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; 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 Pacific R. R. Co., 34 Minn. 210; Atchison etc. R. R. Co. v. Gants, 38 Kan. 608; 5 Am. St. Rep. 780; Great Western R'y Co. v. Miller, 19 Mich. 305; McClure v. Philadelphia and Baltimore R. R. Co., 34 Md. 532; 6 Am. Rep. 345; Hutchinson on Carriers, sec. 590; Rorer on Railroads, 960; Memphis etc. R. R. Co. v. Womack, 84 Ala. 149; Louisville etc. R. R. Co. v. Black, 89 Ala. 313. 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 defendant 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 six o'clock in the evening, dark and raining. The place, at or near the entrance to a cut from two hundred to two hundred and fifty 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 twelve feet below and thirty 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 physical

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 thirty 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 avers. Under its averments and on the evidence, the material inquiry is, whether putting him off at such time and place was the proximate cause of his death, or his own negligence or other intervening agency.

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 injured person, at the time of the injury, will not 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. of Law, 751; Columbus etc. R'y Co. v. Wood, 86 Ala. 164; Beach on Contributory Negligence, sec. 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 etc. R. R. Co. v. Sullivan, 81 Ky. 624, 50 Am. Rep. 186, 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 I 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,"-reckless or wanton.

Railway Co. v. Valleley, 32 Ohio St. 345, 30 Am. Rep. 601, is parallel. The party, who was drunk, but not stupefied or unable to travel, was put off about eight or nine 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 natural and proximate result of the expulsion before defendants can be made liable. How can this be said in the present case? Admit that the vicinity of a railroad track is dangerous to passers by; 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 takes 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 him 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 to 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, ol a cause for which alone he 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 putting an intoxicated person, 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 hesi tate, 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 intervening 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 proximate cause of his death, or as connected with it, except as he himself connected it by his vol. untary intoxication: McClelland v. Louisville etc. R'y Co., 94 Ind. 276.

The court should have given the affirmative charge requested by defendant.

Reversed and remanded.

Intoxication as Contributory Negligence.*

INTOXICATION AS CONTRIBUTORY NEGLIGENCE — Intoxication Which did not Contribute to the Injury. In actions to recover for personal injury alleged to have been inflicted in consequence of defendant's negligence, the fact that the plaintiff was intoxicated at the time the injury was received does not of itself constitute such contributory negligence as will defeat recovery: Stuart v. Inhabitants of Machiasport, 48 Me. 477; Cramer v. City of Burlington, 42 Iowa, 315; Thorp v. Town of Brookfield, 36 Conn. 320; Houston etc. R'y Co. v. Reason, 61 Tex. 613; Robinson v. Pioche, 5 Cal. 461. Intoxication, by itself, will not prevent recovery without proof that it actually contributed to the injury: Houston etc. R'y Co. v. Reason, 61 Tex. 613. In other words, drunkenness is not a defense by way of contributory negligence,

REFERENCE TO MONOGRAPHIC NOTES.

Intoxication as a defense of one accused of crime: 40 Am. Rep. 560-570. Intoxication of contractor at time of executing a contract: 21 Am. Rep. 29-34. Intoxication, civil damage laws authorizing recovery of damages from persons selling liquors to others, who become intoxicated thereon: 25 Am. Rep. 362–369; 48 Am. Dec. 625-632,

unless it was the proximate cause of the injury received: Davis v. Oregon etc. R. R. Co., 8 Or. 172.

Intoxication does not Excuse Negligence. - Voluntary intoxication is no excuse or justification for the commission of an act of negligence on the part of the plaintiff: Missouri Pac. R'y Co. v. Evans, 71 Tex. 361. The fact of his intoxication will not relieve the plaintiff of that exercise of due care for his personal safety that would reasonably be expected to be exercised by a sober person under the same circumstances: St. Louis etc. R'y Co. v. Wilkerson, 46 Ark. 513–522. In actions to recover for personal injuries alleged to have been caused by negligence on the part of the defendant, the plaintiff must show that the injuries he received were occasioned exclusively by the negligence of the defendant. Hence if it is found that plaintiff has himself been guilty of any negligence or want of ordinary care that has directly contributed to cause the accident, he has no cause of action for the injury received, though the defendant may likewise have been guilty of negligence; and the rule is the same whether the plaintiff was drunk or sober at the time of the accident: Kean v. Baltimore etc. R. R. Co., 61 Md. 154. If a traveler on the highway, by reason of his voluntary intoxication, exposes himself to danger, and receives injuries which he could, and by the exercise of ordinary prudence would, have avoided if sober, he is guilty of contributory negligence, and cannot recover: Wood v. Board of Commissioners, 128 Ind. 289. Or if the party injured becomes drunk under such circumstances that any reasonably prudent man could foresee that he was putting himself in such a position of peril that that which resulted might probably happen, then his intoxication is a defense by way of contributory negligence: Davis v. Oregon etc. R. R. Co., 8 Or. 172.

Contributory negligence caused by the inebriation of the party injured will exonerate the party inflicting the injury from responsibility, especially when there is no negligence on his part: Weeks v. New Orleans etc. R. R. Co., 32 La. Ann. 615. A man cannot, by his voluntary intoxication, place himself in a condition whereby he loses such control of his brain and muscles as a man of ordinary prudence and caution, in the full possession of his faculties, would exercise, and thereby contribute to an injury to himself, and then require one ignorant of his condition to recompense him therefor: Strand v. Chicago etc. R'y Co., 67 Mich. 380. This rule is illustrated by nu. merous cases. Thus in Toledo etc. R'y Co. v. Riley, 47 Ill. 514, the plain. tiff was injured in consequence of being struck by a train on a railroad track, while returning home in the afternoon. The facts, as referred to by the court in its opinion, were, that, as appeared by his own statement, he had been drinking somewhat freely of whisky, and the testimony of other witnesses showed that he was in such a condition that he paid no attention to the shouting of two persons only ten or twelve steps from him, just before he crossed the track. The evidence further showed that the railroad track was in full view as he approached it from such a distance as to make it evident "that the plaintiff, by the exercise of less than ordinary prudence, might have discovered and avoided the approaching train. He did not do this, but either in a state of partial stupefaction from drink, or acting with a reckless temerity utterly inexcusable, he undertakes to cross with the train in full view, if he had but looked along the track, thus wantonly im periling not only his own life, but that of the passengers on the train. While the highway traveler cannot be required to leave his vehicle, or adopt any other unusual means to discover an approaching train, he cannot be per