matter who makes the tender.

Ham. v. President, etc., Delaware & H. Canal Co. (Penn. May 27, 1891), 21 Atl. Rep. 1012.

Person Desiring to be Ejected in order to Bring Suit.-In St. Louis & S. F. R. Co. v. Trimble (Ark. Sup. Ct., March 28, 1891), 15 S. W. Rep. 899, it was held that where a passenger enters a railroad train, expecting and desiring to be ejected, in order that he may bring a suit for damages, he cannot recover for wounded feelings and pain of mind.

Injury to Passenger after Expulsion-Contributory Negligence in Walking on Track-Intoxication.- Where one is ejected from a train, he is at liberty to walk on the track no further than is absolutely necessary to enable him to reach a position of safety, and it is his duty to adopt any means of egress from the track which should be made use of by a person of ordinary prudence for that purpose, and a disregard of that duty is contributory negligence. And where one is put off a train at a place from which he can, by ordinary prudence, discover and go upon a traveled road, his failure to leave the track will not be excused by reason of his partial intoxication or the influence of his companion. Ham v. President, etc., Delaware & H. Canal Co. (Penn. May, 27, 1891), 21 Atl. Rep. 1012:

Trespasser on Freight Train-Duty of Company to.-Where a person clandestinely enters a box car of a freight train of a railroad company, to beat his way over the road, he becomes a trespasser on said train, and the only duty the company owes him is not to wantonly injure him. Hendrix v. Kansas City, F. S. & G. R. Co., 45 Kan. 377.

GEORGIA RAILROAD & BANKING Co.

V.

ESKEW.

(Georgia Supreme Court, February 23, 1891.)

Ejection of Passenger-Mistake of Conductor.-There was evidence from which the jury could infer that the plaintiff was wrongfully expelled from the train, and thereby denied the enjoyment of his legal rights as a passenger. It is no excuse for expulsion that the conductor made a negligent mistake as to the station indicated on the face of the ticket which the plaintiff had exhihited and surrendered to the same conductor.

Same-A Passenger need not Wait to be Forcibly Ejected if before or after the train reaches a certain station he is ordered by the conductor to get off at that station, the order seeming to be peremptory, and the passenger so understanding it, he may yield to the conductor's authority, and leave the train at the station indicated, though the conductor be not immediately present when this is done. In such case, if the passenger acts contrary to his own will, and in obedience to the conductor's command, he is correct, and is entitled to redress for his expulsion.

Same-Punitive Damages-Intention of Conductor.-Where punitive as well as compensatory damages are in question, the intention involved in the alleged tort is material. Whether the conductor intended to expel the plaintiff, or was misunderstood as to his purpose, was relevant evidence on the claim for punitive damages. The conductor was competent to testify as to what his intention really was.

Same-In Arriving at the Conductor's Intention the jury could consider that he remained silent on hearing the plaintiff remark, after he alighted from the train, "that it was hard to be put off and be compelled to pay one's fare."

Excessive Damages.-The cause of action being traceable to a mistake of the conductor, and not to his willful or intentional violation of the plaintiff's rights, a verdict for $750 damages has the appearance of being excessive, under all the facts and circumstances in evidence.

Needless Effort and Exposure by Expelled Passenger-Damages. -A person upon whom a wrong has been committed is under obligation to lighten the consequential damages as much as he can by the use of ordinary care and diligence. This applies, in case of an expelled passenger, to the time and mode of travelling from the place of his expulsion to the station at which he was entitled to be set down. It applies also to fatigue, hardship, and injury to his health involved in reaching there. Though he could not be compelled to pay fare to avoid wrongful expulsion, after being expelled he could not recover damages for walking, and its consequences, when he might have reached the station more cheaply and expeditiously, and with less injury to his health, by riding on the same or a subsequent train, or by securing other conveyance; nor, as a general rule, could he recover for inconvenience, hardship, or injury to health originating after reaching the station to which he wås entitled to be carried, or needlessly caused by walking and exposure before reaching there.

