a door yard to find his ball or arrow, or to look at a flower in the garden; he is bitten and lacerated by a vicious bull-dog; still he is a trespasser, and if he had kept away would have received no hurt. Nevertheless is not the owner of the dog liable? A person is hunting in the woods of, or crossing a pasture of, his neighbor and is wounded by a concealed gun. Is he in such case remediless because he is there without consent? Or an intoxicated man is lying in the travelled part of a highway; helpless if not unconscious; must I not use care to avoid him? May I say that he has no right to incumber the highway, and therefore carelessly continue my progress regardless of consequences? Or if such man has taken refuge in a field of grass, or hedge of bushes; may the owner of the field, knowing the fact, continue to mow on, or fell trees as if it was not so? Or if the intoxicated man has entered a private lane or by-way, and will be run over if the owner does not stop his team, which is passing through it, must he not stop them? It must be so that an unnecessary injury negligently inflicted in these and kindred cases is wrong and therefore unlawful. If assailed, a man may do what is necessary to defend himself against the assault, but he may not become himself the assailant. He may defend his property, but he may not in doing it make use of unnecessary violence, and cease to use all care as to the injury he inflicts. The duties which men owe to each other in society are mutual and reciprocal, and faulty conduct on the part of another never absolves one from their obligations, though such conduct may materially affect the application of the rule by which this duty is to be determined in the particular instance."

The principles laid down and the illustrations given in the opinion first quoted from are correct and applicable to this case.

In the case of Johnson v. the C., R. I. & P. R. Co., 58 Iowa, 348, the plaintiff was removed from the waiting-room of a railroad station by the agent of the defendant. His shoulder was dislocated either from a fall from the door, out of which the agent pushed him, or by a fall after he landed on the platform. The plaintiff was not in the waiting-room awaiting an outgoing train to take passage, or for any other purpose for which a waiting-room at a station is kept open to the public. He had no right to remain there after being requested by the agent to leave it. He refused the request to leave before any violence was used towards him, and was drunk and disorderly. In the opinion delivered in that case the court said: "The rule that carriers of passengers are liable for the neglect or wrongful acts of their servants or employees does not always depend upon the fact that the carrier owes a duty or is under some obligations to the party injured. When a person is found upon a train who refuses to pay his fare the company owes him no duty, and he may be removed; but if in removing him he is wrongfully injured by personal violence, or by

being thrown from the train when in motion, or the like, he may recover from the company for his injuries. This is no more than the application of the ancient rule that if one person came into the dwelling-house of another without right, after requesting him to depart, and his refusal to comply with the request, he may be removed by gently laying hands upon him and using such force as is reasonably necessary to effect the object. But if excessive force be used, the action is a wrongful assault."

The case of Kline v. C. P. R. R. Co., 37 Cal. 400, was where a boy got upon a morning train as it passed his residence with intent to enjoy a free ride for a short distance. The conductor, either by threatening or pushing, caused him to fall from the train while in motion, and a car wheel to run over his leg, crushing it so as to necessitate amputation. The court held that "the conductor doubtless had the right to eject him by force, if force was necessary, but he was bound to exercise the right with ordinary care and prudence, and he had no right to eject him under circumstances which would endanger his personal safety. If the train was going at a speed which would render it unsafe for him to leave the car, it was the duty of the conductor, if determined to put him off, to stop or slow up sufficiently to allow him to descend in safety, by the exercise of reasonable care and prudence on his part. Although his entry upon the car was a trespass, yet, if it was an accomplished fact, before the conductor attempted to interfere, his entry did not directly conduce to the injury which he sustained, but was, in the sense of the rule under consideration, only its remote cause, and did not, therefore, absolve the conductor from the duty of observing reasonable care and prudence in putting him off the train.

