will be no justification for so doing, even though the carrier's servants believed, or had reasonable grounds to believe, that he was violating its rules, if the passenger was not in fact guilty of the supposed violation. The carrier must be held to judge at its peril as to the application of a rule in a particular case, and, if it errs, it will be answerable for its mistakes, or or those of its servants while acting under its authority.5 16. Ejection of passenger for breach of regulations. Sec. 1082. (§ 590.) At what place passenger may be ejected. It has been held that the passenger who refuses to obey a reasonable regulation of the carrier forfeits his right to be carried, and at once puts himself in the condition of an intruder, and may be ejected at any point upon the carrier's route at which he may choose to put him off; and that the railway carrier, unless the rule be changed by statute, need not delay his removal until its train comes to a station, but may stop the train and expel him at once. This rule is, however, changed by statute in many states, and the passenger may only be ejected at a regular stopping place or opposite a dwellinghouse. And though, by the common law, a carrier, it is said, 5. Railway Co. v. Osborn, 67 Ark. 399, 55 S. W. Rep. 142. 6. Great Western Ry. v. Miller, 19 Mich. 305; McClure v. The Railroad, 34 Md. 532; Ohio, etc., R. R. v. Muhling, 30 Ill. 9; Illinois, etc., R. R. v. Whittemore, 43 id. 420; Wyman v. Railroad Co., 34 Minn. 210; Lillis v. Railroad. Co., 64 Mo. 464; O'Brien v. Railroad Co., 15 Gray, 20; Brown v. Railroad Co., 51 Iowa, 235; Rudy v. Railway Co., 8 Utah, 165, 30 Pac. Rep. 366. Where there is no statute to the contrary, a passenger liable to ejection who asks to be put off near the station from which he started should be there put off. Hall v. Railway Co., 28 S. C. 261. After the right to eject an unruly passenger has been exercised and the passenger put off the train, the carrier will not be liable when such person attempts to again board the train, and, in doing so, falls and is injured. Railway Co. v. Saulsberry, 112 Ky. 915, 66 S. W. Rep. 1051, 56 L. R. A. 580. 7. See Toledo, etc., R. Co. v. Wright, 68 Ind. 586; Texas, etc., R. Co. v. Casey, 52 Tex. 112; Hobbs v. Railway Co., 49 Ark. 357; South Florida R. Co. v. Rhodes, 25 Fla. 40; Baldwin v. Railway Co., is not required to put out a trespasser at one place rather than another, yet the law will not permit a person to be exposed wantonly to perils.8 There is, however, no rule which requires any consideration to be shown for the mere convenience of a wrong-doer; otherwise, such companies would be subject to imposition by being compelled to carry persons from station to station without compensation. But while this should be the general rule, there may be circumstances under which such a course would be unjustifiable, and would subject the carrier to liability to damages to the person thus treated; as where the passenger having a ticket had accidently lost or mislaid it, and not being able to show it when called upon by the conductor, in conformity with a regulation of the company, was ejected without being afforded an opportunity to find it, or where a passenger to whom no seat can be furnished, and who therefore refuses to give up his ticket, is ejected at a dangerous place.10 In England, however, the power to eject for non-performance of a regulation, as to produce a ticket or pay fare, does not exist in the absence of some statute or valid by-law or agreement conferring it.11 Sec. 1083. Same subject-Ejection of females and sick or intoxicated passengers. But even in the absence of a statute, regard must be had for the age, sex and condition of the passenger, and the surrounding circumstances, such as the state of 64 N. H. 596; Wright v. Railway Co., 78 Cal. 360; Terre Haute R. R. v. Vanatta, 21 Ill. 188; Ill. Cent. R. R. v. Latimer, 128 Ill. 163; Nelson v. The Railroad, 7 Hun, 140; Hill v. The Railroad, 63 N. Y. 101; Railway Co. v. Lewis, 69 Ark. 81, 61 S. W. Rep. 163; Railroad Co. v. Harper, 69 Ark. 186, 61 S. W. Rep. 911, 53 L. R. A. 220, 86 Am. St. Rep. 190; Holt v. Railway Co., 174 Mo. 524, 74 S. W. 631, 87 Mo. App. 203; Durfee v. Railway Co., 9 Utah, 213, 33 Pac. Rep. 744; Nichols v. Railway Co., 7 Utah, 510, 27 Pac. Rep. 693; Boehm v. Railway Co., 91 Wis. 592, 65 N. W. Rep. 506; Phettiplace v. Railroad Co., 84 Wis. 412, 54 N. W. Rep. 1092, 20 L. R. A. 483. 