Compensation for Wounded Feelings, as well as punitive damages, should be adjusted to all the circumstances of the actual case.

ERROR from Rockdale Superior Court.

J. B. Cumming, and A. C. McCalla, for plaintiff in error. H. T. Lewis, and Geo. W. Gleaton, for defendant in error.

BLECKLEY, C. J.-The learned counsel for the railroad company argued only four of the grounds of the motion for a new trial. To these our opinion will be confined.

Illegal expulsion Mistake of conductor.

1. That the evidence, construing it, as we are bound to do, most favorably for the prevailing party, warranted a verdict for some amount against the company, we have no doubt. The tickets surrendered to the conductor by the plaintiff and his brother were from Atlanta to Social Circle; and that the conductor could and would have known this, had he exercised due care in the transaction of his business, admits of no question. If by reason of his own negligent mistake he expelled the plaintiff at Conyers, an intermediate station, when the plaintiff was rightfully on the train and entitled to be carried to his des tination at Social Circle, the expulsion was wrongful, and a breach of the legal duty of the company as a common carrier. A passenger who has paid for and supplied himself with a ticket in all respects valid and regular, boarded the proper train, conducted himself thereon in a proper manner, and surrendered the ticket to the company at its own request, cannot be required either to produce the ticket when again called upon for it, nor to pay fare as a condition of remaining upon the train, and being carried to the point indicated upon the ticket as the terminus of his route. He has no further concern with the ticket, and can lose none of his rights by

Passenger yielding to conductor's authority.

any mistake made by the conductor in reading it, construing it, mingling it with other tickets, or disposing of it otherwise. (a) Although the conductor neither used physical force to expel the plaintiff from the train, nor was immediately present when the plaintiff left the train at Conyers, yet it was in fact an expulsion if the plaintiff alighted against his own will, and as an act of obedience to the conductor's previous command. Nor does it matter whether the command was given shortly before the train arrived at Conyers, or after its arrival, provided it was or seemed to be peremptory, and the plaintiff so understood and treated it. There was evidence from which the jury could infer that the command appeared peremptory, and that the plaintiff yielded to it in good faith. While a passenger cannot avail himself of a formal order of the conductor, not meant to be absolute and final, as a pretext for leaving the train and grounding an action against the company for expulsion, yet, where the circumstances fairly warrant him in believing that the conductor means what he says, and he really does believe it, he need not wait for the employment of actual force against him, but may submit to the moral coercion of the conductor' authority, and may abandon the train as an expelled passenger. If conductors do not mean that passengers shall withdraw themselves from trains, they should not issue their commands prematurely. All passenger conductors are by statute invested with the powers of police officers while on duty upon their trains. Code, § 4586a. A passenger, whether right or wrong in any contention or misunderstanding with a conductor, is under no duty, legal or moral, to stand out until the conductor appeals to force for the execution of his commands. If the passenger obeys and thereby does an act to which his own will does not consent, he is coerced. Georgia R. Co. v. Homer, 73 Ga. 251, 27 Am. & Eng. R. Cas. 186. So far from being under a duty to resist, he would generally put himself in the wrong by offering resistance. For the sake of peace and good order, he ought to submit.

2. Section 3066 of the Code reads thus: "In every tort there may be aggravating circumstances, either in the act or the intention, and in that event the jury may give

tion of conductor.

additional damages, either to deter the wrongdoer Punitive damfrom repeating the trespass, or as compensation for ages-Intenthe wounded feelings of the plaintiff." This section was applicable to the case as made by the evidence. of the plaintiff below, and was properly given in charge to the jury. Georgia R. Co. v. Homer, 73 Ga. 252, 27 Am. & Eng. R. Cas. 186; Railroad Co. v. Olds, 77 Ga. 674. For

