lated body of the deceased was found about twenty-five yards north of the private crossing mentioned, and his hat, a sack and bucket, which he had the night before, were near the place he was put off the train, his hat being nearest the body. Three trains passed the place where his body was, after he was expelled from the passenger train, two going north, one of which passed within about one hour and a half, the other later in night, and the third going south about daylight. It is plain he was not killed by being struck or run over by the passenger train from which he was ejected; for not only was his body found near two hundred yards north of where he was left by it, but a little more than twenty-five yards north of the place on the track where there was the first appearance of blood, showing conclusively the train by which he was killed was going north.

Assuming, as the evidence seems to warrant, that he was killed by one of the north-bound trains, though by which one of the two does not appear, the first inquiry is, whether any legal liability has been fixed upon appellant on account of negligence of those in charge of it; and as there is no evidence showing at what time in the night, or why, he went upon the track in front of a passing train, if he did so voluntarily, nor whether he was in such position at the time of being struck as to make it the duty of those in charge to stop the train, or as to enable them, by the exercise of proper diligence, to discover him in time to prevent a collision, or at all, and consequently none whatever of any negligence or fault on their part, that question must be answered in the negative.

It thus results that whatever cause of action there may be in favor of appellee arises entirely from the conduct of the conductor of the passenger train, and the liability of appellant therefor, if liable at all, is not dependent upon nor increased by the fact that the train by which he was subsequently killed was owned and operated by the same company; for if the act of the conductor was not itself wrongful, it could not be made so by referring it to or connecting it with the independent act of other employees, to whom no wrong can be attributed.

Counsel argue, in effect, that when an intoxicated person offers to go upon a railroad train as passenger, the alternative is presented to the company either to refuse permission, or else, having received him and accepted his fare, to answer in damages for whatever calamity to him may follow his sub

sequent expulsion, though justified by his improper conduct. Although it has been held that a railroad company is not bound to receive and carry a person who is so intoxicated as to be offensive, the power to exclude one from the right of traveling on a train, who offers to pay his fare, and, though intoxicated, has not been guilty of any conduct as passenger forfeiting the right, is always subject to be called in question, and the company cannot therefore be fairly held to a strict exercise of it, except where the rights of others are involved. But even conceding the conductor could have forcibly, and without incurring any legal liability to him, kept the deceased off the train at Lebanon, and committed an error in failing to do it, we do not see how, on that account, the right was impaired, or the duty lessened, to put him off at any place or time afterwards, when his behavior rendered it legal and necessary. And if the deceased, for whose drunken state the company was in no way responsible, acted so as to justify and require his expulsion, it would be a harsh rule to make the company liable, if not otherwise so, merely because the conductor did not assume the risk and responsibility of deciding, even if aware of the fact, that he was too much intoxicated to be allowed to go upon the train at Lebanon. Then, regarding the deceased upon the train by his own volition, which the conductor did not nor was bound to oppose, the main question is, whether the willful neglect of appellant, or its servants in charge of it, to perform any duty it owed to him, was the proximate cause of his death.

The law makes it the duty of a railroad company to use all reasonable care in operating trains for both the safety and protection from molestation and insult of passengers; otherwise, orderly and infirm persons and females, who, upon the faith of such protection, frequently travel unattended, would have no security against turbulent, bad men; and as it is obvious. a train must be run with skill and system in order to assure safety and comfort, the conduct of any one who interferes with the management, or without just cause attempts to do bodily injury to, or put in fear, those in charge, is reprehensible and unlawful. But a railroad company is not required to keep at hand armed police to arrest and confine on a moving train those who violate its necessary rules or do injury to other passengers, nor can the employees neglect their duties, upon the faithful performance of which the safety of all depends, in order to do so. Consequently the only effectual remedy for

or security against disorderly and lawless behavior on board a passenger train is the immediate and summary expulsion of the wrong-doer, and plenary authority of the conductor to do it is universally recognized, and required to be exercised whenever necessary for the safety or protection of either passengers or employees.

It is clear, from the evidence in this case, the conduct of the deceased was such as to justify his expulsion; for he not only, with a hostile purpose, left his proper place, and pursued the conductor into the ladies' car, where he disturbed, alarmed, and offended the passengers, but, baffled in an effort to enter it a second time with the same intent, he wantonly and slyly pulled the bell-rope, whereby the train was stopped between stations. Moreover, his behavior to the conductor was without provocation, and such as to afford to him reasonable grounds to believe he was in danger of bodily harm, if not of losing his life. In fact, the gravamen of the action, as stated in the petition, is not based upon the lack of legal cause for the expulsion, but rather upon the circumstances of time, place, and manner it was done, in view of the alleged physical and mental condition of the deceased. Though the time was at night, it was not too dark to see the railroad track distinctly, nor was the weather either cold or inclement; while it would, in fairness, seem no more than retributive justice that he was put off at the place his own malicious and unlawful act caused the train to stop, especially as the locality was not unsafe.

