and explicit terms." other passengers, and from annoyance by profane, obscene, or vulgar language, and that if, at the time defendant's conductor compelled plaintiff to leave the car, plaintiff was rude, or was using profane or vulgar language in the presence of other passengers, the conductors did no more than he was authorized to do, sufficiently informed the jury of defendant's duty to protect its passengers, and of the right of the conductor to enforce such protection. Williams v. St. Louis, etc., R. Co., 119 Mo. A. 663, 96 SW 307. 52. Dobbins v. Little Rock R., etc., Co., 79 Ark. 85, 95 SW 794, 9 AnnCas 84; Purvis v. Atlanta Northern R. Co., 136 Ga. 852, 72 SE 343. [a] Ambiguous.-In an instruction in an action for the ejection of a passenger that, if plaintiff was hurt at substantially the place he says he was hurt, he can recover, but if he was hurt at substantially a different location from that clamed by him he cannot recover, the word "claimed" is ambiguous, as it may have referred to the allegations of the petition or simply to the testimony of plaintiff, and in any case the evidence to warrant the charge should tend to show such a substantial difference in location as to make a different transaction or substantially to vary the law or defense applicable to the place where the injury occurred from that which would have been applicable to the place alleged. Purvis v. Atlanta Northern R. Co., 136 Ga. 852, 72 SE 343. 53. Louisville, etc., R. Co. v. Ogles, 142 Ga. 720, 83 SE 681; Purvis v. Atlanta Northern R. Co., 136 Ga. 852, 72 SE 343; Ferguson v. Missouri Pac. R. Co., (Mo.) 177 SW 616; Dennis v. Columbia Electric St. R., etc., Co., 93 S. C. 295, 76 SE 711. And see cases infra this note. [a] Instructions held proper as being applicable to the evidence. (1) Atlantic Coast Line R. Co. v. Thomas, 14 Ga. A. 619, 82 SE 299; Illinois Cent. R. Co. v. Black, 122 Ill. A. 439; Texas, etc., R. Co. v. Tems, (Tex. Civ. A.) 77 SW 230. (2) Where the defense was that the coin tendered as fare was so worn that the conductor could not determine it legal tender, and the conductor, as a witness, while denying that the coin exhibited in evidence was the same that was offered for plaintiff's fare, testified that the coin so exhibited was a good, visibly lettered coin, the court was justified in charging on the assumption that the coin introduced was of legal tender quality. Mobile St. R. Co. v. Watters, 135 Ala. 227, 33 S 42. (3) Where there was evidence that in ejecting plaintiff, the conductor used insulting language, and was "very impolite and gruff," there was no error in charging the law of vindictive damages. Atlanta Cons. St. R. Co. v. Keeny, 99 Ga. 266, 25 SE 629, 33 LRA 824. (4) Evidence that a road officer of a street railroad company threatened a passenger with the controller handle of the car, and that the passenger was forcibly removed from a seat near the front of the car to the back platform, was sufficient to justify an instruction as to the company's liability if its servants threatened and put plaintiff in peril of his life, and of great bodily harm, and compelled him to leave the car. Carmody v. St. Louis Transit Co., 122 Mo. A. 338, 99 SW 495. (5) Evidence that plaintiff was jerked off the car was sufficient to justify an instruction authorizing damages for physical suffering. Choctaw, etc., R. Co. v. Hill, 110 Tenn. 396, 75 SW 963. (6) Where there is evidence that defendant's brakeman pushed plaintiff from the steps of the train on which he was a trespasser, while it was going at a speed of from twelve to twenty miles an hour, showing unnecessary acts, which would not have been performed by a reasonable and prudent person, an instruction de- 54 236]; Illinois Cent. R. Co. v. Black, 122 Ill. A. 439; Louisville, etc., R. Co. v. Fowler, 123 Ky. 450, 96 SW 568, 29 KyL 905; Louisville, etc., R. Co. v. Kimbrough, 115 Ky. 512, 74 SW 229, 24 KyL 2409; Coleman v. New York, etc., R. Co., 106 Mass. 160; Sorenson v. Lincoln Tract. Co., 94 Nebr. 91, 142 NW 702; Galveston, etc., R. Co. v. Short, (Tex. Civ. A.) 163 SW 601. (2) A charge, in an action for injuries to a passenger re [b] Instructions held erroneous as not applicable to the evidence. (1) Louisville, etc., R. Co. v. Perkins, 144 Ala. 325, 39 S 305; Louisville, etc., R. Co. v. Penick, 8 Ala. A. 558, 62 S 965; Purvis v. Atlanta Northern R. Co., 136 Ga. 852, 72 SE 343; Louisville, etc., R. Co. v. Board, 80 SW 218, 25 KyL 2180; Texas Mid-quired to disembark from the train land R. Co. v. Geraldon, 54 Tex. Civ. A. 71, 117 SW 1004; St. Louis, etc., R. Co. v. McAnellia, (Tex. Civ. A.) 110 SW 936. (2) In an action against a carrier for an assault committed on plaintiff by a conductor, an instruction as to the conductor's right to eject plaintiff on his refusal to pay fare was properly refused where there was no evidence of an ejection. Braly v. Fresno City R. Co., 9 Cal. A. 417, 99 P 400. (3) An instruction asked by defendant presenting the theory that the conductor acted in self-defense, which was so drawn as to lead the jury to believe that the conductor could use any amount of force, even to the extent of causing death, if there were reasonable grounds for believing that there was danger of his receiving bodily injury, however slight, from the resistance of the passenger, was properly refused, where the only evidence to support such instruction was that, when the passenger attempted to get back on the car, he appeared to have his hand behind him. Devine v. Chicago City R. Co., 237 Ill. 278, 86 NE 689. (4) An instruction that the face of a ticket is conclusive between the train agent and a passenger is not