ASSAULT-EJECTING PASSENGER FROM RAILROAD STATION-MISTAKE OF FACT. COMMONWEALTH v. POWER. [7 Metc. 596; 41 Am. Dec. 465.] In the Supreme Judicial Court of Massachusetts, September, 1844. 1. A Railroad Company may make Reasonable Regulations as to the use of their depot by passengers and others, and may prohibit inn-keepers from coming on their platforms to solicit custom. 2. Assault-Mistake of Fact. - Under such a rule a depot superintendent ejected with violence one H. H. was an inn-keeper who had persistently violated the rule, but on the occasion in question he had entered the depot with a ticket for the purpose of taking the train as a passenger, which purpose was unknown to the superintendent. Held, that the superintendent's mistake excused him from a conviction for assault. Complaint before a justice for an assault and battery alleged to have been committed on one Hall. The defendant Power was superintendent of the Western Railroad Depot at Pittsfield and the other defendants were servants of the company. The inn-keepers of Pittsfield, of whom Hall was one, had been in the habit of coming to the station on the arrival of trains to solicit custom for their houses, and this having become a great annoyance to passengers the superintendent had made a rule and sent written notice thereof to Hall and the other inn-keepers forbidding them from soliciting custom at the depot on pain of being excluded from the platform. Hall had repeatedly violated this rule, and had finally been forbidden to come on the platform at all. On the day of the alleged assault Hall, who had purchased a ticket through another person, came to the station to take the train for Richmond. On his way to the platform he was met by Power, who believing he was going to solicit passengers, told him that he could not go there, and putting his hands on him ordered him away. Hall without showing his ticket or stating that he intended to take passage on the train, undertook to push by Power to the platform. Power, without inquiring as to his purpose, summoned the other defendants, and forcibly ejected Hall from the depot without unnecessary violence, which was the assault complained of. The defendants were convicted before the justices and appealed to the common pleas, where they were again convicted, the court holding that the facts above stated constituted no defence. The judge however reported the facts for the opinion of this court. R. A. Chapman and Colt, for the defendants. Bishop, for the Commonwealth. By court, SHAW, C. J. This is a criminal prosecution instituted against Power and several of his assistants acting under his orders, charging an assault and battery upon the complainant, Timothy Hall. It comes before the court upon a report of the evidence. It appears that the learned judge did not give detailed instructions to the jury, upon the question of law arising in the case; but the evidence being stated the jury were directed that the facts stated did not constitute a defence; and a verdict under that instruction was rendered against the defendants. If it was competent for the jury, consistently with the rules of law to render a verdict for the defendants upon this evidence, then the verdict should be set aside and a new trial granted. It becomes then necessary to inquire what the rules of law are and how they apply to the evidence reported. The court are of opinion that the railroad corporation, both as the owners and proprietors of the houses and buildings connected with the railroad, and as carriers of passengers, have authority to make reasonable and suitable regulations in regard to passengers intending to pass and repass on the road, in the passenger cars, and in regard to all other persons making use of such houses and buildings. This authority is incident to such ownership of the real estate and to their employment as passenger carriers; and all such regulations will be deemed reasonable, which are suitable to enable them to perform the duties they undertake, and to secure their own just rights in such employment; and also such as are necessary and proper to insure the safety and promote the comfort of passengers. The reasonableness of such regulations must in some measure be judged of with reference to the particular depot at which they are adopted. Regulations may be proper and necessary at one of the termini of the road, where there is usually a great throng of passengers and other persons connected with the business of the road which would not be required at a way station, where few people enter or leave the cars and where they stop but a few moments. And we are also of opinion that the regulations thus to be made and enforced are not necessary to be made in the form of by-laws, to be carried into effect by penalties and prosecutions. Such by-laws are rather the reg-· ulations which a corporation have power to make in respect to the government of their own members and of their corporate officers, or of municipal corporations, that exercise, to a limited extent, the powers of government. But the regulations in question are such as an individual, who should happen to be the sole owner of the depots and buildings and of the railroad cars would have power to make, in virtue of his ownership of the estate and of his employment as a carrier of passengers. That a railroad corporation are to be deemed carriers of passengers, and are subject to the duties and entitled to the privileges and powers incident to such employment, seems to be settled by various cases in which suits have been sustained by and against them. They are in this respect on the footing of owners of steamboats. Both are modern modes of conveyance; but the rules of the common law are applicable to them, as they take the place of other modes of carrying passengers.1 An owner of a steamboat or railroad, in this respect, is in a condition somewhat similar to that of an inn-keeper, whose premises are open to all guests. Yet he is not only empowered, but he is bound so to regulate his house, as well with regard to the peace and comfort of his guests, who there seek repose, as to the peace and quiet of the vicinity, as to repress and prohibit all disorderly conduct therein; and, of course, he has a right and is bound to exclude from his premises all disorderly persons and all persons not conforming to the regulations necessary and proper to secure such quiet and good order.2 We are also of opinion that the power which the company thus have to regulate their several depots they may delegate to suitable officers. Indeed, it is the only mode in which a corporation can exercise their powers. And when they have appointed a superintendent with authority by himself and his assistants to have charge of the depot and manage its concerns it is incident to his authority to exclude, or direct the exclusion of persons who persist in violating the reasonable regulations prescribed, and thereby interrupt the officers and servants of the company in the discharge of their respective duties, or annoy