Louisville and Nashville Railroad Company v. Weaver.

pose as the agent of the consignor or consignee and not as carrier; and that the company would not be responsible for any loss, damage or injury to the property after the same shall have been sent from its warehouse or station. Though this rule, brought to the knowledge of the shipper, might not limit the liability imposed by a specific through contract, yet it would tend to rebut any inference of such a contract from the receipt of goods marked for a place beyond the road of the company.

"The doctrine invoked by the plaintiff's counsel against the limitation by contract of the common-law responsibility of carriers has no application. There is, as already stated, no common law responsibility devolving upon any carrier to transport goods over other than its own lines. and the laws of Illinois restricting the right to limit such responsibility do not therefore touch the case. Nor was the common-law liability of the defendant corporation enlarged by the fact that a notice of the charges for through transportation was posted in the defendant's station-house at Chicago. Such notices are usually found in stations on lines which connect with other lines, and they furnish important information to shippers, who naturally desire to know what the charges are for through freight as well as for those over a single line. It would be unfortunate if this information could not be given by a public notice in the station of a company without subjecting that company, if freight is taken by it, to responsibility for the manner in which it is carried on intermediate and connecting lines to the end of the route,

"Nor was the liability of the company affected by the fact that the notice on the margin of the receipt stated that the ticket given might be exchanged for a through bill of lading.' It would seem to indicate that the receipt was not deemed of itself to constitute a through contract. The through bill of lading may also have contained a limitation as to the extent of the route over which the company would undertake to carry the cattle. Besides if weight is to be given to this notice as characterizing the contract made, it must be taken with the rule to which it also calls attention, that the company assumed responsibility only for transportation over its own line.

"It follows from the views expressed that the court below erred in its charge that the ticket or bill of lading was a through contract, whereby the defendant company agreed to transfer the cattle to Philadelphia, and safely deliver them there to the order of Myrick.

"Our attention has been called to some decisions of the Supreme Court of Illinois, which would seem to hold that a railroad company which receives goods to carry, marked for a particular destination, though beyond its own line, is prima facie bound to carry them to that place and deliver them there; and that an agreement to that effect is implied by the reception of goods thus marked. Illinois Central Railroad Co. v. Frankenberg, 54 Ill. 88; s. c., 5 Am. Rep. 92; Illinois Central Railroad Co. v. Johnson, 34 Ill. 389.

"Assuming that such is the purport of the decisions, they are not binding upon us. What constitutes a contract of carriage is not a question of local law, upon which the decision of a State court must control. It is a matter of general law, upon which this court will exercise its own judgment. Chicago City v. Robbins, 2 Black. 429; Railroad Co. v. National Bank, 102 U. S., 14, and Hough v. Railway Co., 100 id. 213.

**If the doctrine of the Supreme Court of Illinois, as to what constitutes a contract of carriage over connecting lines of roads is sound, it ought to govern, not only in Illinois but in other States; and yet the tribunals of other States, and a majority of them, hold the reverse of the Illinois court, and coincide with the views of this court. Such is the case in Massachusetts. Nutting v. Railroad Co., 1 Gray, 502; Burroughs v. Railroad Co., 100 Mass. 26. If we are to follow on this subject the ruling of the State courts, we should be obliged to give a different interpretation to the same act the reception of goods marked for a place beyond the road of the company in different States, holding it to imply one thing in Illinois and another in Massachusetts."

See, to same effect as the principal case, Balt. & Ohio R. Co. v. 647: s. c., 38 Am. Rep. 617.

Campbell, 36 Ohio St.

A carrier receiving goods marked for delivery beyond the end of his line is, in the absence of a special agreement, only responsible for safe carriage over his line and safe delivery to the next carrier. Knight v. Providence & Worcester R. Co., 13 R. I. 572.

To same effect, St. Louis Ins. Co. v. St. Louis, etc., R. Co., 104 U. S.146; Grover & Baker Sewing Machine Co. v. Mo. Pac. Ry. Co., 70 Mo. 672; s. c., 35 Am. Rep. 444; Grindle v.