applicable to the evidence, where a passenger had a ticket which was sufficient to entitle him to transportation, although defective. Forrester v. Southern Pac. Co., 36 Nev. 247, 134 P 753, 136 P 705, 48 LRANS 1. (5) Where there was evidence that plaintiff was injured by being thrown from a car by the conductor, and no evidence that the conductor was at any time not engaged in the running and management of the car, the giving of a charge that if the conductor threw plaintiff from the car, but the act was done willfully and maliciously, and not in the management and running of the car, defendant would not be liable, was prejudicial error. Schwartzman v. Brooklyn Heights R. Co., 84 App. Div. 608, 82 NYS 890. (6) The submission, as a distinct ground of damages, of the matter of a passenger being ejected in a "harsh and unreasonable" manner, is unwarranted where the evidence is that she refused to leave the car, and was led from her seat to the door, and fails to show that the manner in which this was done was unusual or harsh. Missouri, etc., R. Co. v. Richardson, (Tex. Civ. A.) 131 SW 1139. [c] As to ratification; exemplary 54. See cases infra this note. because of the insufficiency of her ticket and her refusal to pay fare, that, if the jury were not reasonably satisfied that the conductor knew of the passenger's infirmity and the peril attending her leaving the train at the time and place, the carrier was not liable for injuries sustained in alighting, was properly refused because misleading. Central of Georgia R. Co. v. Bagley, 173 Ala. 611, 55 S 894. (3) A request to charge that the conductor of a railroad train is a police officer whose duty it is to keep order on the train and to eject all persons who use obscene or abusive language in the presence and hearing of passengers is misleading because of its omission of the qualification that the conductor may use only such force as may be necessary to accomplish the removal, as provided by statute. Nashville, etc., R. Co. v. Moore, 148 Ala. 63, 41 S 984. (4) Where, in an action for forcible ejection of a person from a freight train, it appeared that such ejection was the act of the conductor and brakeman, and that plaintiff was injured in being willfully compelled to get off the train while moving from twelve to fifteen miles an hour, an instruction that, if the jury believed that plaintiff was forcibly and willfully thrown from the cars, they should not find defendant guilty unless they believed that the servants were acting within the scope of their employment, was unwarranted and misleading, since the conductor and brakeman, under such circumstances, in ejecting passengers from the train, were acting within the scope of their authority as a matter of law. Sanders v. Illinois Cent. R. Co., 90 Ill. A. 582. (5) Where, in an action for injuries to a passenger ejected from a street car, the court charged that if plaintiff boarded the car for the purpose of riding as a passenger and tendered his fare which the conductor without excuse refused to ceive, and wantonly ejected plaintiff from the car, the verdict should be for him, and that, if he was on the car for the purpose of selling newspapers, the verdict should be for defendant, unless the injury was caused wantonly, etc., an oral instruction that the court had refused instructions prepared by plaintiff, and had given in lieu of them its own instructions which were read, and stating that at the instance of the parties it had granted prayers which were read, that the object of the instructions was to present the theories of the case, and that, if the story told by plaintiff was believed, a verdict was authorized in his favor, while, if defendant's story was believed, the verdict should be for it, was erroneous as misleading the jury to the prejudice of plaintiff. Rosenkovitz v. United R., etc., Co., 108 Md. 306, 70 A 108. (6) In an action against a carrier for assault while ejecting plaintiff from a train, an instruction that defendant was liable, if its servants assaulted plaintiff at or immediately after he left the train, was misleading as authorizing a recovery for assault not commenced while the servants were acting within the scope of their employment. McDonald v. St. Louis, etc., R. Co., 165 Mo. A. 75, 146 SW 83. (7) In an action against a railroad company for the death of a drunken man run over after being re ejected from a train, a charge to find for plaintiff, if the death "was caused by, or was a natural and probable consequence of, his being ejected by the conductor in such condition," is erroneous in not limiting the liability to the "natural and probable consequences" of the ejection. St. Louis, etc., R. Co. v. Williams, (Tex. Civ. A.) 37 SW an 992. (8) An instruction that if the jury found for plaintiff, and that if his ejection was willful and malicious they might give exemplary damages was erroneous, as permitting award of exemplary damages regardless of whether or not defendant was guilty of the wrong committed by its servant by directing, participating in, or subsequently approving it. Wells v. Boston, etc., R. Co., 82 Vt. 108, 71 A 1103, 137 ASR 987. (9) An instruction limiting the right of a conductor to eject a passenger to the necessity of self-defense is misleading. Frank v. Monongahela Valley Tract. Co., 75 W. Va. 364, 83 SE 1009. [b] Instructions held not misleading. (1) Maryland, etc., R. Co. v. Tucker, 115 Md. 43, 80 A 688; Jones v. Missouri, etc., R. Co., (Tex. Civ. A.) 157 SW 213 (as to identification of purchaser of ticket); Southern Kansas R. Co. v. Wallace, (Tex. Civ. A.) 152 SW 873 (as to contributory