condition, and, if he cannot, call upon others to supply his deficiencies or to compensate him for losses arising from its absence."

We do not understand that it is the duty of a railroad conductor to render assistance to a passenger laboring under physical infirmities, or that the latter has the right to call upon him for such aid. On the contrary, the rule is that persons unable to take care of themselves must provide proper assistance. New Orleans St. R. Co. v. Statham, 42 Miss., 607; Willetts v. Buffalo R. R. Co., 14 Barb., 505. If, however, the conductor does, in accordance with the request of a disabled passenger, undertake to search for his ticket, he should do so properly and in good faith and with reasonable diligence, but only so far as the passenger himself asks. If the passenger limits his request to a search of one pocket, which he designates, the conductor is not bound to search further. If the conductor, acting in good faith and with reasonable diligence, fail to find the ticket in the pocket indicated by the passenger, neither he nor the company can be held liable for the consequences of the failure. And if the conductor-the ticket being actually in the pocket designated-fail to find it, merely because he did not exercise ordinary or reasonable diligence, neither he nor the company would be liable if the passenger were guilty of equal or greater negligence in the matter. If, for example, the passenger directed the conductor to the wrong pocket, or if the ticket was not actually in the pocket, or if the passenger, in the opinion of the jury, was guilty of equal or greater negligence in not making a more thorough search with the aid of his colored friends then present, there could be no recovery if the conductor acted in good faith. The case would in that view be one of those casualties the consequences of which could not be thrown upon a third party.

The law governing the recovery of damages is now well settled, the difficulty not being in its general principles, but in their application to particular facts. Actual compensation is the ordinary measure of damages, a departure from which is only made in exceptional cases. R. R. Co. v. Smith, 6 Heisk. 174. If the wrong be done by a person acting under a mistaken sense of duty without any wrongful intent, and without any violence or indignity to the aggrieved party, it is a case for compensatory and not exemplary damages. Where the wrongful act is done from a bad motive, or so recklessly as to imply a disregard of social obligations, or where there is negligence so gross as to be equivalent to positive misconduct, exemplary damages may be awarded. The turpitude of defendant's conduct is alone considered to justify the assessment of such damages, and there inust be a wrong intent on his part, or the wrongful execution of an honest intent. Where, therefore, a passenger in a railroad train was wrongfully ejected at a regular station for the non-payment of the fare illegally demanded,

the conductor acting in good faith, under the instructions of the company, the act being done in a peaceable manner without violence, malicious intent or improper conduct, this court held that the passenger would not be entitled to recover exemplary damages, the company itself not being fixed with any malicious intent in the instructions given either to the particular passenger or to the passengers generally. R. R. Co. v. Guinan, 11 Lea, 98; s. c., 13 Am. & Eng. R. R. Cas. 37. The law has been settled in the same way by the court of appeals of New York, and it has been held by that court that where a railroad conductor, acting in what he believed to be the performance of duty to the company, removed a passenger who refused to produce a ticket or to pay fare, although the removal was unlawful, the company was only liable for compensatory damages. And it is said in the same case that a master is not liable in exemplary damages for the act of his servant, when the plaintiff would not have been entitled to recover such damages had the suit been against the servant. Townsend v. R. R. Co., 56 N. Y., 295. The converse of the latter ruling is not, however, equally true, for the employé of a company, as this court has held, may be liable in exemplary damages, while the company would only be liable for compensatory damages. R. R. Co. v. Sternes, 9 Heisk. 52. And the weight of authority seems to be that the company is not to be punished by punitive damages for the mere negligence of the servant, if the company itself be entirely free from blame. Cleghorn v. R. R. Co., 56 N. Y., 44; IIlinois St. R. Co. v. Hammer, 72 Ill., 353. The company may be put in fault and made liable for exemplary damages, by fixing it with malicious intent, or by showing that it has employed a drunken or otherwise incompetent servant who inflicted the injury, or that its servant, in carrying on the company's business in the due course of his employment, intentionally did the wrong act, or performed a duty in such an improper manner as to show a reckless and wanton disregard of the rights of the aggrieved party. If, therefore, in the case before us, the conductor, after yielding to the request of the plaintiff to put his hand in a designated pocket, merely pretended to do so, or performed the act in so grossly negligent a manner as to indicate a wanton disregard of the rights of the passenger, or, to willfully inflict on him an injury, the company would be liable in exemplary damages; the negligence of the plaintiff in that event going only in mitigation of the damages. In any other event, if the company be liable at all, being itself free from fault, the damages would only be compensatory.