Matthews v. State.

Eastern Express Co., 67 Me. 317; s. c., 24 Am. Rep. 31; Burroughs v. Norwich, đ Worcester R. Co., 100 Mass. 26; s. c., 1 Am. Rep. 78; Crawford v. So. R. Ass'n, 51 Miss. 222; s. c, 24 Am. Rep. 628. Contra: Erie Ry. Co. v. Wilcox, 84 Ill. 239; s. c., 25 Am Rep. 451, Merchants' Dispatch and Transp. Co. v. Moore, 88 Ill. 136; s. c., 30 Am. Rep. 541; Mobile & Girard R. Co. v. Copeland, 63 Ala. 219; s. c., 35 Am. Rep. 13; Mulligan v. Il. Cent R. Co., 36 Iowa, 181; s. c., 14 Am. Rep. 514; East Tennessee, etc., R. Co.v. Rogers, 6 Heisk. 143; s. c., 19 Am. Rep. 589; Nashua Lock Co. v. Worcester & Nashua R. Co., 48 N. H. 339; s. c., 2 Am. Rep. 242.

Hutchinson says (Carr., § 148), "the American courts are about equally divided " on this

The impanelling of two jurors, on a trial for murder, while the prisoner was handcuffed and in the dock at the rear of the court-room, but within sight and hearing, is not fatal error.

*

(ONVICTION of murder. The opinion states the case.

CONVICTION

Attorney-General Lea, for State.

J. T. Moss, for Matthews.

DEADERICK, C. J. [Omitting minor matter.] Several errors are assigned as grounds for reversal of the judgment. First, it is alleged that the prisoner was absent when two of the jurors were elected. It appears that ten jurors had been elected and the panel was exhausted; thereupon the judge ordered other jurors to be summoned, and prisoner was removed from within the bar to the prisoner's dock within the court-room, to await the sheriff's return of the additional panel of jurors. While the prisoner was in the dock, two jurors who had failed to appear on the call of the first panel came into the court-room and were passed by the attorney-general and accepted by defendant's counsel. During this time the prisoner, as stated by affidavit of one of his counsel, was handcuffed and in his dock, a distance of forty or fifty feet from the jury box, but took his seat by his counsel about the time the last of the two jurors was accepted by his counsel.

See State v. Lewis (19 Kans. 260), 27 Am. Rep. 113.

Louisville, Nashville & Great Southern Railroad Company v. Harris.

The record shows that this dock or prisoner's bench is about thirty feet from the judge's stand, and in full view of the whole court and jury, and defendant was in position to see and hear all that was done, and no objection made by defendant's counsel, they having exhausted nineteen challenges. We think the prisoner was in fact and in contemplation of law, present at this proceeding, and had the opportunity to interpose objection to either juror if he had desired to do so.

A prisoner should not, during his trial, be manacled or handcuffed, but should be left free from shackles, unless some such restraint should be necessary to prevent escape. In this case the proceedings had been temporarily suspended to allow the sheriff time to summon additional jurors, and he removed the prisoner to the dock in the rear of the court-room, and there handcuffed him, no doubt to prevent escape. While there the two jurors appeared who had failed to answer upon the first call, and were passed by the attorney-general and accepted by prisoner's counsel, before he had returned to the side of his counsel -- the last one being accepted by them about the time the prisoner seated himself by his counsel — and half an hour before the jury was sworn, affording ample time for objection, and all that occurred being at the time within the view and hearing of the prisoner. It was only intended he should be fettered during the suspension of proceedings in making up the jury. But by inadvertence the jurors were accepted by his counsel before he took his seat beside them. This is not in conflict with the humane spirit of the law that requires a prisoner to be unfettered during his trial.

[Omitting other matters.]

Affirmed.

LOUISVILLE, NASHVILLE & GREAT SOUTHERN RAILROAD CO. v.

HARRIS.

(9 Lea, 180.)

Carrier — ejection of passenger for detaching coupon―tender.