negligence); Atchison, etc., R. Co. v. Cuniffe, (Tex. Civ. A.) 57 SW 692. (2) An instruction that if the conductor ejected plaintiff, and used more force than was reasonably necessary, and "thereby" wantonly and maliciously injured and humiliated her, as charged, the jury should find for her, was not objectionable as declaring the use of more than reasonably necessary force to be of itself a wanton and malicious injury and humiliation. Chicago Cons. Tract. Co. v. Mahoney, 230 Ill. 562, 82 NE 868. (3) An instruction telling the jury to find for plaintiff, if they believed that his intestate was on defendant's train in such a state of intoxication as to render him incapable of caring for himself, and defendant's servants, knowing such condition, negligently ejected him at a place and under such circumstances as necessarily or probably to endanger his life by passing trains, does not require the jury to believe, in order to find for plaintiff, that his intestate was put off by force, as the word "ejected" does not imply the use of force. Bohannon v. Southern R. Co.. 112 Ky. 106, 65 SW 169, 23 KyL 1390. (4) An instruction that a railroad company transporting passengers was required to use the highest degree of care for their safety, and was bound not to cause mental anguish, humiliation, or shame to a passenger, as well as to care for his physical safety, was not objectionable as misleading and calculated to cause the jury to believe that, although defendant's conductor had a right to eject plaintiff's wife from the train in question, in doing so he must not have caused her to suffer humiliation or shame, even though the act of removing her would necessarily cause humiliation and shame. Missouri, etc., R. Co. v. Morgan. (Tex. Civ. A.) 138 SW 216. 55. Southern R. Co. v. Wildman, 119 Ala. 565, 24 S 764; Little Rock R., etc., Co. v. Dobbins, 78 Ark. 553, 95 SW 788. [a] Ilustration.-In the absence of evidence that a carrier exercised diligence or care in employing a brakeman who threw a passenger off a train, an instruction that, if the carrier believed the brakeman a fit person, the jury might consider that fact in mitigation of damages is abstract. Southern R. Co. v. Wildman, 119 Ala. 565, 24 S 764. 56. Maryland, etc., R. Co. v. Tucker, 115 Md. 43, 80 A 688; Beck v. Quincy, etc., R. Co., 129 Mo. A. 7, 108 SW 132; International, etc., R. Co. v. Hood, 55 Tex. Civ. A. 334, 118 SW 1119. [a] Instructions held not conflicting.-(1) An instruction, in a passenger's action for personal injuries by being ejected, that, if defendant's agents struck and beat plaintiff as alleged in plaintiff's declaration," the jury should consider physical and mental suffering in allowing damages, did not, by using the quoted phrase, conflict with a previous part of the instruction that the finding should be based on all the evidence in the case, and was not misleading. Maryland, etc., R. Co. v. Tucker, 115 Md. 43, 80 A 688. (2) An instruction that, if plaintiff offered to pay his fare after he had refused to pay, and the conductor had signaled the train to stop to remove plaintiff, a subsequent offer to pay fare did not entitle plaintiff to be carried on the train, was not in conflict with a charge which made the right of plaintiff to continue on the train after he had failed to pay his fare when first demanded to depend on his subsequent tender of fare, an offer to pay fare, not accompanied by a tender of the money, being insufficient to put the conductor in the wrong in going on with the expulsion. Beck v. Quincy, etc., R. Co., 129 Mo. A. 7, 108 SW 132. 57. Seaboard Air Line R. Co. v. Scarborough, 52 Fla. 425, 42 S 706; Chicago Cons. Tract. Co. v. Mahoney, 230 Ill. 562, 82 NE 868; Gulf, etc., R. Co. v. Bunn, 41 Tex. Civ. A. 503, 95 SW 640; Atchison, etc., R. Co. v. Cuniffe, (Tex. Civ. A.) 57 SW 692. [a] Illustrations.-(1) An instruction that if the passenger, after he left the train, told the conductor he could get the money if he would allow him to get back on the train, but the conductor refused to allow him to reënter the train and pay his fare, the passenger might recover damages, was not erroneous, when construed in connection with a charge that, if the passenger, when told that his ticket was not valid. made no offer to pay his fare or request for time to get the money with which to pay it, he became a trespasser, and defendant had a right to eject him from the train. Gulf, etc.. R. Co. v. Bunn, 41 Tex. Civ. A. 503, 95 SW 640. (2) Where the court restricted the damages to mental suffering, there being evidence that plaintiff was rudely ejected, there was no error in instructing the jury in a special charge that they might look to all the surroundings in determining the amount of damages. Atchison, etc., R. Co. v. Cuniffe, (Tex. Civ. A.) 57 SW 692. Errors in instructions cured by giving other instructions see generally Trial [38 Cyc 17821.. 58. Warfield v. Louisville, etc., R. Co., 104 Tenn. 74, 55 SW 304, 78 Am SR 911. • [a] Illustration.-Where, in an action by a girl fifteen years old and her niece seven years old for a wrongful ejection from a train, there was evidence that the aunt had ten dered insufficient fare for the niece, an instruction to find for the railroad company if the younger child was in the elder's charge and control, and the latter failed to pay the former's fare, is sufficient, without a more specific statement as to the meaning of "charge and control," in the absence of a request for more specific instructions. Warfield V. Louisville, etc., R. Co., 104 Tenn. 74, 55 SW 304, 78 AmSR 911. 