This brings us to the point upon which the charge of the trial judge was strongly against the company, and which, no doubt, largely influenced the verdict of the jury, and that is, whether the injuries claimed to have been sustained by the plaintiff by his

night journey from Brentwood to Nashville after his removal from the car, were the proximate result of such removal. Proximate damages, as this court has recently had occasion to say, are the ordinary and natural results of the particular negligence, and therefore such as might have been expected. Jackson v. Nashville & St. L. R. R. Co., 13 Lea. Whether damages are proximate or remote is a question for the jury under proper instructions. And an important element in arriving at a correct conclusion is the conduct of the plaintiff subsequent to the wrong complained of, for it is his duty to see that as little injury follows the act as possible, and if by ordinary care a particular injury may be avoided, he cannot hold the wrong-doer responsible. Thus, where a railroad train failed to stop, as it should have done, at a particular station where the plaintiff was waiting to go on board, and the plaintiff walked home, a distance of several miles, through the cold, whereby he incurred serious sickness, it was held that the act of walking home was as disconnected with the wrong of the company as would have been a loss by robbery. R. R. Co. v. Birney, 71 Ill. 391. A company, in giving its servants instructions to put off a passenger at a regular station, and the servant in executing his duty, can scarcely be held liable for a personal injury to the passenger from his own voluntary act of walking home, or to his destination, no matter how distant or how inclement the weather may be, unless, indeed, the jury, in view of all the circumstances, should find that such a course was inevitable, or such as an ordinarily prudent man would resort to, and as the employés of the company, who were immediately instrumental in the wrongful act, from their knowledge of the circumstances, might reasonably have foreseen. The station at which the plaintiff was removed was the most important station between Franklin and Nashville, a small village with a depot building and thirty or forty houses, many of them occupied by persons of the plaintiff's race and color. The injury, if any, occasioned by the walk to Nashville, would not be the proximate result of the removal from the cars at such a station, unless the plaintiff could show that he made reasonable efforts to avoid the walk and consequent exposure by applying for shelter or conveyance, and failed therein. And if the failure of such efforts was due to the negligence of the plaintiff in not having money with him to pay for the accommodations asked for, it would be for the jury to say whether the walk was not the result of such negligence rather than the proximate consequence of removal from the cars.

Some objections were taken by the defendant to the admission of evidence, but as they were made without assigning any reason therefor, they are not sufficient to put the court below in error. Miller v. State, 12 Lea, 223.

Exception is also taken to the refusal of the trial court, upon the

request of the defendant below, to require the jury to assess the compensatory and exemplary damages separately. In Keeth v. Clark, 4 Lea, 718, the converse of this position was insisted on, and it was assigned as error that the court permitted the jury to return separate findings of fact instead of a general verdict. These are matters intrusted to the discretion of the trial court.

The plaintiff is not precluded of his action by having accepted from the company the fare from Brentwood to Nashville on the morning after his ejection from the cars, and giving a receipt therefor. It does not appear that the transaction was either intended to be or was in fact a settlement of the matters of litigation between the parties.

Judgment reversed and cause remanded for a new trial.

Tennessee Doctrine that Contributory Negligence Goes in Mitigation of Damages. It is well settled in the State of Tennessee that when the negligence of a railroad company is the proximate cause of an injury, the contributory negligence of the person injured does not bar the action, but may be shown in mitigation of damages. Smith v. Nashville, etc., R. Co., 6 Heisk 174; Hill v. Nashville, etc. R. R. Co., 9 Heisk. 823; Railroad v. Welker, 11 Heisk. 383; Louisville & Nashville R. R. Co. v. Connor, 2 Jere Baxt. 302: N. & C. R. Co. v. Smith, 6 Jere Baxt. 174; Nashville & C. R. Co. v. Smith Adm'r, 15 Am. & Eng. R. R. Cas. 469; East Tenn., Va. & Ga. R. R. Co. v. Humphrey's Adm'r, 15 Am. & Eug. R. R. Cas. 472

Passengers must Exhibit and Deliver up Tickets.-A railroad company has an undouted right to make rules requiring passengers to exhibit and deliver up their tickets when requested so to do. Passengers are bound to comply with such rules. State v. Campbell 32 N. J. L. 309; Loring v. Abom, 4 Cush. 608; People v. Caryl, 3 Park. Cr. Cas. 326; Baltimore, etc.. R. Co. v. Blocher, 27 Md. 277; Hibbard v. New York, etc.. R. Co., 15 N. Y. 455; Northern R. Co. v. Page, 22 Barb. 130; Ripley v. New Jersey, etc., Trans. Co., 31 N. J. L. 388; Bennett . Railroad Co.. 7 Phila. 11; Illinois, etc., R. Co. v. Whitemore, 43 Ill 420. Downs v. New York, etc., R Co., 36 Conn. 287; Lane v. East Tenn., Va. & Ga R. R. Co, 2 Am, & Eng. R. R. Cas. 278. But see Maples v. New York, etc., R. Co.. 38 Conn. 557; State v. Thompson 20 N. H 251; Pittsburgh. etc., R. Co. v. Henning, 39 Ind. 509.