The question then arises whether, notwithstanding his continued presence on the train was so offensive and dangerous, both to the conductor and other passengers, as to justify and require his expulsion, the paramount duty was imposed upon the company, by reason of the mental and physical condition of the deceased, to carry him to the next station, the nonperformance of which is, in legal contemplation, willful neglect.

It was not enough for the jury in this case to find he was too intoxicated to take care of himself; but, to constitute willful neglect, even if the company was under obligation to look after his safety after he had forfeited his right as passenger, it was necessary that the conductor knew, or had reasonable grounds to believe, not in the language of one of the instructions of the lower court that to put him off the train "would neces. sarily expose him to the danger of death from being run over

by passing trains," but that such would be the natural and probable result of putting him off.

If his actions while on the train, by which alone the conductor could or was required to judge, be taken as evidence of what his actual condition was, he not only had the power of locomotion, as shown by his passing with entire safety to and fro between the cars while the train was in motion, but knew well how to do mischief to others, and was at the same time extremely sensitive of injury to himself. And it seems to us, in the light of the undisputed facts of the case, unreasonable to charge the company with negligence of any degree in expelling him from the train at the time and place it was done. But as it is proper, we will consider the relation and mutual obligations existing between him and the company, as though it was an open question of fact whether the conductor knew, or had reasonable grounds to believe, he was too intoxicated to take care of himself.

It is well settled by this court, and the certain and just execution of the law and welfare of society require it to be settled, that voluntary drunkenness affords no excuse for the commission of crime; nor is it a valid defense to an action for a civil injury. For in every situation and relation an intoxicated person, like others, should be held to the strict observance of the just and salutary rule which requires each one to so use and enjoy his own as not to injure others. It thus becomes lawful for a landlord to expel from his tavern to the street or highway, at any time, a person who, whether intoxicated or not, endangers the safety or molests and insults his guests; and no one would question the right of a housekeeper to eject from his domicile a drunken man who maltreats or offends, by indecent conduct or language, his wife and children, provided no more force be used for the purpose, in either case, than reasonably necessary. Such being a rule of conduct recognized as just and necessary, we do not see why it ought not to be applied, upon the same conditions, for the benefit and protection of passengers on a railroad train, nor why they should be given the right to maintain an action against a railroad company for suffering them to be molested, put in fear, and insulted on a train by drunken men, while denying the company the right, except at its peril, to resort to the only feasi ble means in its power to prevent or stop the wrong being done. Common justice would seem to require either that passengers be left without redress against the company for wrong and in

AM. ST. REP., VOL. XXI. — 22

jury done to them on trains by disorderly and vicious persons, or else that no liability attach or negligence be imputed to the company when the expulsion of the latter is rendered necessary for the safety and protection of the former. Thus the issue in every such case as this is really between the orderly, infirm, and females on the one side, and the turbulent and evil-disposed on the other, and the company has the right to terminate the relation of carrier and passenger between it and the latter class whenever and wherever they lawlessly put in fear, disturb, or insult the former; and in our opinion, if the deceased went into the ladies' car, and there, by his violence and indecent behavior or language, excited, alarmed, or insulted the other passengers, or if he interfered with the management of the train by pulling the bell-rope, or otherwise, or if he threatened, with an opened knife, to take the life or do bodily harm to the conductor, or attempted to deter or intimidate him while in the performance of his duties, the right existed to put him off the train at the place it was done, and all required of the company was to use no more force than reasonably necessary for the purpose, and to place him off the track, out of the way of that train; for although there might be a case where a railroad company would be guilty of willful neglect, in the meaning of the statute, by ejecting, without imperative necessity, a passenger so drunk as to be helpless, when his death would naturally and probably result from agencies other than his own act, then present and impending, the law does not exact care and precaution against the death of one, from remote causes or self-inflicted, whose conduct has afforded legal grounds for his expulsion.

The case of Louisville, C. & L. R. R. Co. v. Sullivan, 81 Ky. 624, 50 Am. Rep. 186, is unlike this. There the only cause for expulsion was the failure, by reason of inability, to pay the fare, which was twenty cents. Here the deceased was able to pay, but threatened violence because he was urged to pay, and compelled the conductor to resort to force to get it. There the delinquent was not turbulent nor offensive to either passengers or employees. Here the deceased not only insulted and alarmed the passengers, but menaced the conductor and imperiled the safety of all on board by causing the train to stop. In that case Sullivan was inhumanely put off in a deep snow, the weather being intensely cold, and on account of his helpless condition, which the conductor knew of, was unable