If such a rule could not be properly made, the act of a conductor in such a case without a regulation to that effect cannot be justified. For these reasons we think his Honor did not err on this question in his instruction to the jury, and they were well warranted in finding the party wrongfully ejected if they found such an offer was made, and was heard by the conductor as he passed to the door for the purpose of ejecting the plaintiff. Public policy, the interest and rights of the public, as well as the known conditions surrounding the business of carrying passengers by railroads in this country, demand that no narrow or technical rules should be prescribed to enable them to exercise any arbitrary authority whatever in the performance of their duties growing out of their relation to the public. On the other hand, every principle of fairness and of right demands that the carrier should be sustained in enforcing such reasonable regulations as may by experience be found necessary and proper in the conduct and management of the vast machinery to be administered in carrying on this complicated and responsible business.

It is urged, however, and cases are cited tending to support the position, that immediately on failure to comply with the demand of the conductor the contract was broken or was forfeited, and the right of the carrier was complete to eject the passenger, regardless of a subsequent offer before actual ejection to pay either by himself or another for him.

To this proposition we cannot assent at any rate in a case like the present. There was no captious objection or refusal to pay or comply with a reasonable regulation of the carrier such, as the cases of refusal to give up tickets on receiving a check, or to exhibit ticket or the like as in the cases referred to; on the contrary it was only an inability to meet the demand for the fare, arising out of innocent mistake or ignorance.

The rule contended for stands on too narrow a technical logic to meet the demands of right in such cases; a rule embodying a reas onable and liberal spirit, the one dictated by fairness and the nature of the duties respectively imposed on the parties, should be laid down. The rule we have given we think embodies the true spirit of the whole contract, and the rights of the parties on the subject.

The passenger is entitled to transportation, the carrier to fare. When this is paid or offered the law imposes the duty, and if of fered by or for a passenger before his ejection from the car then his right is fixed, and the duty of the carrier arises.

Ejection from the car is not in the nature of a forfeiture or penalty to be enforced by the conductor. It is simply the exercise of a legal right, that right to be exercised with due regard to the rights of others.

The case of a party taking passage on cars like the one before us

may well be likened to that of a party who is in another man's house, not having been guilty of a trespass in entering. In such case the long settled rule is that he must be told to leave before he can be forcibly put out, and such a degree of force then only shall be used as is necessary to accomplish the object. Wait's Act. and Def., vol. 1, page 121. Citing Weaver v. Bush, 8 Tenn. R. 78; 4 Denio, 448. And if wanton injury be inflicted, even on a trespasser, he may maintain an action therefor. Deane v. Clayton, 7 Taint. 489. And these rules apply to a railroad company, and a party may lawfully resist being put off the train with unnecessary rudeness or violence. Wait, 121.

An extreme case it may be will put this in a light that will perhaps make it clearer. An old feeble woman gets on the car thinking she has the means of paying her fare, but finds herself mistaken. The law authorizes, and regulations of the company, that she shall be put off. But a gentleman sees her case, and after she has been started out of the car proposes to pay, out of motives of humanity, could any one say that a carrier with the obligations of his position should not promptly receive his compensation and return her to her seat? The common sense of all would at once answer in the affirmative, and the moral sense of every man be shocked at the assertion of a contrary rule.

We do not decide on a case where there is a refusal to pay captiously, vexatiously; we have no such case before us. But as applicable to the facts of this case, we have no question, his Honor's charge was correct, and approve the principle announced.

The next question is, that his Honor allowed the jury, if they thought proper, to give punitive damages or smart money in this

case.

We held upon full consideration in the case of Haley v. Mobile and Ohio Ry. Co., 7 Baxt. 243, that a railroad company was liable for vindictive damages in all cases where the element required to give such damages were found, as in the case of natural persons. In that opinion by C. J. Deaderick, we approved the principles of the case of Goddard v. Grand Trunk Ry. Co., Maine R., cited from American R., vol. 2, 39, in this language: "That there is no class of cases where the doctrine of exemplary damages can be more beneficially applied than in the case of railroad corporations in their capacity of common carriers of passengers."

We see no reason to go over the cases in other States to find support for this view. It is sound in our judgment and needs no further discussion.

It is proper to say that the case of Staines v. Nashville and Chattanooga R. R., 9 Hink. 53, did not intend to announce any contrary general doctrine, and does not, when considered in connection with its facts. So far from limiting the liability of a railroad company for the acts of its servants, when any injury is done.

in the performance of the duties of their position, it was extended in that case to the act of the servant in wantonly and for mischievous purposes using the engine of the company to alarm the horses in a wagon (a proposition the writer of this opinion thinks a very doubtful one). In a case like that, however, it was said, the company should not be held liable for vindictive damages, because, says the judge, "The act complained of was manifestly done without the defendant's knowledge or consent, and was the wilful and unauthorized act of the servant alone."

Whether this be correct or not in reference to the facts of that case, we need not now determine, but it has no application whatever to the case before us, where the act done was in the strict line of the duty of the conductor, but done under a state of facts not justifying the act done, and in a wrongful and perhaps careless manner to the injury of plaintiff.

corpora

We need not discuss the question of general liability of tions for the acts of their agents for wrongs done in the performance of their functions, as said by this court in the case of Nashville and Chattanooga R. R. Co. v. Elliott, 1 Cold. 619. In general the only mode in which a corporation aggregate can act is through the intervention of their agents.

This, however, is all familiar law that at this day needs no support from authority.