In the case of Wigmire v. Wolf, 52 Iowa, 533, the plaintiff's intestate, Dunn, was an habitual frequenter of the saloon kept by the defendant, who sold him intoxicating liquor, which caused him to drink, and while he was in a state of helpless intoxication, the defendant expelled him from his saloon at a late hour of the night, and Dunn, being thus intoxicated, died of cold and exposure. The court held: "If it should be conceded that Dunn contributed to his death by drinking until he became drunk and unconscious, it would not follow that the plaintiff would not be entitled to recover. If a person lies down upon a railroad track in a state of helpless intoxication, the company will not be justified in running a train over him, if it can be avoided in the exercise of reasonable care. If after the company should be guilty of negligence, whereby the exposed person should be injured, the negligence of the company would be deemed the proximate cause of the injury. So if the defendant negligently subjected Dunn to exposure to his injury, knowing that he was unconscious, or even helpless, the defendant cannot escape liability on account of Dunn's negligence

prior to the wrongful acts, whereby Dunn was subjected to exposure, however great Dunn's negligence may have been in allowing himself to become intoxicated."

That case is so nearly like this that the reasoning which may be applied to one is applicable to the other, and if correct, as we believe it is, it must be regarded decisive of the question involved here.

If in defence of either person or property a party uses more force than is necessary, the defence degenerates into aggression, and the party becomes a wrongdoer, and liable for the unnecessary injury inflicted, whether done maliciously or negligently. The language of the law is molliter manus imposuit.

We do not understand this injunction as applying merely to the character of weapons that may be used in defence of the person, or the degree of propelling force applied in removing a trespasser from a party's premises. But it is intended to apply and govern as to the manner, the circumstances and condition of the parties in which the right to protect one's person or property may be exercised. Thus force might be applied legally to a strong vigorous man, when the danger to the person was imminent, or the value of property or rights threatened or invaded great, which would become wanton cruelty, or gross negligence in the case of a child, imbecile or helpless drunken man.

In this case, if the evidence and the special findings of the jury are to be believed, appellant's agent and employee, if he did not use more actual force than was necessary to expel appellee from the train, did use it under circumstances and at a time when the consequences ordinarily would be as injurious as when in an attempt to remove a trespasser from his dwelling-house the owner should shove him from an upper story, or lead him into a pittfall or well, or when a person is pushed off a fast moving train. In every such case the party would be justly chargeable with negligence, and held liable therefor, the fault or negligence of the person injured being remote, and therefore affording no defence to an action brought for the injury resulting.

Applying these principles, which are in accordance with the authorities and sustained by the necessities of society and the analogies of the law, the instruction of the court which we have quoted was right, and it was not error to overrule the motion to render judgment for appellant upon the findings of the jury. The judgment is affirmed.

Right to Expel Passenger for Non-Payment of Fare. It is well settled that a railroad company may expel from its trains a passenger who declines to pay his fare. Haley v. Chicago, etc., R. Co., 21 Iowa, 15; Chicago, etc., R. Co. v. Boger, 1 Bradw. App. 472; O'Brien v. Boston, etc., R. Co., 15 Gray, 20; Ohio, etc., R. R. Co. v. Muhling, 30 Ill. 9; Great Western R. Co. v. Miller, 19 Mich. 305; Lillis v. St. Louis, etc., R. R. Co., 64 Mo. 464; O'Brien v. N. Y.

Cent. & H. R. R. Co., 1 Am. & Eng. R. R. Cas. 259; Garrett v. Louisville, etc., R. Co., 3 Am. & Eng. R. R. Čas. 416; Skillman v. Cincinnati, etc., R. Co., 13 Am. & Eng. R. R. Cas. 31; Bradshaw v. South Boston R. R. Co.,

supra.

Where Expulsion may Take Place.-Independent of statute, there is no obligation upon the part of a railroad company to expel a passenger who refuses to pay fare at a station. He may be expelled at a point between stations. A wanton injury cannot, however, be inflicted in thus expelling him. Haley. Chicago, etc., R. Co., 21 Iowa, 15; Great Western R. Co. v. Miller, 19 Mich. 305; Fulton v. Grand Trunk R. Co., 17 Upp. Can. Q. B. 428; O'Brien v. New York C. & H. R. R. Co., 1 Am. & Eng. R. R. Cas. 259: Skillman v. Cincinnati, S. & C. R. Co., 13 Am. & Eng. R. R. Cas. 31. Trespassers.-Trespassers may be expelled anywhere, provided no wanton injury is done them. Chicago, etc., R. Co. v. Boger, 1 Bradw. 472; Lillis v. St. Louis, etc., R. Co., 64 Mo. 464.

But see Chicago, etc., R. Co. v. Roberts, 40 Ill. 503; Chicago, etc., R. Co. . Peacock, 48 Ill. 253.

