of insult and abuse under which he had been disembarked might be considered in estimating the damages to which he was entitled. The same rule was also applied in an elaborately considered case, in which the conductor of a train had forcibly ejected from the ladies' car of the train a woman, who was conducting herself with propriety, upon the ground that she was of generally bad character.32

Sec. 976. ($515a.) Same subject-When one passenger may be ejected for misconduct of another.-Cases may easily be conceived in which the ejection of one person, having in his charge another not fit to be carried, would be justifiable, though he himself was unobjectionable, as in the case of the keeper of a madman, an officer in charge of a dangerous prisoner, likely to do present injury, and the like. But where no such element of control or responsibility existed the ejection of the innocent passenger could not be justified. Thus, a father traveling with his adult son cannot lawfully be ejected for his son's misconduct, for which the father is not at fault and in which he does not participate.33

Sec. 977. ($546.) When the passenger may be ejected for improper conduct.-But the right of the carrier to expel the passenger, or to restrict his privileges in the conveyance when his conduct is such as to seriously interfere with the comfort of other passengers, or to endanger their safety, or when his purpose in becoming a passenger is to interfere or come in competition with the business of the carrier, is undoubted. In an admiralty case, in which it appeared that the libelant persisted in carrying on business as an express agent upon a boat against the orders of its officers, and, being ejected therefrom, filed his libel against the boat for indemnity for the wrong, it was held that the removal was justified. "A public conveyance of this character," said Hunt, J., "is not intended as a place for the transaction of the business of the passengers. The suitable carriage of persons or property is the only duty

32. Brown v. Railroad Co., 7 Fed. Rep. 51.

33. Louisville, etc., R. Co. v. Maybin, 66 Miss. 83.

of the common carrier. A steamboat or railroad company is not bound to furnish traveling conveniences for those who wish to engage, on their vehicles, in the business of selling books, papers or articles of food, or in the business of receiving and distributing parcels or baggage, nor to permit the transaction of this business, when it interferes with their own interests. If a profit may arise from such business, the benefit of it belongs to the company, and they are entitled to the exclusive use of their vehicles for such purposes. This seems to be clear, both upon principle and authority.' '34

In expelling the passenger, however, the servants of the carrier act at their peril; and if such passenger is wrongfully expelled from the carrier's vehicle, the fact that the servants acted under a misapprehension in supposing that he had been guilty of some misconduct will afford the carrier no excuse.35

Sec. 978. Same subject-Ejection of drunken passengers.— "The right of a conductor of a passenger train to eject one who refuses to pay his fare, or is drunk and disorderly, is unquestioned, but not absolute. It is subject to limitations. In exercising it, due care must be had to the condition of the person to be ejected, and the situation in which he will be placed when ejected. One helpless from any cause, and incapable of taking care of himself, must not be treated as one in the full possession of his faculties. In every case, care must be taken to expose the person ejected to no unusual or unnecessary hazard. At the same time, the conductor is responsible for his train, and it is not only his right, but may be his duty, to eject a trespasser or a drunken and disorderly passenger. Obviously, in doing this, he must to a large extent act upon appearances and in the light of probabilities. All the law requires is that he shall use reasonable care and caution."36 But the

34. The D. R. Martin, 11 Blatch. 233; Jencks v. Coleman, 2 Sumn. 221; Burgess v. Clements, 4 Maule & S. 306; Fell v. Knight, 8 Meeson & W. 269; Commonwealth v. Power, 7 Met. 596; Barney v.

The Steamboat Co., 67 N. Y. 301.

35. Lowe v. Railway Co., (1893) 62 L. J. Q. B. 524; Seaboard, etc., Ry. Co. v. O'Quin, Ga. 52 S. E. Rep. 427.

36. Korn v. Railway Co., 125

conductor is not bound to wait until some act of violence, profaneness or other misconduct is actually committed before exercising his authority to expel the offender. It is sufficient if the offender, by means of intoxication or otherwise, is in such a condition as to make it reasonably certain that, by act or speech, he will become offensive or annoying to other passengers, although he has not committed any act of offense or annoyance.37 On the other hand, the mere breach of good Fed. 897, 62 C. C. A. 417, 63 L. R. subsequent case in the same court, A. 872. the law as thus laid down was followed, and the plaintiff was denied the right to recover for injuries received in the act of being ejected for intoxication, which rendered him offensive to other passengers, it appearing that the injuries were caused by his own struggles in resisting the expulsion. Murphy v. The Railway Co., 118 Mass. 228.

In Vinton v. The Railroad, 11 Allen 304, the plaintiff sued the company for damages for his expulsion by the conductor from one of the company's street railway cars; but it being proven that there were other passengers on the car, some of whom were females, and that the plaintiff was, at the time, intoxicated, and was using loud, boisterous, profane and indecent language towards the conductor, and had attempted to strike him, it was held that the conductor not only had the power, but, being bound to take all proper measures to insure the safety and provide for the comfort of the passengers, and for that purpose to repress and prohibit all disorderly conduct in the company's vehicles, it was his duty to expel and exclude therefrom any person whose conduct or condition was such as to render acts of impropriety, rudeness, indecency or disturbance either inevitable or probable, and that he was not bound to wait until some overt act of violence, profaneness or other misconduct had been committed, to the inconvenience or annoyance of the other passengers, before exercising his authority. And in a

