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sions, and as to what may be regarded as relevant, it was for the jury to pass upon the weight to be given to his statements in respect thereto, and his credibility. Taking, then, into consideration the presumption and operation of the road from its ownership, and in additton thereto that the stock contract upon which plaintiff shipped his cattle and rode to Portland was drawn in the name of the defendant company, and signed by the agent, as the agent of the defendant, for that company; that the lettering upon its cars and tickets, drawback checks, and other writings, etc., were likewise in the name of the defendant company; together with the testimony of the plaintiff, keeping in mind that the jury are the judges of the credibility of the witnesses,-it would be difficult on this record to assign any just or legal reason to withdraw the case from the jury. Leaving out of view the question of credibility, before a withdrawal of a case from a jury can be justified, the facts of the case should not only be undisputed, but the conclusion to be drawn from them indisputable. But, whether the facts be disputed or undisputed, if different minds may honestly draw different conclusions from them the case should be properly left to the jury. Detroit & M. R. Co. v. Van Steinburg, 17 Mich. 99; Sioux City & P. R. Co. v. Stout, 17 Wall. (U. S.), 657. Upon this point we think there was no error in refusing the motion for nonsuit. But in view of the considerations already expressed the judgment is reversed, and the plaintiff remitted to his remedy in accordance therewith.

Ejection of Passenger who Refuses to Produce Proper Ticket or Pay Fare.The authorities upon this subject are conflicting. The following notes and cases may be consulted: Kansas City, M. & B. R. Co. v. Riley (Miss.), and note, ante p. 476, 479; McKay v. Ohio, R. Co. (W. Va.), 44 Am. & Eng. R. Cas. 395; Butler v. Manchester & L. R. Co. (Eng.), 33 Id. 551, note 556; Louisville & N. R. Co. v. Fleming (Tenn.), 18 Id. 347, note 362; Hays v. New York Cent. R. Co. 18 Id. 363; City, etc., R. Co. v. Brauss, 18 Id. 324; note, 6 Id. 322; International & G. N. R. Co. v. Wilkes (Tex.), 34 Id. 331; Murdock v. Boston & A. R. Co. (Mass.), 21 Id. 268; Memphis, etc., R. Co. v. Benson (Tenn.), 31 Id. 112; Hufford v. Grand Rapids, etc., R. Co. (Mich.), 28 Id. 129.




(Alabama Supreme Court, May 1, 1891.)

Expulsion of Passenger-Refusal to Pay Fare-Indecent Language.- By refusing to pay his fare when rightfully demanded, and by using indecent language, a passenger on a railroad train forfeits all right to remain there, becomes an intruder and may be rightfully expelled.

Same-Place of Expulsion-Intoxicated Passenger.-A railroad company is not liable for the death of a passenger expelled from its train, owing to his being run over by another train after he was ejected, although such passenger was intoxicated, but not sufficient to destroy consciousness, and the place where he was put off, with which he was familiar, was dangerous only to persons going unnecessarily on the track.

APPEAL from Cullman Circuit Court.
Jones & Falkner, for appellants.
W. T. L. Coffer, for appellee.

Passenger properly ex

CLOPTON, J.-Appellee, as administratrix, sues to recover damages for the death of A. W. Johnson, alleged to have been caused by the culpable negligence of the employes of defendants. Plaintiff's intestate having taken passage on a train of defendants, and having pelled. willfully and persistently refused to pay his fare when asked, becoming boisterous, and using profane and very obscene language, clearly shown by the evidence, it be came the duty of the conductor to protect defendants against such intrusion, and the passengers against insult and annoyThe right of the conductor to put him off the train under such circumstances, does not admit of serious question. By refusing to pay his fare when rightfully demanded, and by his gross misconduct, deceased forfeited all right to remain in the car, and assumed the position of an intruder. The conductor was not required to have consideration for his convenience, and was authorized to stop the train and put him off at any point on the railroad, having reasonable regard for his personal safety. The company owed him no duty other than the duty it owes to any trespasser,-not to inflict intentional, reckless, or wanton injury. In exercising the right of expulsion, unnecessary force must not be used, nor must it be exercised at such time, place, and under such circumstances that serious injury will probably and naturally result;

Time and place of expulsion.