A passenger by railway upon a commutation coupon ticket conditioned to be shown to the conductor on every trip and to be void if the coupons were detached by any other person than the conductor, was proceeding to detach

Louisville, Nashville & Great Southern Railroad Company v. Harris.

a coupon himself, and being warned by the conductor that if he did so he would not accept the coupon, persisted, offered the conductor the coupon, refused to show the ticket, and profanely dared the conducter to put him off. Held, that this would have justified the conductor in ejecting him, and that the passenger's subsequent tender of the ticket and detached coupon, before the ejection was complete, but in an insulting, profane and boisterous manner, would not have restored the passenger's right to complete the journey.*

A

CTION of damages for unlawful ejection from railway train. The opinion states the case. The plaintiff had judgment

below.

Cole & Sweeney, for railroad.

Alonzo Hawkins, for Harris.

COOPER, J. Harris brought this action against the railroad company, and recovered damages for being ejected from the train. The company appealed in error.

Harris was travelling as agent for Johnson, Newman & Co., upon a commutation ticket issued to that company for several thousand miles, with coupons attached, and put up in the form of a book. The contract expressly provided that the ticket should be shown to the conductor each trip, who will detach such coupons as would represent the number of miles travelled by the holder on his train, and that the coupons would be void if detached by any one but the conductor. Each coupon stated that it was good for a given number of miles, "when not detached from the contract." The plaintiff says he knew that the coupons were void if detached by any other person than the conductor. He got on the train with the commutation ticket to go to a point named about twenty-four miles distant. When he saw the conductor coming on his round for tickets, he took his book from his pocket, and commenced detaching some of the coupons, when the conductor told him he need not do that, for he would not take them. Plaintiff replied, "I guess you will.” The conductor said, "I am employed to do that," and added, "you will pay your fare." Plaintiff replied, "here is my fare," and offered him the detached coupons. Here there is a conflict in the testimony as to what took place. The conductor and another

* See Bland v. So. Pac. R. Co. (55 Cal. 570), 36 Am. Rep. 50; Hofbauer v. Delhi & N. W. R. Co. (52 Iowa, 342) 35 Am. Rep. 278.

Louisville, Nashville & Great Southern Railroad Company v. Harris.

person present say that the conductor asked for the plaintiff's book, which the plaintiff refused to let him have, saying that the conductor might put him off and he would sue the company. The plaintiff, and a witness present also at the time, deny that the book was demanded, but agree that angry words were interchanged between the plaintiff and the conductor. The colloquy wound up by the conductor telling the plaintiff that he must get off at the next station, the plaintiff replying that he would not, and the conductor replying that he would put him off. When the train stopped at the next station, the conductor said to the plaintiff : "This is the station and you must get off." The plaintiff replied: "You will have to put me off." The conductor took hold of the lapel of the plaintiff's coat and jerked him up, but immediately released him, and told plaintiff to get off the train. Plaintiff said he would not do it. The conductor then got behind plaintiff and pushed him along the aisle to the front end of the car, and out of the front door. On the front platform an acquaintance of the plaintiff was standing, and plaintiff called upon him to witness that he had tendered his fare to the conductor. The plaintiff, having his book with the detached coupons in his left hand, held them out to the conductor, and said to him: "Here is my ticket, and I tender you my fare," and with an oath, "I dare you to put me off." The conductor then pushed him off the car on to the platform of the depot. The coupons, it should be added, seem to have been detached by the plaintiff in the presence of the conductor, either wholly or partially.

The plaintiff had a right to be carried to his place of destination in the defendant's train on paying the usual rate of fare on demand, and according to the terms of the contract under which he was travelling. Those terms were that the ticket should be shown to the conductor, who would detach the coupons. It was a technical violation of the contract, by which the coupons were rendered void, for the plaintiff to detach the coupons himself. Upon having his attention called to the fact that it was the conductor's duty to detach the coupons, he should at once have desisted, and handed the book and coupons to the conductor. If he had done so, and the conductor had seen the coupons detached, or could have readily ascertained by inspection that they had been torn from the book, it would have been the duty of the conductor to receive the coupons. But he was clearly not bound to receive the detached