passengers. If it be insisted that by opening the doors of their depots the company give an implied license to any and all persons to enter, it may be answered that by thus opening their doors, they do, prima facie, give an implied license to all persons to enter, and no person is a trespasser by merely entering therein. But all such licenses are in their nature revocable, and if actually revoked, and due notice given to an individual or class of individuals, and they still persist in entering, it is without a license and the owner has a right to exclude them by force, if necessary, using no more force than is necessary for that purpose.3 Without such a power the business could not be carried on; because the crowd of persons entering, without intending to take passage, might be so great as to exclude passengers. In regard to the fact that Hall had a ticket at the time and intended bona fide to go in the cars to Richmond, it appears to us that a fact within his own private knowledge, not communicated to the superintendent, when it was in his power to communicate it, can not place the superintendent in the wrong, in a case where he would be otherwise justified. If Hall had repeatedly violated a reasonable regulation in going 1 Jencks v. Coleman, 2 Sumn. 221; Camden & Albany R. Co. v. Burke, 13 Wend. 611; 28 Am. Dec. 488; Pardee v. Drew, 25 Ind. 459; Pickford v. Grand Junction R. Co., 8 M. & W. 372. 1 Markham v. Brown, 8 N. H. 523; 31 Am. Dec. 209. 8 Weaver v. Bush, 8 T. R. 78. upon the platform when expressly prohibited, and if the superintendent had reason to believe that he was repeating such violation, and he gave no notice that he then came there for another purpose, when it was in his power to do so, the superintendent and his assistants, acting on reasonable grounds of belief, must stand on the same ground of justification in this respect, as if Hall had no such purpose. We are, therefore, of opinion that upon the evidence detailed in the judge's report, the jury should be instructed in a manner somewhat as follows: That if Power had been placed in charge of the depot by the corporation as superintendent, he had all the authority of the corporation, both as owners and occupiers of real estate, and also as carriers of passengers, incident to the duty of control and management; that this power and authority of the corporation extended to the reasonable regulation of the conduct of all persons using the railroad, or having occasion to resort to the depots for any purpose. That this power was properly to be executed by a superintendent adapting his rules and regulations to the circumstances of the particular depot under his charge; and that it was not necessary such regulations should be prescribed by by-laws of the corporation. That the opening of depots and platforms for the sale of tickets, for the assembling of persons going to take passage or landing from the cars, amounts to a license to all persons, prima facie, to enter the depot and that such entry is not trespass; but that it is a license conditional, subject to reasonable and useful regulations; and on non-compliance with such regulations the license is revocable and may be revoked either as to an individual or as to a class of individuals, by actual or constructive notice to that effect. That if the platform, as part of the depot, is appropriated to and connected with the entrance of passengers into cars, and the exit of passengers from the cars, and for the accommodation of their baggage, and if the soliciting of passengers to take lodgings in particular public houses by the keepers of them or their servants, is a purpose not directly connected with the carriage of passengers by the railroad, or their entrance into or exit from cars; that if when urged with earnestness and importunity it is an annoyance of passengers, and interruption to their proper business of taking or leaving their seats in the cars and procuring or directing the disposition of their baggage; or if the presence of such persons, for such a purpose is a hindrance and interruption to the officers and servants of the corporation in the performance of their respective and proper duties to the corporation as passenger carriers; then the prohibition of such persons. from entering upon the platform is a reasonable and proper regulation, and a person who, after actual or constructive notice of such regulation violates or attempts to violate it, thereby loses his license to enter the depot; that such license as to him may be revoked; and if upon notice to quit the depot, he refuse so to do, he may be removed therefrom by the superintendent and the persons employed by him; and if they use no more force than is necessary for that purpose, such use of force is not an assault and battery, but is justifiable. That as to the circumstances of the present case, if the superintendent had issued a circular giving notice to all inn-keepers and landlords that he had prohibited them from entering the depot to solicit persons to go to their respective houses as guests, and if this notice came to Hall and he afterwards, and after special notice to him personally, had attempted to violate this prohibition, and solicit passengers; and if upon the particular occasion, he gave no notice of coming for any other purpose; and if the defendant Power met him on his way to the platform, told him he must not go there, laid his hands on him and ordered him to leave the depot, without any inquiry as to the purposes of Hall, and Hall made no reply, but pressed forward and attempted to reach the platform in spite of the efforts of Power; this was strong prima facie evidence that he was going there with intent to solicit passengers in violation of the notice and revocation of license; and that if he gave no notice of his intention to enter the car as a passenger, and of his right to do so, and if Power believed that his intention was to violate a subsisting reasonable regulation; then he and his assistants were justified in forcibly removing him from the depot. That if Hall gave no notice of his having a ticket, of his intention and purpose to enter the cars as a passenger and of his right to do so, and that Power had no notice of it, then Hall could not justify his conduct and make Power a wrong-doer by proving the possession of such a ticket, or of his intent to go in the cars to Richmond as a passenger; and that he was to be considered as standing on the same footing as if he had not possessed such ticket. New trial granted. MISTAKE OF FACT-ASSAULT-ARREST. COMMONWEALTH V. PRESBY. [14 Gray, 65.] In the Supreme Judicial Court of Massachusetts, October, 1859. Mistake of Fact-Assault. - A policeman finding B. in the public streets, and believ ing him to be intoxicated arrested him and took him to the station. It turned out that the man was not drunk. Held, that the officer was not guilty of assault. Indictment for assault and battery. Tried in the Court of Common Pleas in Middlesex, at October term, 1858, before AIKEN, J., to whose |