8. See following section. 9. Maples v. The Railroad, 38 Conn. 557. 10. Hardenbergh v. Railway Co., 39 Minn. 3. 11. Butler v. Railway Co., L. R. 21 Q. B. D. 207. the weather, the time of day, the condition of the country, etc., for he must not be ejected at an unreasonably unsuitable place or time. The question of the suitableness of the time and place is therefore ordinarily one for the jury.12 Female passengers, 13 and passengers who are sick or suffering from some mental or physical infirmity,14 necessarily cannot be ejected at times and places where the carrier should know that their sex or condition would especially expose them to insult or injury. And this rule is true whether the attendant danger arises from the natural infirmity of the person or was self-imposed. Thus, if a person on a train is so intoxicated as to render him unconscious of danger and unable to appreciate his position, surroundings and perils, and his duty to avoid them, or he does not possess the power of locomotion, and is put off the train by a conductor on account of his misconduct, and the place where he is put off and left is dangerous to one in his condition, and these facts are known to the conductor, he would be guilty of recklessness and wanton negligence, rendering the company, in whose employment he is, liable for damages resulting from his negligence, although the person ejected and injured might 12. See Hall v. Railway Co., 28 S. C. 261; Illinois, etc., R. Co. v. Latimer, 128 Ill. 163; Louisville, etc., R. Co. v. Sullivan, 81 Ky. 624; Brown v. Railroad Co., 51 Iowa, 235; Toledo, etc., R. Co. v. Wright, 68 Ind. 586; Chicago, etc., R. Co. v. Parks, 18 Ill. 460; Brown v. Railroad Co., 51 Iowa, 238, 1 N. W. Rep. 487; Rudy v. Railway Co., 8 Utah, 165, 30 Pac. Rep. 366. 13. Jackson v. Railway Co., 76 Miss. 703, 25 So. Rep. 353. In Sira v. Railway Co., 115 Mo. 127, 21 S. W. Rep. 905, 37 Am. St. Rep. 386, the conductor ejected a female passenger, 17 years of age, at a station short of her destination because, by the carrier's rules, the train did not stop at her destination. She knew no 14. Eidson v. Railway Co., Miss. have been legally ejected in a proper manner and at a proper place.15 But in order to subject the company to liability for such act, the condition of the person so ejected must be such that it would reasonably indicate to the carrier's servants that he, on account of his condition and the surrounding circum 15. Railroad Co. v. Johnson, 108 Ala. 62, 19 So. Rep. 51, 31 L. R. A. 372; s. c. Johnson v. Railroad Co., 104 Ala. 241, 16 So. Rep. 75, 53 Am. St. Rep. 39; s. c. Railroad Co. v. Johnson, 92 Ala. 204, 9 So. Rep. 269, 25 Am. St. Rep. 35; Railroad Co. v. Ellis' Adm'r, 97 Ky. 330, 30 S. W. Rep. 979; Delahanty v. Railway Co. (Can.), 7 Ont. L. R. 690; Atchison, etc., R. Co. v. Weber, 33 Kan. 543; Louisville, etc., R. Co. v. Sullivan, 81 Ky. 624; Cincinnati, etc., R. Co. v. Cooper, 120 Ind. 469. In Haug v. The Railway, 8 N. Dak. 23, 77 N. W. Rep. 97, 42 L. R. A. 664, it appeared that the passenger, while helplessly intoxicated, of which fact the defendant's employees had notice, was carried beyond his destination. When the train reached the next station, extra fare was demanded of him, and, on his refusal to pay it, he was compelled to leave the train. It was late at night and the weather was stormy and dangerously cold. At the station where he was put off there were no accommodations except the defendant's depot. He entered the depot to await a train which would carry him back to his destination, but was shortly afterwards ejected therefrom by the depot-agent, who