for, if it ensues, this is the equivalent of intentional reckless, or wanton injury. Subject to these limitations and restrictions, the time, place, and circumstances are left in the discretion and judgment of the conductor. Wyman v. Northern Pac. R. Co., 34 Minn. 210, 22 Am. & Eng. R. Cas. 402; Atchison, T. & S. F. R. Co. v. Gants, 38 Kan. 608, 34 Am. & Eng. R. Cas. 290; Great Western R. Co. v. Miller, 19 Mich. 305: McClure v. Philadelphia, etc. R. Co., 34 Md. 532; Hutch. Carr. § 590; Ror. R. R. 960; Memphis & C. R. Co. v. Wo mack, 84 Ala. 149, 37 Am. & Eng. R. Cas. 308; Louisville & N. R. Co. v. Black, 89 Ala. 313, 45 Am. & Eng. R. Cas. 38. No right of recovery is or can be claimed under the original complaint, which proceeds on the theory that plaintiff's intestate was a passenger. The amended complaint, by the statement that his fare was demanded, and that he neglected or refused to pay it, impliedly conceded the consequent right to remove him from the train, and bases the liability of the defendants on the averments that the conductor put him off at a time and place and under circumstances seriously endangering his safety, and exposing him to imminent peril of life or limb from passing trains, and that he was run over and killed by one of defendant's trains. The time was about 6 o'clock in the evening, dark and raining; the place at or near the entrance to a cut from 200 to 250 yards long, about one mile from Wilhite, a station which the train had just left, also from the home of the deceased. On the right is a mountain or high hill, and on the left a creek, about 12 feet below and 30 or more feet from the railroad, but sufficient space on each side of the road to enable a person to avoid injury by passing trains. Between the cut and Wilhite are a trestle and two stock gaps. Deceased was familiar with the locality and the cut. He was intoxicated, but not so drunk as to be unconscious or stupefied; had the use of his mental and phys ical faculties. There was nothing in his manner to indicate to the conductor that he could not or would not avoid the danger of a passing train. A train was due about 30 minutes thereafter, and two others passed during the night. His body was discovered the next morning on the opposite side of the track, a short distance from where he was put off, badly mangled. He was not injured while being ejected, or by the train from which he was removed, or by exposure to any perils incident or peculiar to the time or place, disconnected from the passing of other trains. From the position and condition of his body it may be assumed that he was run over and killed by another train, and this the amended complaint Under its averments, and on the evidence, the mate


rial inquiry is whether putting him off at such time and place was the proximate cause of the death, or his own negligence or other intervening agency.

Effect of de

Drunkenness has been styled a self imposed disability, and men make themselves drunk at their peril. It does not excuse the omission to use the same care and prudence which is exacted of a sober man under the same circumstances. "The fact of the intoxication of the in- ceased's injured person at the time of the injury will not toxication. only not relieve from the consequences of his contributory negligence, but also, if his intoxicated state contributed to the happening of the injury, will be admissible in evidence as proof of contributory negligence." 2 Am. & Eng. Ency. Law, 751; Columbus & W. R. Co. v. Wood, 86 Ala. 164; Beach, Contrib. Neg. § 146. It appearing that plaintiff's intestate was not so drunk as to be unconscious of the peril attending the passing of trains, or unable to take care of himself, his drunkenness is not only not excusatory, but tends to show that he contributed to his own injury, by placing himself in the position of imminent danger in which he was found. Had he even remained on the side of the road where he was left he would not have been injured. The degree of intoxication, as also the other facts and circumstances, plainly distinguish this case from the case of Louisville C. & L. R. Co. v. Sullivan, 81 Kv. 624, 16 Am. & Eng. R. Cas. 390; which is cited and relied on by appellee's counsel. In that case the weather was intensely cold-several degrees below zero,-the ground covered with snow eight to ten inches deep, and the person put off stupidly drunk, unable to take care of himself or to travel. The probability was that he would remain wherever put, and the natural consequence that he would freeze, which in fact produced his injuries. Putting him off under such circumstances was considered gross negligence, and the proximate cause of his injuries. It is said in the opinion that the force, if not unnecessary, was used "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 pitfall or well, or when a person is pushed off a fast moving train,"-which made it reckless or wanton.

Railway Co. v. Valleley, 32 Ohio St. 345, is parallel. The party, who was drunk, but not stupefied, or unable to travel, was put off about 8 or 9 o'clock in the evening, and was found the next morning, about one-third of a mile from where he was put off, in a dying condition, and died a few moments after he was taken up. Being found near the track, badly

bruised and mangled, it was assumed that he was run over and killed by another of the company's trains. ASHBURN, J., said: "But if the propriety of the expulsion were doubtful, either because deceased's conduct did not justify it, or because his condition rendered it unsafe and dangerous in its consequences, still we must find that the death was the nat ural and proximate result of the expulsion before defendants can be made liable. How can this be said in the present case? Admit that the railroad track is dangerous to passersby admit that putting off, as was done, was placing him in circumstances of danger,-they were no more dangerous to him than they were to every man whose business or pleasure take him in the neighborhood of railroads. There was no unusual or extraordinary circumstance of danger in the whole transaction, if the man was able to take care of himself; and this he was. The mere putting off, therefore, was in no way connected with his death, except as he himself connected it, by reason of his intoxication, and for this he alone is responsible. The expulsion is not in any way the occasion of the catastrophe, either as a proximate or other cause, unless it is in some way attached or linked with the drunkenness. If this is the state of the case, he must have been so drunk at the time he was struck as to be unable to avoid the accident, which shows the intoxication to have been the proximate cause; and, whether it be the proximate cause, or a cause for which he alone is responsible, in either case the responsibility cannot be fastened upon defendant." These cases, above referred to, draw the distinction as to the circumstances under which an intoxicated person is put off the train, and when his drunkenness will be considered the proximate cause of his injury. Plaintiff's intestate being boisterous and unruly, using profane and vulgar language, making himself obnoxious to the other passengers, it was the duty of the conductor not to hesitate, but act promptly, using due discretion and judgment, Not being unconscious or in a stupor, and being familiar with the cut and road he was bound to know that other trains were expected, and that it would be dangerous to be or remain on the track. If the danger to which he was exposed consisted in his going upon the track, no place could have been found on the side of the road where he would not be exposed to the same danger. Left where passing trains would not injure him, without some interven ing agency, if he afterwards wandered on the track, and placed himself in a position of peril, it was his own carelessness, resulting from his unfortunate condition, for which defendants are not responsible. His expulsion from the train cannot, under the evidence, be regarded as the natural and

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