Measure of Damages. As to the measure of damages where a person is ejected from a train at any place other than a regular station. Chicago, etc., R. Co. v. Parks, 18 Ill. 460; Terre Haute R. Co. v. Vanatta, 21 Ill. 188; Chicago, etc., R. Co. v. Flagg, 43 Ill. 364; Chicago, etc., R. Co. v. Roberts, 40 Ill. 503; Chicago, etc., R. Co. v. Peacock, 48 Ill. 253; Illinois, etc., R. Co. v. Johnson, 67 Ill. 312; Illinois, etc., R. Co. v. Cunningham, 67 Ill. 316; Indianapolis, etc., R. Co. v. Milligan, 50 Ind. 392; Toledo, etc., R. Co. v. McDonough, 53 Ind. 289; Quigley v. Central Pac. R. Co., 11 Nev. 350; Graham v. Pacific R. Co., 66 Mo. 536; Huntsman v. Great Western R. Co., 20 Upp. Can. Q. B. 24; L. E. & W. R. Co. v. Fixe, 11 Am. & Eng. R. R. Cas. 109.

HENDERSON

v.

LOUISVILLE, ETC., R. Co.

(Advance Case, U. S. Circuit Court, E. D. Louisiana.

April 9, 1884.)

A railroad company is not responsible for the loss of a parcel of valuables carried in the hand of a passenger, falling out of an open window without any fault of the servants of the company, although upon notice and demand they refused to stop the train to permit the recovery of the lost articles until it arrived at the next usual and advertised station.

O. B. Sansum and E. Sanbourin for plaintiff.
Bayne & Denegre for defendant.

BILLINGS, J.-The petition sets forth that the plaintiff was a passenger upon the defendant's road, in one of its coaches forming a part of one of its regular trains, which was run by a conductor by it appointed, from the town of Pass Christian to the city of New Orleans, and lawfully had with her a "certain leathern bag," which contained money, diamonds and jewelry, in all to the value of $9875, carrying said bag in her hand; that while the plaintiff

was closing a window of the car in which she was riding, to stop a fierce current of air which came in upon her, "said leathern bag and its contents, by some cause unknown to the plaintiff, accidentally fell from her hand through said open window and upon defendant's road;" that thereupon the plaintiff communicated to the said conductor of the defendant's the loss of said bag and the value of its contents, and requested him to stop said train that she might recover the same, which he refused to do, but carried the plaintiff on for a distance of three miles to Bay St. Louis, from which place she dispatched a trusty person back to the place where said bag and its contents were dropped, but before said person could arrive at said place the said bag had been stolen and carried away, whereby the plaintiff lost the value of said contents, for which the plaintiff prays judgment.

The question of law presented is, was the defendant, who was a common carrier of goods and persons, to wit, a railroad company, responsible for the loss of a parcel of valuables carried in the hand of a passenger falling out of an open window without any fault of the carrier, for the reason that upon notice and demand it did not stop a train to recover the parcel until the train arrived at one of the usual and advertised stations.

The propositions of law which the plaintiff must maintain in order to allow an affirmative answer to this question are two. 1. That the plaintiff had a right to take into the car with her the bag and its contents, and to carry the same in her hand or in some other way under her personal supervision and in her personal custody; and 2. That the defendants entered into some further contract with reference to the carriage and safety of the same which involved liability in case of loss or separation without fault on defendant's part, from the plaintiff's possession. The first proposition is correct; the second cannot be maintained. The plaintiff, considering the well-known habits and requirements of passengers in the United States at this day had an undoubted right to take with her her jewelry and money in her journey from her summer to her winter residence. They were in bulk and character such that they could be taken into the car without any inconvenience either to the defendants or the other passengers. Indeed, they were of such bulk and character as to altogether escape observation. But this was simply a permission; there was no obligation, except as connected with the carrying of the plaintiff. If the loss had arisen in consequence of the defendant's failure, diligently and with proper skill to carry the plaintiff, a different question would have arisen. For in that case there would have been a violation of a contract and the sole inquiry would have been as to whether the loss of the valuables carried in the hand could have been grounds for the recovery of damage. But the case shows that the plaintiff was in all things, so far as related to herself, diligently and with proper