closed the depot for the night. The depot-agent knew of his purpose in being in the depot, and also of his intoxicated condition. In attempting to return by foot to the next station where shelter could be found, he succumbed to the cold and later died from the exposure. It was held that while the defendant was not bound to keep its depot open at all hours of the day or night, yet that, where the passenger was negligently carried beyond his destination, it was bound in view of the climatic conditions and the non-existence of shelter except in its depot, to decide whether it would leave him in the depot or carry him further to another place of safety; that where once it determined to put him off at the depot, there sprung up the obligation not to take from him the only shelter the place afforded. "His intoxication," said the court, "was not the proximate cause of his death. It was, it is true, the cause of the defendant being required to exercise greater precaution as to the place of his removal from the train than if he had been sober. The man who voluntarily incapacitates himself by drink is not, on that account, an outlaw. When the carrier discovers that one helpless from intoxication is upon its train without right, it must, in selecting a safe place to put him off, have regard to his actual condition, physical and mental, without any reference to his responsibility for such condition. The law declares to the carrier that it shall not expose him stances, would be liable to injury by being left at the place where ejected.16 Where, however, a drunken person has been carried to his destination, or ejected in a proper manner, and there placed in a position of safety, the carrier is not liable if he afterwards wanders back upon the track and is injured or killed.17 Sec. 1084. The right to eject must be exercised in a proper manner. And in general it may be said that, while the carrier may not be required to pay regard to the mere convenience of the passenger, when he has forfeited his right to be carried by his misconduct or refusal to comply with his regulations, he cannot eject him in such a manner as to endanger his safety, as by ejecting him while the train is in motion or in a dangerous place, without making himself liable for the consequences.18 Nor can he use more force than may be necessary, and if he re to great peril, even in exercising its undoubted right to eject him, and, in deciding whether he will be subjected to peril, not only must climatic conditions, the propinquity of shelter, and other matters be taken into account, but also the actual state of his mind and bodily health and strength, if known to the agent of the carrier. . . . The proximate cause of the deceased's death was the wanton act of the defendant's agent in unnecessarily exposing him in a state of helpless intoxication to the cold and storm of a bitter wintry night." The order of the lower court sustaining a demurrer to the petition was therefore reversed. 16. Tuttle v. Railway Co., 80 S. W. Rep. 802, 26 Ky. L. Rep. 152; Railroad Co. v. Johnson, supra; Roseman v. Railroad Co., 112 N. Car. 709, 34 Am. St. Rep. 524, 16 5. E. Rep. 766, 19 L. R. A. 327. 17. Railroad Co. v. Hawkins, 92 Ala. 241, 9 So. Rep. 271; Railroad Co. v. Logan, 88 Ky. 232, 10 S. W. Rep. 655, 21 Am. St. Rep. 332; Nash v. Railway Co., 136 Ala. 177, 33 So. Rep. 932, 96 Am. St. Rep. 19; Brown's Adm'r v. Railroad Co., 19 Ky. L. R. 1873, 44 S. W. Rep. 648; Gaulkler v. Railway Co., 130 Mich. 666, 90 N. W. Rep. 660; McClelland v. Railway Co., 94 Ind. 276; Missouri Pac. Ry. Co. v. Evans, 71 Tex. 371; Railway Co. v. Valleley, 32 Ohio St. 345. 18. State v. Kinney, 34 Minn. 311; Brown v. Railroad Co., 66 Mo. 588; Gulf, etc., R. Co. v. Kirkbride, 79 Tex. 459, 15 S. W. Rep. 495; Fell v. Railroad Co., 44 Fed. Rep. 248; Railroad Co. v. Bohannon, 6 Tex. Ct. R. 281, 71 S. W. Rep. 776. Ejecting a passenger from a slowly moving train is not negligence per se. Southern, etc., Ry. Co. v. Sanford, 45 Kans. 372, 25 Pac. Rep. 891. |