59. Maryland, etc., R. Co. V. Tucker, 115 Md. 43, 80 A 688; Virginia, etc., R. Co. v. Hill, 105 Va. 729, 54 SE 872, 6 LRANS 899; Vassau v. Madison Electric R. Co., 106 Wis. 301, 82 NW 152. [a] Illustrations.-(1) In a passenger's action for personal injuries by being ejected after he had refused to leave the car platform, where the undisputed evidence showed that all passengers were given a reasonable opportunity to alight, it was error to refuse a requested instruction that. if all the passengers except plaintiff left the car, and plaintiff had a reasonable time to get off and failed so to do, he ceased to be a passenger, and defendant was not under the obligations of a carrier to him, the prayer not being defective for not requiring that plaintiff have the "opportunity" as well as the time to get off. Maryland, etc., R. Co. v. Tucker, 115 Md. 43, 80 A 688. (2) Where a ticket agent, by mistake, gave plaintiff a ticket to an intermediate point, and on his refusal to pay fare beyond the intermediate point he was ejected by the conductor, assisted by a passenger, and in an action for the ejection it appeared that plaintiff resisted efforts to eject him, and that after he was ejected he was injured in an altercation with the passenger, and the court instructed that defendant was not liable for any injury resulting from plaintiff's resistance unless it used more force than was necessary to overcome it, it was error to refuse requested instructions that plaintiff could not recover for injuries to which his own negligence or default proximately contributed, and that the conductor committed no tort or trespass if he used no more than necessary force, as the instructions should have distinguished between necessary force in ejecting plaintiff and the injuries after ejection. Virginia, etc., R. Co. v. Hill, 105 Va. 729, 54 SE 872, 6 LRANS 899. 60. Ark.-Little Rock R., etc., Electric Co. v. Dobbins, 78 Ark. 553, 92 SW 788. V. Ill. Chicago Cons. Tract. Co. Mahoney, 230 I11. 562, 82 NE 868. Mich. Johnson v. Detroit, etc., R. Co., 130 Mich. 453, 90 NW 274. Mo.-Carmody v. St. Louis Transit Co., 122 Mo. A. 338, 99 SW 495. S. C.--Jordan v. Southern R. Co., 100 S. C. 284, 84 SE 871. [a] Illustrations.—(1) Where defendant requested an instruction that, if plaintiff went on the car with the intention of continuing a previous controversy with the conductor, he did not become a bona fide passenger and could not recover damages for such ejection, defendant was not prejudiced by a modification of the instruction to the effect that, if he went on the car with the expectation of being put off. he did not become a bona fide passenger and could not recover damages for wounded feelings and pain of mind for being ejected. Little Rock R., the existence or nonexistence of facts in issue;69 and under the statutes in some jurisdictions, if the instruction contains an expression of opinion by the court on a controverted issue, it requires the granting of a new trial.70 Conformity to pleadings and issues. The instructions must also conform and be confined to the issues made by the pleadings and evidence, and on which the case has been tried." An instruction is erroneous which is not pertinent to the issues, as where it charges on a theory not in issue," or ignores or omits to charge on a material matter in issue; but etc., Electric Co. v. Dobbins, 78 Ark. | senger would under given circum553, 95 SW 788. (2) Instructions requested by defendant to the effect that, if the passenger failed to pay her fare or present a transfer the conductor could eject her, were properly modified by the words "subject to the limitation elsewhere laid down in these instructions," such limitations referring to the carrier's duty not to eject her recklessly, etc. Chicago Cons. Tract. Co. v. Mahoney, 230 II. 562, 570, 82 NE 868. (3) In an action for ejection and arrest of a passenger, the modification of a requested instruction that plaintiff must show by a preponderance of the evidence that the carrier had expressly authorized its agent or agents to cause the arrest, by adding the words "or impliedly" after the word "expressly," was not prejudicial to the carrier. Carmody v. St. Louis Transit Co., 122 Mo. A. 338, 99 SW 495. 61. Seaboard Air Line R. Co. v. Scarborough, 52 Fla. 425, 42 S 706. 62. Quigley v. Gulf, etc., R. Co., (Tex. Civ. A.) 142 SW 633. 63. Gallegly v. Kansas City, etc., R. Co., 83 Miss. 171, 35 S 420; International, etc., R. Co. v. Hood, 57 Tex. Civ. A. 497, 122 SW 569. 64. Atlantic Coast Line R. Co. v. Thomas, 14 Ga. A. 619, 82 SE 299; Missouri, etc., R. Co. v. Dice, (Tex. Civ. A.) 168 SW 478; El Paso Electric R. Co. v. Alderete, 36 Tex Civ. A. 142, 81 SW 1246. 65. Choctaw, etc., R. Co. v.. Hill, 110 Tenn. 396, 75 SW 963. [a] Illustration.-An instruction that, whenever the element of malice or oppression, or a reckless disregard of the rights of others, enters into a transaction, and when the act is done in the strict line of duty of the conductor, but under a state of facts not justifying the act, and in a wrongful or perhaps careless manner. the law authorizes exemplary damages, is not objectionable because of the use of the phrase, "and when the act is done in the strict line of duty of the conductor"; and the charge is not erroneous because of the use of the expression "careless manner," the word "careless" being used in the sense of "reckless." Choctaw, etc., R. Co. v. Hill, 110 Tenn. 396, 75 SW 963. Harmless error in instructions see infra § 1228. 66. See supra § 1225. 67. St. Louis, etc., R. Co. v. Day, 86 Ark. 104, 110 SW 220; Rosenkovitz v. United R., etc., Co., 108 Md. 306, 70 A 108. 68. Ala.-Louisville, etc.. R. Co. v. Bizzell, 131 Ala. 429, 30 S 777. Mich. Butler v. Detroit, etc., R. Co., 138 Mich. 206, 101 NW 232. Miss.