Conductor is not Bound to Listen to Passenger's Explanation as to Loss of Ticket.--A conductor is not bound to listen to any explanation on the part of a passenger as to the loss of his ticket. It be fails to produce it, the conductor is clearly justified in expelling him from the train. Pullman Palac Car Co. v. Reed, 75 Ill. 125; Townsend v. New York, etc., R. Co., 56 N. Y. 295; Shelton v. Lake Shore, etc., R. Co.. 29 Ohio St. 214; Weaver v. Rome etc., R. Co., 3 Y. & C. (N. Y.) 270: Chicago, etc.. R. Co. v. Griffin. 68 Ill. 499; Jerome v. Smith. 48 Vt 230: Downs v. New Haven, etc.. R Co., 36 Conn. 287; Frederick v. Marquette, etc.. R. Co., 37 Mich 342.

Duty of Railroad Company does not Shift with Physical Condition of Passenger, The duties of a railroad company to its passengers are not ordinarily varied by the passenger's mental or physical condition. The duty of the railroad company, in general, is to be gauged by its duty to the passenger in average mental and physical condition. Willetts v. Buffal, etc.. R. Co., 14 Barb. 585; Renneker v. South Carolina R. Co., 20 S. C. 218; s. C. 18 Am. & Eng. R. R. Cas. 149

Passenger must be Allowed Reasonable Time Before Expulsion to Find Lost Ticket.-A conductor is not justified in expelling a passenger immediately upon his failure to pay fare or produce a ticket. If the passenger asserts that he has purchased a ticket which has been lost, a reasonable time should be given him in which to make search for it. Maples v. New

York, etc., R. Co., 38 Conn. 557; Curtis v. Grand Trunk R. R. Co., 12 Upp. Can. C. P. 89; South Carolina R. R. Co. v. Nix, 68 Ga. 572; Louisville & N. R. Co. v. Garrett, 8 Lea (Tenn.), 438; Lake Erie & W. R. Co. v. Fire, 11 Am. & Eng. R R. Cas. 109; Hayes v. New York Central R. Co., infra; Clark v. Wilmington & Weldon R. R. Co.. infra.

Measure of Damages in Case of Expulsion of Passenger from Train.— Upon the question as to what injuries are and are not considered the proximate results of an expulsion from a train, so as to entitle the party expelled to recover damages therefor, and particularly as to how far a party expelled may recover for injuries occasioned him by walking to his destination, see Cincinnati, H. & S. R. R. Co. v. Eaton and note, supra, p. 254.

HAYES

v.

NEW YORK CENTRAL & H. R. R. Co.

(Advance Case, New York Supreme Court, October, 1884.)

If a passenger upon a railroad train mislays his ticket, and acting in good faith fails to find it until after the conductor rings the bell for the purpose of stopping the train and ejecting him, in an action against the carrier to recover damages for an unlawful ejection under such circumstances, held, that the omission to find and surrender the ticket or pay his fare before the bell rang is not equivalent to a refusal to do so.

Held further, that the passenger is entitled to a reasonable opportunity to find his ticket if he can, and in default to pay his fare, and it is a question of fact for the jury to determine whether or not such reasonable opportunity was allowed.

APPEAL from judgment entered upon a nonsuit directed at Oneida circuit, May, 1884, and from an order denying a motion for a new trial on the merits. The action is brought to recover damages for ejecting plaintiff from the train on its passage from Utica to Rome on the morning of September 11, 1881. At the close of the evidence defendant moved for a nonsuit, which motion was granted and plaintiff excepted.

Oswald Prentiss Backus, for appellant.

D. M. K. Johnson, for respondent.

MERWIN, J.-Concededly the plaintiff had a ticket from Utica to Rome, that he had purchased the afternoon before. As to what occurred just prior to his ejection, there is a conflict of evidence. On the part of plaintiff, there was evidence tending to show that as the conductor came along and asked the plaintiff for his ticket, he tried to find it and could not; told the conductor he had one and would find it in a minute; felt through his pockets, said to the conductor, "You go through the train, and by the time you come back I will find my ticket; if I don't, I have money to pay my fare;" that the conductor said, "Find your ticket or get off the