this reason the intention of the conductor was for investigation and determination by the jury as an element affecting punitive damages. Georgia R. Co. v. Homer, supra. If the purpose of the conductor was misunderstood, and he really had no intention of expelling the plaintiff from the train, although he had used language calculated to produce that impression, there was no aggravating circumstance taking its character from intention, and therefore no aggravating cir cumstance at all, unless found in the act itself, considered apart from intention, and viewed in the light of the time, place, and manner of its commission. From the general tenor of the conductor's evidence, it is highly probable he would have testified, had he been allowed to do so, that he had no intention to expel the plaintiff at Conyers. We think the court erred in refusing to allow counsel for the company to ask the conductor "whether or not it was his purpose to eject plaintiff from the train." As bearing upon the question of punitive damages, this was a legitimate inquiry; and there can be no doubt that the conductor was a competent witness to prove what his intention really was. There were divers circumstances in evidence tending to show that he intended expulsion. His answer on oath that he did not would have been direct evidence to the contrary of what the circumstances, s indirect evidence, tended to establish. In deciding upon the question of intention, the jury should have had before them both the direct evidence, excluded, and the indirect, which was admitted. The company could not escape being affected by the conductor's intention, and, this being so, it should have been allowed to show what that intention was. If the plaintiff had afterwards waived any claim for punitive damages, this error of the court would have been immaterial; but as there was no such waiver, and as the amount of damages awarded by the jury was very large for such a case, we think the company is entitled to a new trial on this ground. 3. There was no error in charging the jury as set out in the thirteenth ground of the motion for a new trial, that, in determining whether the conductor intended to eject the plaintiff, the jury could take into consideration the remark made by the plaintiff after he alighted from the train, but in the presence and hearing of the conductor, "that it was hard to be put off and be compelled to pay one's fare," and the failure of the conductor to make any reply to it. The conductor admitted in his evidence that he heard the observation, and made no reply. He does not explain why he made none. If he had been misunderstood, he could easily have said so to the plaintiff in answer to the remark above quoted, and the

Remark of plaintiff in presence of conductor.

jury might think it a legitimate inference from his silence that he was not misunderstood. True, the whole scene bears a different construction, but what it really meant was for the jury, and the court merely submitted it for their consideration. This was correct. But that it was correct makes it more clear that the court erred, as we have ruled under the preceding head, in not allowing the conductor to testify with reference to his intention; for if his silence at the time. of the transaction would throw light upon it, why would not his direct statement under oath at the trial be receivable to show what it really was? The charge, it will be noticed, relates to actual intention,-the kind of intention which might aggravate the tort, and serve as a basis for punitive damages. To allow compensatory damages, it would not be necessary for the jury to find actual intention; it would be enough for them to find apparent intention, that is, such manisfestation of intention by the conductor as would justify the plaintiff in believing that he had made up his mind to expel the plaintiff, although he had no such purpose and was in fact misunderstood.

Excessive

damages.

4. As a new trial is to be had, it is not absolutely necessary for us to decide whether the damages, assessed at $750, were excessive or not. We are strongly inclined to the opinion that the amount is out of reasonable and conscientious proportion with the magnitude of the injury. Numerous instances tending to illustrate the question of excessive damages by actual cases are collated in 5 Am. & Eng. Ency. Law, p. 55 et seq., but at last such case must be ruled chiefly on its own facts and special circumstances. In the present case there is no indication in the evidénce, taking it altogether, that there was any willful or intentional violation of the plaintiff's rights on the part of the conductor. No doubt he was in error, and that he fell into error on account of his own negligence. It was his duty to know that the tickets which he took up from the plaintiff and his brother were for Social Circle, and his failure to know it and have the means of verification afterwards is without any reasonable excuse that we can discover in the record. Between the conductor and these two passengers there were probably three misunderstandings. He thought either that they got on the train at Stone Mountain, or with tickets for that point, and no further; they knew that they got an at Atlanta with tickets for Social Circle. He thought they claimed to have had and surrendered tickets for Greensboro; they were sure they did not tell him they had tickets for that station. He thought he had not ordered them in a final and peremptory way to leave the train at Conyers; they con