-Mobile, etc., R. Co. v. Jackson, 92 Miss. 517, 46 S 142. S. C.-Levan v. Atlantic Coast Line R. Co., 86 S. C. 514, 68 SE 770. Tex.-Houston, etc.. R. Co. v. Ritter, 16 Tex. Civ. A. 482. 41 SW 753. [a] Illustrations.-(1) Punitive damages are not recoverable as a matter of right, but their imposition is discretionary with the jury, and therefore a charge is properly refused as being erroneous which instructs the jury that plaintiff in an action against a railroad company for his wrongful ejection as a pas stances be entitled to recover punitive damages. Louisville, etc., R. Co. v. Bizzell, 131 Ala. 429, 30 S 777. (2) Where in an action by a passenger for ejection from defendant's car by its motorman the severity of plaintiff's injuries is contested, it is error for the court to charge that defendant does not dispute that plaintiff was injured as alleged, but bases its defense on its nonliability for the injury. Butler v. Detroit, etc., R. Co., 138 Mich. 206, 101 NW 232. (3) In an action against a railroad company for the death of a drunken passenger who was drowned after alighting, it was error to instruct that the jury should not consider his drunkenness, but should view his conduct in the same light as they would that of a sober man in similar circumstances. Mobile, etc.. R. Co. v. Jackson, 92 Miss. 517, 46 S 142. 69. Nashville, etc., R. Co. V. Moore, 148 Ala. 63, 41 S 984; Louisville, etc., R. Co. v. Bizzell, 131 Ala. 429, 30 S 777; Illinois Cent, R. Co. v. Davenport, 177 Ill. 110, 52 NE 266 [aff 75 111. A. 579]. 70. See statutory provisions. [a] In Georgia an instruction, "it is alleged that the defendant company was negligent in carrying her beyond the point of her destination, and in putting her off at an unsuitable place in the woods, or putting her off as set out in the declaration, and as shown by the proof," is open to the criticism that it contains an expression of opinion by the court on the controverted issue in the case and therefore requires the granting of a new trial. Louisville, etc., R. Co. v. Ogles, 142 Ga. 720, 722, 83 SE 681 (under Civ. Code § 4863). 71. Ala.—Birmingham R. Light, etc., Co. v. Lee, 153 Ala. 386, 45 S 164. Ga.-Savannah, etc., R. Co. v. Godkin, 104 Ga. 655, 30 SE 378, 69 Am SR 187. V. Ind.-Terre Haute, etc.. R. Co. v. Pritchard, 37 Ind. A. 420, 76 NE 1070. Ky.-South Covington, etc., R. Co. v. Burns, 150 Ky. 348, 150 SW 343. Miss. Gallegly Kansas City, etc., R. Co., 83 Miss. 171, 35 S 420. Mo.-McQuerry v. Metropolitan St. R. Co., 117 Mo. A. 255, 92 SW 912; Ickenroth v. St. Louis Transit Co.. 102 Mo. A. 597. 77 SW 162: Gotwald v. St. Louis Transit Co., 102 Mo. A. 492, 77 SW 125. N. Y.-Huba v. Schenectady R. Co., 85 App. Div. 199, 83 NYS 157. Tex.-St. Louis, etc., R. Co. v. McAnellia, (Civ. A.) 110 SW 936. Utah. Slatter V. Oregon Short Line R. Co.. 39 Utah 596, 118 P 831. Wash. Bennett v. Seattle Electric Co.. 56 Wash. 407, 105 P 825. [a] Illustrations.-(1) An instruction that in assessing damages the jury were authorized in their best judgment to award a fair and reasonable compensation for any physical pain or mental suffering that they might believe plaintiff had suffered, and also as a punishment to defendant. if they believed such damages should be awarded, was not improper where there was a count for willfulness. Birmingham R. Light, etc., Co. v. Lee, 153 Ala. 386. 45 S 164. (2) Where the complaint 73 72 74 in an action for injuries sustained by a passenger ejected from a street car alleged that plaintiff was unlawfully ejected by violence, but did not aver that unnecessary violence was used, an instruction that the company had no right to use unnecessary violence in removing him was erroneous as allowing a verdict for plaintiff on the ground that he was lawfully ejected, but that unnecessary force was used. Huba v. Schenectady R. Co., 85 App. Div. 199, 83 NYS 157. [b] A charge on exemplary damages, where requested, is proper in an action against the carrier for assault and battery on a passenger in a street car who is maliciously assaulted by the conductor. Ickenroth v. St. Louis Transit Co., 102 Mo. A. 597, 77 SW 162. [c] An instruction including shame and humiliation as an element of damages is proper, although it is not specifically pleaded, or no direct testimony on that point is given. Berger v. Chicago, etc., R. Co., 97 Mo. A. 127, 71 SW 102. 72. Somerfield v. St. Louis Transit Co., 108 Mo. A. 718, 84 SW 172; Ray v. United Tract. Co., 96 App. Div. 48, 89 NYS 49. 73. Wabash R. Co. v. Kingsley, 177 11. 558, 52 NE 931 [rev 78 III. A. 236]; Osteryoung v. St. Louis Transit Co., 108 Mo. A. 703, 84 SW 179; Ruebsam v. St. Louis Transit Co., 108 Mo. A. 437, 83 SW 984. [a] Illustrations.-(1) Where the declaration did not charge negligence but alleged that plaintiff was injured by the willful and wanton acts of defendant's servants, instructions authorizing a verdict for plaintiff "if the jury believe defend ant is guilty of the negligence charged in the declaration" were error. Wabash R. Co. v. Kingsley, 177 I. 558, 52 NE 931 [rev 78 Ill. A. 236]; Ruebsam v. St. Louis Transit Co., 108 Mo. A. 437, 83 SW 984. (2) Where a petition in an action against a street railroad company alleged that the conductor of defendant's car on which plaintiff was a plaintiff and passenger assaulted ejected him from the car and abused him, calling him profane names in a loud voice, an instruction authorizing the jury to find for plaintiff if the conductor cursed plaintiff and called him vile names was erroneous as authorizing a recovery for mere words unaccompanied by physical violence, which was not counted on as an independent cause of action. Osteryoung v. St. Louis Transit Co., 108 Mo. A. 703, 84 SW 179. 