As to the amount of damages in this case, we need only say it is a matter largely left by the law to the discretion of the jury, and we see nothing in the sum allowed in this case, $2,000, which would authorize or require a reversal on this account.

We see nothing in the affidavits of newly discovered testimony worthy of notice. They are but little if any more than the statement of a party that he did not see some things testified to by plaintiff's witnesses.

But in addition we see from the record that the conductor himself was present in court as a witness for defendant, who knew all the facts and is shown to have been a truthful man. And yet defendant failed to introduce him to contradict the facts deposed to.

There was ample means at hand to have had the best testimony that could be had on these questions, which defendant neglected or refused to introduce.

Upon the question of a new trial, his Honor stated he thought the damages too much and required a remittiter; but because the defendant refused to abide by his judgment and would not agree not to appeal to this court he allowed the judgment to stand.

This was reprehensible, but we see from the record this was based, not on the evidence, but on the affidavits presented on the motion.

We do not think these were sufficient, and have so ruled. And

therefore as his view was not on the testimony before the jury we see no error in it.

Let the judgment be affirmed.

See O'Brien v. N. Y., etc., R. R. Co., 1 Am. and Eng. R. R. Cas. 259.

LOUIS E. TREAT,

v.

BOSTON AND LOWELL R. R. Co.

(Advance Case. Massachusetts, Sept. 6th, 1881.)

Action to recover damages for personal injuries sustained by the plaintiff by being thrown from a car on defendant's railroad by their negligent and improper management. At the trial the plaintiff's counsel, in opening the case, said that he expected to prove the following facts: The plaintiff purchased a ticket at Boston for Lexington. He took his seat seasonably in the car, and on being called upon gave up his ticket to the conductor, requesting that he would stop at Monroe station, which is a flag station a little east of Lexington. The conductor took the ticket, saying, "I can't punch it, but I'll stop the train at that station." There was a great crowd of passengers, and the train was long and heavy, and did not start until long after the advertised time. On approaching Monroe station the plaintiff left his seat and tried to make his way toward the door, in order to leave the train at that station. The train did not come to a full stop on reaching the station, but the plaintiff, in making his way through the crowd, reached the platform, and in the surging of the crowd fell, or was pushed out, at the platform, and down the steps of the car, and after holding on with his hand for a short distance, finally fell to the ground and was injured. The court ruled, at the defendant's request, that if the facts stated in the opening were true, they did not make out a case, and would not enable the plaintiff to maintain his action. Held, that this ruling was erroneous, for the reason that on both the questions, whether the plaintiff was in the exercise of due care, and whether the defendants improperly and negligently managed their train so that the injury occurred thereby, there was evidence which should have been submitted to the jury.

DEVENS, J.-On both the material questions involved, there was evidence which should have been submitted to the jury.

The plaintiff did not appear to have been in the position of one who at his own risk voluntarily assumes an exposed position not intended for passengers. Gahagan v. Boston and Lowell R. R., 1 Allen, 189; Todd v. Old Colony R. R., 3 Allen, 18, and 7 Allen, 207; Hickey v. Boston and Lowell R. R., 14 Allen, 429. He had been promised that the train should stop at Monroe station, and was justified in making proper preparations to leave the car there. It was a flag station where the stop would ordinarily be very short, and the difficulty of extricating himself from a crowd so great as to have overflowed the seats, passageways and platforms

and even invaded the roof, was evidently considerable. He did not fail in due care, if his conduct was that of a reasonably prudent man, and whether it was so under all the circumstances in which he was placed was a question of fact. It could not be held as matter of law that he was careless, because, as the train approached Monroe, he rose from his seat, endeavored to make his way to the door, in order to leave the car, and, having reached the platform, there fell or was pushed out by the surging crowd which had occupied it. Barden v. Boston, Clinton and Fitchburg R. R., 121 Mass. 426; Maguire v. Middlesex R. R., 115 Mass. 239.

Upon the inquiry whether the defendant had negligently and improperly managed its train, by reason whereof the injury to the plaintiff had occurred, there was also evidence of such a character that the court could not rule conclusively in its favor. Having agreed to stop at Monroe, the defendant failed to bring its train to a full stop there. Whether it failed to do so by reason of any disturbance from the crowd which had overloaded its cars, or whether it so checked the speed of the train that it deemed that passengers could safely leave the train and intended they should do so, does not clearly appear. But the failure to stop the cars fully may have been an act of negligence which occasioned the injury to the plaintiff, who, as he fell or was pushed, clung for a short distance to the car, until he could sustain himself no longer.

If the injury to the plaintiff was occasioned by the surging of a crowd which could not be controlled, or by the fact that such a crowd interfered with and prevented the proper management of the train, it was also a subject of consideration whether appropriate precautions had been taken by the defendant to guard against a day of excitement, when confusion might be reasonably anticipated from the presence of great numbers of people, and to prevent them from occupying positions which might be attended with danger to others as well as to themselves, or which might disturb the proper working of the trains.

New trial ordered.

FREDERICK A. POTTS

v.

NEW YORK AND NEW ENGLAND R. R. Co.

(Advance Case. Massachusetts, October 17, 1881.)

A carrier of goods consigned to one person under one contract has a lien upon the whole for the freight and charges on every part, and a delivery of part of the goods to the consignee does not discharge or waive that lien upon the rest without proof of an intention to do so.

When the consignor delivers goods to one carrier to be carried over his route, and thence over the route of another carrier, he makes the first carrier