejected. This was held erroneous. Said Justice Craig, for the supreme court: "If it be true that appellee, by virtue of his ticket, was entitled to be carried over appellant's road, the question presented is, whether he can recover damages for being forcibly expelled from the train, or was it his duty, when notified by the conductor that he would not receive the ticket, to pay his fare under protest, or leave the train and hold the company responsible for the expulsion, without compelling the conductor to resort to force . . ; can he recover for the force used by the conductor, which he by his own act induced the conductor to resort to in order to put him off the train?

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. . We perceive no ground upon which he can recover for personal injuries received, unless the expulsion was malicious or wanton. When the conductor demanded that appellee should pay fare or leave the train, he would have been justified in refusing to pay fare, and in leaving the train on the command of the conductor, and had he done so he would have received no personal injuries, . . . . but when he refused to leave the train, and thus compelled the conductor to resort to force, he cannot recover for an injury which he voluntarily brought upon himself. . . . . And when appellee was notified by the conductor that his ticket was not good, and would not be received, it was his duty to leave the train in a peaceable manner and hold the company responsible for the consequences, rather than resist or undertake to retain his place on the train by force. A train crowded with passengers, often women and children,-is no place for a quarrel or a fight between a conductor and a passenger, and it would be unwise

and dangerous to the traveling public, to adopt any rule which might encourage a resort to violence on a train of cars." We quite agree with the learned justice that "a train crowded with passengers is no place for a quarrel," but we do not perceive why the duty of avoiding it should be placed entirely upon a passenger who is entitled to be carried, rather than upon the company which invites the difficulty by denying him his lawful right unless he submits to extortion. The principle announced in the Connell case, just quoted, was later applied by the Illinois court of appeals in North Chicago St. R. R. Co. v. Olds, 40 Ill. App. 421, where a passenger in a street-car sought to recover damages for injuries received in being ejected against his resistance. The expulsion in this case was claimed to have been made because the passenger was drunk. The evidence showed that he was not "objectionably so." It was held that whether rightly or wrongly on the car plaintiff could not enforce his rights vi et armis. "A party will be entitled to quite as much damage for any wrong or injury quietly endured, as if violently resisted; indeed, the policy of the law ought to be to award him a higher measure of damages. Whatever personal injuries may result from his violence, should be attributed to his own want of subordination, for which the law will afford him no redress." So, too, in Chicago Union Traction Co. v. Brethauer, 125 Ill. App. 204 (affirmed 223 Ill. 521, 114 Am. St. Rep. 352, 79 N. E. 287), the correctness of the rule that a passenger about to be unlawfully ejected cannot resist, but must pay fare or peaceably leave the car, is conceded. In Atchison etc. R. R. Co. v. Gants, 38 Kan. 608, 5 Am. St. Rep. 780, 17 Pac. 54, appellee had been informed by the agent who sold him a ticket that he could take a certain train for his place of destination. Appellee took the train named by the agent, but was informed by the conductor who took up his ticket that the train did not stop at that station, and that he would have to pay fare to the next station beyond where the train stopped, or the train would be stopped and he would be ejected. Appellee refused to pay additional fare, forcibly resisted expulsion, and obtained a judgment for personal injuries sustained in being ejected. The judgment was reversed on appeal, where it was held that appellee had no right to resort to force to secure his legal demands. Said Chief Justice Horton: "By resisting to the utmost of his power and ability, Gants invited force; and he ought not to complain of the force used if there was no intention on the part of the conductor or his assistants to commit unnecessary injury." In Hall v. Memphis & Charleston R. Co., 9 Fed. 585, it was held that a passenger having money with which to pay fare demanded by the conductor, it was his duty to have paid it, irrespective of his right of carriage under his ticket, and that if he refused to do so, and was forcibly ejected, he could not recover for injuries resulting from his resistance to such ejection. This case probably denies more strongly than any of the others the right of a passenger to forcibly resist wrongful ejection. Judge Hammond, in delivering his opinion on a motion for a new trial (15 Fed. 57), said: "The conductor is somewhat like

the master of a ship. He has police powers and disciplinary control over the train, and the quiet and comfort of the passengers and their safety are under his protection. He should be obeyed by the passengers, and the common notion that force must be invited to secure legal demands against his unlawful exactions is, in my judgment, erroneous and vicious. All the passenger need do is to express his dissent to the demand made upon him, and he need not require force to be exerted to secure his rights-certainly not to increase his damages- . . . . I fully recognize the feeling of 'a free American citizen' in the face of threatened wrong or insult, but the safety of the ship forbids that he should fight with the master, and imperil the ship and the lives and property she carries. The conductor of a railroad train is not altogether as supreme, perhaps, as the master of a ship; but on analogous principles, that seem to me obvious, it is, I think, the duty of a passenger to avoid resistance beyond mere dissent, and submit to his authority without more than mere protest, unless resistance is necessary to defend himself against impending personal injury."

IV. Conclusion.

The right of a passenger to resist wrongful expulsion seems to be established, provided the resistance extends no further than to show that he does not acquiesce in the unlawful demand of the conductor, and leaves the conveyance under physical compulsion. But it is difficult to deduce, from the above cases, any fixed rule as to whether he can make sufficient resistance to maintain his rights, without violating the well-settled principle of law, that a party who is subjected to an injury must use such means as he reasonably may to prevent an enhancement of the damages which will naturally flow from the injury. The arguments set forth in the conflicting opinions, both pro and con, indicate a fixedness of opinion on the part of the different judicial minds which does not conduce to the hope that the important question discussed in this note will soon be settled by any uniform line of decisions.