74. Ala.-Mobile St. R. Watters. 135 Ala. 227, 33 S 42. Cal. Clare v. Northwestern Pac. R. Co., 21 Cal. A. 214, 131 P 323. Co. V. Ky. Chesapeake, etc.. R. Co. V. Crank, 128 Ky. 329. 108 SW 276, 32 KyL 1202. 16 LRANS 197. Mo.-Ferguson v. Missouri Pac. R. Co., 177 SW 616. N. Y.-Bough v. Metropolitan St. R. Co., 82 App. Div. 215, 81 NYS 771, 13 NYAnnCas 56. Pa.-Iliff V. Philadelphia Rapid Transit Co., 17 Pa. Dist. 454. [a] Illustrations.-(1) An instruction in an action for the wrongful ejection of a passenger that, if the it is not error to omit to charge on a matter not in issue.75 [§ 1227] c. Verdict and Findings. The verdict and findings in an action for a wrongful ejection are governed by the rules applicable thereto in civil actions generally." The verdict or findings should be in accord with the issues and the evidence;77 and where the verdict is contrary to the weight of the evidence, the court may grant a motion for a new trial.78 A verdict for defendant under a mere negligence count does not in all cases acquit him of willful or wanton conduct,79 but where the two counts present identical issues of fact, the doctrine of error without injury may apply. A judgment cannot be entered on findings which conflict with each other or with the general verdict.81 80 [§ 1228] 6. Appeal and Error. The rules applicable to appeals in civil cases generally govern questions of appeal and error in an action for a wrongful ejection.82 Thus a verdict or judgment which there is evidence to support will not ordinarily be disturbed on appeal,83 and will not be reversed for harmless error, as in the giving or refusing of instructions.84 IX. PERFORMANCE OF CONTRACT OR DUTY TO TRANSPORT [§ 1229] A. In General.85 Where a person purchases a ticket for passage on a train or car, the company assumes the relation of common carrier toward him, and thereby assumes to perform all the duties of such carrier,86 and it is immaterial so far as its liability for injuries is concerned whether passenger after the ejection so conducted himself as to expose himself to overexcitement, overexertion, or heat or dust, notwithstanding a prior warning, there could be no recovery was properly refused for ignoring the proper standard of conduct of a reasonably prudent man. Clare V. Northwestern Pac. R. Co., 21 Cal. A. 214, 131 Р 323. (2) In an action by a passenger for injuries caused by falling or being thrown from the platform of a car, where the conductor had put him, an instruction fixing the liability of defendant regardless of whether or not plaintiff exercised ordinary care to prevent the accident was prejudicial error. Chesapeake, etc., R. Co. v. Crank, 128 Ky. 329, 108 SW 276, 32 KyL 1202, 16 LRA NS 197. (3) Where in an action for ejecting a passenger plaintiff alleged that the ejection was without any fault or negligence on his part, which was denied by the answer. and proof of misconduct of plaintiff was introduced, it was error to refuse to submit the issue on the ground that the only defense alleged or stated in defendant's opening was that plaintiff was not a passenger at the time of his ejection. Bough v. Metropolitan St. R. Co.. 82 App. Div. 215, 81 NYS 771, 13 NYAnnCas 56. Instructions ignoring issues and evidence in actions see generally Trial [38 Cyc 1627 et seq]. 75. Illinois Cent. R. Co. v. Davenport, 177 II. 110, 52 NE 266 [aff 75 Ill. A. 579]. [a] Illustration.-In an action for wrongful ejection of a passenger from a freight train, and assault by the trainmen, in which the question of the duty of a passenger to comply with the company's regulations in entering a car provided for passengers, and at the door for the use of passengers, was not involved, it was not error to omit to instruct on that issue. Illinois Cent. R. Co. v. Davenport. 177 I. 110, 52 NE 266 [aff 75 111. A. 579]. Refusal to charge on matter not in issue see supra text and note 63. 76. See generally Trial [38 Cyc 1868]. 77. Eylenfeldt v. United R. Co., 28 Cal. A. 56, 151 P 293; Atlantic Coast Line R. Co. v. Thomas, 14 Ga. A. 619, 82 SE 299 (verdict held sustained by the evidence). 78. Louisville, etc.. R. Co. V. Perkins, 144 Ala. 325. 39 S 305. 79. Kimbrell v. Louisville. etc., R. Co., (Ala.) 67 S 586; Harless v. Southwest Missouri Electric R. Co., 123 Mo. A. 22. 99 SW 793. [a] Construction of verdict.Where in an action against a street car company for ejection of a child for failure to pay fare the jury were these duties arise by express stipulation or by a required to find that the act was of a verdict for plaintiff that 80. Kimbrell V. Louisville, etc., 81. Loy v. Northern Pac. R. Co., 68 Wash. 33, 122 P 372; Di Benedetto v. Milwaukee Electric R., etc.. Co., 149 Wis. 566, 136 NW 282. 82. See generally Appeal and Error 3 C. J. p 256. 83. Illinois Cent. R. Co. v. Davenport, 177 111. 110, 52 NE 266 [aff 75 Ill. A. 579]. [a] Relation of passenger and carrier. On appeal from a judgment in an action for wrongful ejection of a passenger, the supreme court will not determine whether the evidence was sufficient to show that the relation of passenger and carrier existed. Illinois Cent. R. Co. v. Davenport, 177 Ill. 110, 52 NE 266 [aff 75 III. A. 5791. 84. Atlanta Cons. St. R. Co. v. [a] Illustrations.-(1) In an ac- 85. Cross-references: Statutory and municipal regulations of railroads as to accommodations and train service see Railroads [33 Cyc 648 et seq]. 86. El Paso, etc., R. Co. v. Landon, 58 Tex. Civ. A. 397, 124 SW 744. Nature and effect of ticket generally see supra § 1117. 