Though having a proper ticket, a passenger who is drunk and disorderly may be ejected (Sullivan v. Railroad Co., 148 Mass. 119); or who is drunk and advises other passengers to refuse to pay fare (Baltimore R. Co. v. McDonald, 68 Ind. 316); or who is guilty of using obscene and vulgar language (Peavy v. Railroad Co., 81 Ga. 485). See also, upon this point, Chicago Ry. Co. v. Pelletier, 134 Ill. 120, 24 N. E. Rep. 770; Railway Co. v. Saulsberry, 112 Ky. 915, 66 S. W. Rep. 1051, 56 L. R. A. 580; O'Laughlin v. Railroad Co., 164 Mass. 139, 41 N. E. Rep. 121; Railroad Co. v. Barger, 80 Md. 23, 30 Atl. Rep. 560, 26 L. R. A. 220, 45 Am. St. Rep. 319; Cutler v. Railroad Co., 69 N. H. 641, 46 Atl. Rep. 1051.

37. Edgerly v. Railroad Co., 67 N. H. 312, 36 Atl. Rep. 558.

manners in being drunk does not indicate that the passenger is a dangerous person and will not, in every case, authorize his expulsion, for it does not follow that, because a man is intoxicated, he is necessarily so unsafe or so offensive to other passengers that his expulsion from the conveyance will be justifiable, or will be required by the carrier's duty to his other passengers.38

Sec. 979. Same subject-Breach of table manners.-So in Prendergast v. Compton,39 the plaintiff sued the captain of the vessel for excluding him, while being carried as a passenger, from what was known as the "cuddy" of the ship, to which the defense was, that the conduct of the plaintiff was vulgar, offensive, indecorous and unbecoming. "There is some evidence," said Tindal, C. J., "that he was in the habit of reaching across other passengers, and of taking potatoes and broiled bones with his fingers. It would be difficult to say, if it rested here, in what degree want of polish would, in point of law, warrant a captain in excluding a passenger from the cuddy. Conduct unbecoming a gentleman, in the strict sense of the word, might justify him; but in this case there is no imputation of the want of gentlemanly principle.'

9. Duty of carrier to protect passenger.

Sec. 980. (§ 548.) Duty of the carrier to protect the passenger. The right, therefore, to expel the passenger after he has been taken is one to be exercised with great caution, and the propriety of its exercise, under the circumstances, is to be determined with sound judgment. It is true the vehicle belongs to the carrier, but when he employs it in a public business, every person to whom there is no legal objection, so long as there is room, has a right to enter and remain in it until he shall have been carried according to the public profession and undertaking of the carrier. But that right may be forfeited

38. Putnam . The Railroad, 55 39. 8 C. & P. 454.

N. Y. 108.

71

by his conduct, and in deciding whether it is so forfeited the carrier is not to consult alone his own rights or safety. His passengers have the right to demand of him that a fellowpassenger whose indecent and ungentlemanly conduct renders him an object of serious annoyance to them, or whose condition or manner gives reasonable ground for apprehending personal injury from his recklessness or violence, shall be removed or be so guarded or confined that they may be free from the annoyance or the danger.40 And even without any such demand or suggestion from his passengers, it is a duty he owes to them, when the circumstances known to him are such as to create a reasonable apprehension of disorderly conduct or of a breach of the peace upon his conveyance, which may alarm or endanger his passengers, to be vigilant and prompt to suppress it when it occurs. And if, aware of the disturbance, he fail to use all the means in his power to suppress it, he will be liable for any damages which may ensue from it to an innocent passenger. The passenger, from the time he enters his vehicle, has the right to claim the protection of the carrier from the insults and violence of others, whether entering it as passengers or not, and the law exacts from him the prompt employment of all the means at his command to

40. Railway Co. . Blain, 34 S. C. R. 74, 3 Canadian Ry. Cases 143, affirming Blain v. Railway Co., 5 Ont. L. R. 334, 2 Canadian Ry. Cases 85 and id., 2 Canadian Ry. Cases 69; Railway Co. t. Boyle, 115 Ga. 836, 42 S. E. Rep. 242, 59 L. R. A. 104; Railroad Co. v. Arnold, 26 Ind. App. 190, 59 N. E. Rep. 394; Spangler v. Railway Co., 68 Kan. 46, 74 Pac. Rep. 607, 63 L. R. A. 634, 104 Am. St. Rep. 391; Railroad Co. v. Finn, 16 Ky. L. R. 57, citing Hutch. on Carr.; Kinney v. Railroad Co., 99 Ky. 59, 34 S. W. Rep. 1066; Railroad Co. v. Barger, 80 Md. 23, 30 Atl. Rep. 560, 26 L. R. A. 220; Mullan

.

Railroad Co., 46 Minn. 474, 49 N. W. Rep. 249; Fewings v. Mendenhall, 88 Minn. 336, 93 N. W. Rep. 127, 97 Am. St. Rep. 519, 60 L. R. A. 601; Partridge v. Woodland Steamboat Co., 49 Atl. Rep. 726, 66 N. J. Law 290; Koch v. Railroad Co., 78 N. Y. Supp. 99, 75 App. Div. 282; Duggan v. Railroad Co., 159 Pa. St. 248, 28 Atl. Rep. 186, 39 Am. St. Rep. 672; Railway Co. v. Wood (Tex. Civ. App.), 77 S. W. Rep. 964, citing Hutch. on Carr.

In King v. Railway Co., 22 Fed. 413, the company was held liable for the death of a passenger who was killed by another passenger