criminal negligence to have exposed the passengers to such peril without such sufficient police protection as would have afforded protection; and which would have been inexcusable for any reason or upon any ground. No such negligence can be imputed to defendant under the facts of this case. But defendant ought reasonably to have anticipated the mob might attack its train to reach the object of their vengeance, so soon as it had passed from the protection of the police; and precautionary measures should have been taken. Such a thing was likely to occur at any near distance from the central point of the disturbance. A like attack had been made prior to that time, two miles distant, upon the laborers that had been carried in the box car. On this occasion the mob seems to have been more violent than usual, and the utmost care and vigilance should have been taken to prevent the injury to passengers. The verdict is a sufficient warrant for the conclusion reasonable precautions were not observed.

Soine criticism is made on the instruction given, in the use of the word "such" and in the use of the words " care, FIRST INSTRUCskill, and diligence;" but the distinction taken in this TION SUSTAINED. respect is too subtle to be warranted by any fair reading of the instruction. After a most careful consideration it is thought the first instruction given for the plaintiff, of which complaint is made, states the law applicable to the facts of this case with sufficient accuracy, and there is no just ground for complaint on that

score.

It might be that in another case, where the facts are materially different, the instruction would not be applicable, and might be held to impose a degree of care and skill not enjoined by the law.

What is said of the first instruction is sufficient to dispose of the objections to the other instructions, and they need OTHER INSTRUCnot be further discussed. It may be conceded the fifth TIONS. instruction of the series given for plaintiff is in some respects slightly inaccurate, but not seriously so. The injury suffered by plaintiff is so serious in its consequences the judgment in his favor ought not to be reversed for any mere subtle objection to an instruction not warranted by the substantial justice of the case.

Objections are also taken to the refusal of the court to give a number of instructions asked by defendant, and to the modification of others by the court. It is seen the instructions for defendant are quite numerous, and state the law very favorably to the defence sought to be made. It may be conceded, as is done, that some of the instructions refused might have been with propriety given had not others been given containing substantially the same proposition. The court was under no duty to repeat the same thing, although expressed in different language and differently formulated. It would have aided in no proper way the defence defendant was endeavoring to make.

It is assigned for error that the court permitted counsel, in his closing argument, to make statements of facts not in evidence, to the prejudice of defendant, and to address the jurors by name, and to propound questions to them and receive answers to such questions, against the objection of defendant.

It may be counsel indulged in intemperate language, not justified by anything in the case; but the manner of conducting the oral argument before the jury is so much within the discretion of the trial court that this court will hesitate to interfere unless it should appear manifest injustice has been done.

It is the duty of the trial court to require counsel to keep always within the bounds of propriety, and to be mindful of the rights of others who are not permitted in that presence to make reply.

The judgment of the appellate court will be affirmed.

MAGRUDER, J., dissenting: I do not concur in this decision, seeing no reason for retreating from the views expressed in the opinion adopted by a majority of the court on the original hearing, but which has subsequently been rejected upon the rehearing. The opinion so rejected, with the exception of a few unimportant changes, is as follows:

The question presented by this record is whether a railroad. company can be held liable for injuries inflicted upon a passenger by a mob which boards the train at a legal stopping place, and overpowering the officers in control, makes an attack upon certain of the passengers, who have incurred its ill will. . . . In order to justify a recovery it must be shown that appellant was guilty of negligence, and that such negligence was the proximate cause of the injury to appellee.

The instructions proceed upon the theory that the taking of the non-union men upon the train on the evening of June 1, 1882, was an act of negligence. The jury were told, in substance, that if the circumstances were such as to lead a prudent man to believe that the presence of the non-union men upon the train would provoke an attack by the strikers, and the appellant knew of such cir cumstances, then the admission of the non-union men into the cars was a violation of appellant's duty to its passengers, and the appellee was entitled to a recovery.

"The law requires common carriers of passengers to take and carry every one who desires to go, provided they have room, and there be no objection on account of the condition, habits, character, deportment, or purposes of the passengers." Galena & C. U. R. Co. v. Yarwood, 15 Ill. 468.

"The company has no power to adopt rules and regulations prohibiting decently-behaved persons, who will pay their fare and conform to all reasonable regulations for the safety and comfort of passengers, from travelling on the road." Chicago, B. & Q. R. Co. v. Bryan, 90 Ill. 126.

It is the duty of a railroad company "to receive and carry all persons as passengers, wishing to become such, provided they in good faith offer to pay the usual fare." Rorer, R. R. p. 961; Ang. Car. §§ 524, 525; Story, Bailm. 591.

It is true that the rule here laid down is subject to certain qualifications. There are those whom the common carrier is not bound to carry. "He is not obliged to carry one whose ostensible purpose is to injure the carrier's business, one fleeing from justice, one going upon a train to assault a passenger, commit larceny or robbery, or for interfering with the proper regulations of the company, or for gambling or committing any crime; nor is he bound to carry a person who, on account of his drunken condition, would be obnoxious to passengers, or one affected with a contagious disease." Thomp. Car. of Pass. p. 29.

Persons may be rejected "who are known and notoriously bad, or even justly suspicious characters, or persons offensively gross and immoral in their conduct, habits, or behavior, . . . or such as refuse to pay their fare or to conform to the reasonable rules and regulations of the company." Rorer, R. R. p. 958,

The above extracts, based as they are upon numerous adjudicated cases, indicate the nature and character of the objections which common carriers are justified in making to persons who demand to be carried as passengers. No such objection existed in the case of the thirteen "non-union" laborers received on its train by appellant.