87. El Paso, etc., R. Co. v. Landon, 58 Tex. Civ. A. 397, 124 SW 744. Liability for personal injuries see infra §§ 1294-1322. 88. Taxicab Co. v. Grant, 3 Ala. A. 393, 57 S 141. [a] Acts not waiver.-Where defendant contracted to carry plaintiff and his companions in an automobile from one place to another, and the automobile broke down, and defendant failed within a reasonable time after being informed of the accident to carry plaintiff and his companions, the act of plaintiff in leaving the automobile and walking back was not a waiver of performance. Taxicab Co. v. Grant, 3 Ala. A. 393, 57 S 141. 89. Ala. Taxicab Co. v. Grant, 3 Ala. A. 393, 57 S 141. Mich. Johnson v. Michigan United R. Co., 153 Mich. 65, 116 NW 529. Nev.-Burrus v. Nevada-CaliforniaOregon R. Co., 38 Nev. 156, 145 P 926. S. C.-Beckham v. Southern R. Co., 50 S. C. 25, 27 SE 611. Tenn.-De Glopper v. Nashville R., etc., Co., 123 Tenn. 633, 134 SW 609, 33 LRANS 913. Tex. Missouri, etc., R. Co. v. Stogner, (Civ. A.) 163 SW 319; Beaumont. etc., R. Co. v. Bishop, (Civ. A.) 160 SW 975. [a] Estoppel of carrier.-A carrier is not estopped to deny a pas senger's right to transportation contrary to the terms of his contract by reason of acts of its conductor in previously accepting such contract. Johnson v. Michigan United R. Co., 153 Mich. 65, 116 NW 529. [b] Transportation in automobile.Where defendant contracted to carry plaintiff and his companions in an automobile from one place to another and return, and the automobile broke down, and defendant could perform his contract only by sending another automobile for plaintiff and his companions, defendant was under obligation to send out another automobile. Taxicab Co. v. Grant, 3 Ala. A. 393, 57 S 141. [c] Special train.-(1) One contracting and paying for a special train is entitled to the proper service of the train, and the carrier may not. without breaching the contract, move the train to another point or attach to it other cars. Burrus v. NevadaCalifornia-Oregon R. Co.. 38 Nev. 156. 145 P 926. (2) Where after leaving a station the conductor ascertained that at the station there had boarded the train a full coach load of ticket holding passengers more than was 90 doing by an act of God, or of the public enemy, or by the passenger's own conduct, there is a breach of contract for which the carrier is liable in damages. But the holder of a ticket has no cause of action against the company for failing to carry him on his ticket, where he does not demand so to be carried, but from some cause voluntarily pays cash fare to the conductor.91 Information to passengers. In the absence of a request therefor, a carrier is not bound voluntarily to give information to a passenger, 92 but on request it is bound through its ticket agent, or other proper agent, to give a passenger information enabling him to travel in comfort and safety,93 and a passenger has the right to rely on information given by such agent acting within the scope of his employment.94 If such an agent wrongfully refuses information to a passenger on request, or negligently misinforms him, the carrier is liable for the damages caused thereby," but not where such refusal is in regard to matters not within the line of the agent's duties.96 It 95 has also been held that, where a person purchases a ticket with the intention of using a certain train, and the agent of the company knows of his purpose so to do, it is negligence on the latter's part to fail to inform the passenger of the fact that the train will not stop at his station. 97 Rules and regulations. The contract of carriage, however, is subject to all reasonable rules and regulations then in force for the running of trains and the carriage of passengers," 98 and a passenger accepts the undertaking of carriage with the understanding that he will conform to such regulations with respect to the transportation as are appropriate and reasonable.9 99 [§ 1230] B. On Proper Train or Conveyance1. In General. Unless there is a limitation as to the train or car which the purchaser of a ticket may take,1 he may assume that he can take passage on any train or car which under the usual schedules of the road carries passengers and stops at his destination; and in some jurisdictions provision to this Tex.-St. Louis, etc., R. Co. V. White, 99 Tex. 359, 89 SW 746, 122 AmSR 631 and note, 2 LRANS 110, 13 AnnCas 965. permitted by the contract between the railroad company and the charterer of the train, who at said station was refused extra coaches which the company was not bound to fur- "When a railroad company authornish, and the train was stopped fur-izes an agent to sell tickets over its ther on the road and held until the line, such agent has authority and it charterer paid for the use of a coach is his duty, upon application made there added, the company was not to him, to furnish information to perliable for damages. Beckham V. sons desiring to purchase tickets over Southern R. Co., 50 S. C. 25, 27 SE the road he represents as to the 611. proper trains upon which to travel, and whether such trains will stop at the station to which the ticket is sold, and other like information regarding the use of the ticket." St. Louis, etc., R. Co. v. White, 99 Tex. 359, 363, 89 SW 746, 122 AmSR 631, 2 LRANS 110, 13 AnnCas 965. Accommodations according to contract see infra § 1237. 90. Smith v. St. Louis, etc., R. Co., 118 Ark. 291, 176 SW 308; Southern R. Co. v. Daughdrill, 11 Ga. A. 603, 75 SE 925; Beaumont, etc., R. Co. v. Bishop, (Tex. Civ. A.) 160 SW 975; Leclaire v. Tacoma R., etc., Co., 62 Wash. 157, 113 P 268. [a] Excuse for breach.