It is said that these laborers had incurred the wrath of an angry mob, and that their presence on that train invited the vengeance of that mob. They had, however, done nothing to deserve the hostile treatment exhibited toward them. They had agreed to work for the steel company upon being paid certain wages, and were endeavoring to perform their agreement. What they were doing was clearly permissible under the law. Where the employer and employee make a contract with each other, and arrange the terms, satisfactory to themselves, upon which the one shall receive and the other shall render service, they are acting strictly within the limits of their constitutional rights. In this country any man has a right to work for whom he pleases upon any conditions that he chooses to submit to, provided the occupation engaged in is lawful in its character. Any individual or any organization which assumes to interfere with the exercise of such right infringes upon the personal liberty and freedom of action which it is the object of our institutions to secure to every law-abiding citizen.

In the light of these principles the non-union workmen were committing no offense. They were earning their living in an honest way, by legitimate labor, in a lawful occupation. To hold that, because they were so doing, a common carrier was authorized to

refuse to give them passage over its road would be to maintain a monstrous doctrine, indeed.

It is true that the "Ore Shovelers' Union," a labor organization, outside of and unknown to the law, chose to take offence at their conduct and to pursue them with unnatural violence. But we are not prepared to hold that a common carrier will be justified in refusing to receive a person, as a passenger in its conveyance, simply because that person's exercise of his lawful rights has become offensive to his unreasoning neighbors, and provokes from such neighbors unreasonable demonstrations of hostility against his person. Suppose that the appellee, who is a judge of one of the appellate courts of this State, had, by his declaration of the law upon some public question, stirred up such a feeling of hostility toward himself among a certain class of persons along the line of the railroad over which he was obliged to travel from his home to the place where his court held its sessions, that he was in danger of mob violence, and that, upon his application to be received as a passenger, the railroad company had declined to admit him upon its train, on the ground that Iris presence there might provoke an attack at some point of the road, and so cause injury to the passengers. Would the company be justified in thus preventing him from going to the performance of his official duties? We see no difference between the case supposed and the case presented by the record. The law is no respecter of persons. Its glory is that it extends its protecting hand as well to the lowly workman as to the learned judge.

Each one of these thirteen "non-union" laborers, soiled with ore dust from the docks, yet willing to comply with the reasonable regulation which required him to take his seat in the smoking-car rather than in either of the passenger coaches, was as much entitled as was appellee to demand of a carrier, holding its franchises at the hands of the State for the benefit of the whole public, a safe passage, at the close of his day's labor, to his home and his family.

Hence, it was no less the duty of the railroad company to take the thirteen laborers on the train than to take the appellee thereon. Appellant was not obliged to neglect its duty to the one because the performance of that duty might, in some remote and uncertain degree, result in harm to the other. It is not contended, nor is there a particle of evidence to show, that the appellant had any notice that this attack would be made on its train, either at the place where it was made or at any other point on its road. Laborers had been brought up from Joliet to Chicago in the morning, and returned to Joliet in the evening, prior to June 1, 1882; but the "strikers" had made no attack, before this particular day, upon any passenger train. They laid their plans with rare cunning and Instructions must be based upon the evidence. If it is left to the jury to determine whether or not a prudent man

secrecy

would draw certain conclusions from certain circumstances, it must at least appear that there was some reasonable and natural relation between the circumstances existing and the conclusions to be drawn from them. No prudent man, even in the exercise of that high degree of care which the law imposes upon the carrier of passengers, could be expected to foresee or anticipate that the animosity of union toward non-union laborers would lead to such a wanton and fiendish attack as is shown by this record to have been made in a civilized city, and under a government of law, upon a train full of peaceable and orderly passengers.

The third instruction given for the appellee told the jury that the appellant could not justify the admission of the non-union laborers into the train "on the ground that the defendant had issued to the foreman of said laborers a ticket on which they were carried on said train." We think that this instruction was calculated, under the circumstances of this case, to make a wrong impression upon the minds of the jury. It seems to intimate that the obligations of appellant to the laborers would be less binding, in a case where their common employer paid for the passage of all of them, and purchased one ticket for them all, than such obligations would be in a case where each laborer paid his own fare and bought his own ticket. We know of no authority and can see no reason for any such distinction. Whatever rights and privileges would inure to the benefit of the laborers by reason of their fare being paid would so inure whether such fare was paid by themselves or by the steel company which employed them.

It is further claimed that there was no regular passenger station at the ore docks, and that, for this reason, appellant was not obliged to stop there and take on the thirteen workmen. Even if it was not obliged to stop, it will not be denied that it had the right to stop. And it is a matter of serious doubt whether the industries of a great commercial centre, or the carriers and other agencies which minister to and aid in their operation, are bound to suspend the exercise of their legal rights, or cease the transaction of their lawful business, simply because there exists some disturbance in the community which the officers of the law, either through unwillingness or inefficiency, fail, for the time being, to successfully quell.

But, independently of this consideration, the undisputed proof shows that the gateway of the dock-yards was just south of the river, while right across the bridge, on the north side of the river, was the regular Bridgeport station; that, some weeks before June 1, 1882, the steel company had made an arrangement with appellant by which the latter agreed to let off and take on the laborers at the docks, rather than at the station, because the men would be in danger of being injured by the mob if compelled to walk from the one place to the other across the bridge; that the taking on of

31 A. & E. R. Cas.-3