-The fact that a number of persons board a car on which a person is a passenger and demand free transportation which the railroad company is under no obligation to give them, and that the company's employees are unable to eject them because of their number, does not excuse a breach of the contract of carriage between the company and such passenger. Leclaire v. Tacoma R., etc., Co., 62 Wash. 157, 113 P 268. 91. Bethea v. Northwestern R. Co., 26 S. C. 91, 1 SE 372. 92. Johnson v. Seaboard Air Line R. Co., 13 Ga. A. 298, 79 SE 91; Latimer v. St. Louis Southwestern R. Co., 40 Tex. Civ. A. 614, 90 SW 665. "It is no part of the ticket agent's duty to follow passengers up to see that they do not get on the wrong train. His business is in the ticket office, and his duty, so far as passengers are concerned, is ended when he furnishes the means of transportation and gives such information in connection with its use as is necessary to enable the passenger properly to use the ticket. If he is applied to for information in reference to schedules or as to the particular train which the passenger ought to take, it is his duty to give the necessary information, but it is not his duty to volunteer information in reference to these matters to all passengers who apply for tickets, in the absence of some intimation that the information is desired." Johnson v. Seaboard Air Line R. Co., 13 Ga. A. 298, 300, 79 SE 91. 93. Ga.-Johnson v. Seaboard Air Line R. Co., 13 Ga. A. 298, 79 SE 91. Ill-Ohio. etc., R. Co. v. Allender, 59 Ill. A. 620. Ind. Louisville, etc., R. Co. V. Cook. 12 Ind. A. 109, 38 NE 1104. Okl. St. Louis, etc., R. Co. V. Lilly, 153 P 810. S. C.- Schockley v. Southern R. Co., 93 S. C. 533, 77 SE 221; Hunter v. Southern R. Co., 90 S. C. 507, 73 SE 1017. [a] As to name of station.-Where a passenger inquires of a conductor, brakeman, or other employee of the train as to the name of a station at which he is alighting, it is the duty of such employee to give correct information. Louisville, etc., R. Co. v. Cook, 12 Ind. A. 109, 38 NE 1104. [b] As to time of departure of train,—(1) Where a passenger requests a station agent to notify him of the arrival of a train in time to board it, the carrier is liable if he negligently fails so to do. Schockley V. Southern R. Co., 93 S. C. 533, 77 SE 221. (2) But it has been held that, where a person inquired of the agent how long it would be before the train arrived and was told that it was one hour behind time, and missed the train, as it arrived at the station only forty-five minutes late, he had cause of action, as he had no legal right to rely on the statement made by the agent, as he could not infer that the train would not pass until an hour later. Ohio, etc., R. Co. v. Allender, 59 I11. A. 620. no 94. Schockley v. Southern R. Co., 93 S. C. 533, 77 SE 221; Wilcox v. Southern R. Co., 91 S. C. 71, 74 SE 122; Hunter v. Southern R. Co., 90 S. C. 507, 73 SE 1017; Texas, etc., R. Co. v. Conway, (Tex. Civ. A.) 180 SW 666. [a] Correct information.-If railroad station agents undertake to give information to passengers, the information given must be correct_to relieve the company from liability for damages from giving incorrect information. Schockley v. Southern R. Co., 93 S. C. 533, 77 SE 221. [b] Misinformation as to trains A passenger misinformed by a ticket collector that he might take a later train to his destination was not required to know that such train had been taken off by reason of an advertisement of the fact. Wilcox v. Southern R. Co., 91 S. C. 71, 74 SE 122. [c] Unauthorized representation. A carrier of passengers is not liable for illness or humiliation caused plaintiff by its failure to connect with 95. Chicago, etc., R. Co. v. Floyd, (Ark.) 171 SW 913; Lilly v. St. Louis, etc., R. Co., 31 Okl. 521, 122 P 502, 39 LRANS 663; Wilcox v. Southern R. Co., 91 S. C. 71, 74 SE 122; Hasseltine v. Southern R. Co., 75 S. C. 141, 55 SE 142, 6 LRANS 1009. [a] Where a carrier is fully advised of quarantine, and a passenger asks the conductor of one of its trains for information on the subject, it is liable for failing to give him information as to the quarantine, which would manifestly make his uninterrupted journey impossible. Hasseltine v. Southern R. Co., 75 S. C. 141, 55 SE 142, 6 LRANS 1009 and note. [b] Refusal to instruct.-A carrier is liable where a passenger is carried beyond the junction point of her route and to a town where she is required to take passage on another railroad and to expend an additional sum for fare, and loses time, because of the carrier's servant's refusal to instruct her at her request. Lilly v. St. Louis, etc., R. Co., 31 Okl. 521, 122 P 502, 39 LRANS 663. 96. Missouri, etc., R. Co. v. Kendrick, (Tex. Civ. A.) 32 SW 42. [a] Illustration. A carrier is not liable because the agent at a depot at which a passenger was waiting for a train was cross and refused to tell her the name of the town or where she could find a hotel, and on her asking for water merely pointed to a tank some distance away, or because men and boys around the station jeered and laughed at her. | Missouri, etc., R. Co. v. Kendrick, (Tex. Civ. A.) 32 SW 42. 97. St. Louis, etc., R. Co. v. Adcock, 52 Ark. 406, 12 SW 874. 98. See supra §§ 1070-1077. 99. See supra § 1073. Disobedience of rules as contributory negligence of person injured see infra § 1487. 1. 2. See supra § 1141. Ga-Southern R. Co. v. Huck aba, 14 Ga. A. 311, 80 SE 697; Southern R. Co. v. Flanigan, 10 Ga. A. 745, 74 SE 85. Ind.-Pittsburg, etc., R. Co. V. Berryman, 11 Ind. A. 640, 36 NE 728. N. Y.-Gale v. Delaware, etc.. R. Co., 7 Hun 670; McMahon v. Third Ave. R. Co., 47 N. Y. Super. 282. R. S. C.-McKeown V. Southern Co., 98 S. C. 338, 82 SE 437. |