$5000 excessive for wrongful ejectment of a passenger over a quarter of a mile from the station where he had started, no more force being used than was necessary. The plaintiff was delayed one day, and had to purchase another ticket, at an expense of $40.50. Quigley v. Central Pac. R. Co., 11 Nev. 350.

$6,500 not excessive for bodily and mental pain suffered by female passenger, by being wrongfully and rudely ejected by servants, using insulting and abusive language, on a cold dark night, in the swamp of a river, and in a strange country. International & G. N. R. Co. v. Gilbert, 64 Tex. 526, 22 Am. & Eng. R. Cas. 405.

$8,000 not excessive for expulsion of female passenger who was on the wrong train by mistake of the defendant's agent. She was put off at night at a lonely place. She walked back to the next station. received severe injuries and suffered from fright. International & G. N. R. Co. v. Smith (Tex.), 27 Am. & Eng. R. Cas. 148.

LAFFITTE

ย.

NEW ORLEANS CITY & L. R. Co.

(Louisiana Supreme Court, Dec. 15, 1890.)

Street Railroads-Torts of Servants-Liabilities of Company.-Street railroad companies are not liable for wilful and tortious acts of their servants committed outside of the scope of their employment.

Same-Same. They are under obligations to carry their passengers safely and properly, to treat them respectfully, and, if this duty is intrusted to a servant, he is responsible for the manner in which he executes the trust. They must protect their passengers, not only from violence and insults of strangers, but a fortiori against the violence and insults of their own servants. In this case the company is held liable for the act of the driver causing the arrest of a passenger upon a false charge of passing counterfeit money.

APPEAL from Civil District Court, Parish of Orleans.
Buck, Dinkelspiel & Hart, for appellant.

Paul E. Theard & Sons, for appellee.

Case stated.

MCENERY, J.-The plaintiff sued the defendant company for $20,000 for damages for abuse when in defendant's car, and for damages for malicious prosecution, and false arrest and imprisonment. There was judgment for the plaintiff for the sum of $400, from which the defendant appealed. The facts are that on the 27th day of December, 1889, the plaintiff entered the street car of the defendant company. He handed to the driver of the car, through the change gate, one silver dollar for change. The

drivers of the cars are instructed to furnish change to the amount of two dollars to passengers. The driver returned to the plaintiff 95 cents, 15 cents of which he placed in the fare-box for himself and friends. There was some altercation about the change being short five cents. The driver gave the plaintiff five cents to make good the deficiency. After going several squares, the driver charged the plaintiff with having handed a counterfeit dollar to him, for which he had given him the change. The driver, in the hearing of the passengers, threatened to have the plaintiff arrested when he reached the station. He frequently looked at the plaintiff in a menacing manner, which attracted attention, and placed the plaintiff under suspicion. When the car reached the station the driver and the starter at the station had the plaintiff arrested by a policeman, and confined in prison for a short while. There was a charge of passing counterfeit money lodged against plaintiff. The prosecution was dismissed, as the dollar which it is alleged was counterfeit was a good coin. There is some conflict of testimony as to the exact point where the plaintiff was arrested. But we believe his statement is corroborated that he was arrested at the request of the driver by the policeman, in response to the "whistle,"-a signal for the officer which he blew before the car stopped, just as he was stepping from the car. The petition of plaintiff contains two causes of action, one for abuse and defamation when in defendant's car, and the other for malicious prosecution. On the latter cause, the record does not show that the charge against plaintiff, and his consequent arrest, instigated by the driver of the car, was done in the exercise of the functions in which he was employed. The driver had no instructions to make arrest for the passing of counterfeit money. No inference of such authority can be drawn from the fact of changing money for passengers. He does this at his own risk and responsibility; the company loses nothing if counterfeit coin is accepted by the driver, as he is charged with it. It has no interest, therefore, in the arrest of the person attempting to pass counterfeit money, other than that which induces every citizen to make known crime when committed. It may be, as alleged by plaintiff, that the act was malicious, wilful, and tortious, but, as it was not done within the scope of the driver's employment, the defendant company cannot be held responsible in damages. Rev. Civil Code, art. 2320; Williams v. Pullman Palace Car Co., 40 La. Ann. 88, 33 Am. & Eng. R. Cas. 407; Gerber v. Viosca, 8 Rob. (La.) 150; Ware v. Barataria & L. Canal Co., 15 La. 169; Dyer v. Rielev, 28 La. Ann. 6; Cooley, Torts, p. 536.

Act ontside scope of employment.

The plaintiff was a passenger on defendant's street car line.

titled to dam

ages for insult

He had paid his fare to his destination. He behaved himself with propriety. He was not drunk or disorderly. The complaint against him for passing counterfeit Plaintiff enmoney was groundless. He was subjected to insult and defamation by the driver in the presence and injury. of other passengers. If not subjected to arrest within the car, he was practically placed under surveillance by the driver from the time he was charged with passing the counterfeit dollar until he arrived at his destination. In the case of Williams v. Pullman Palace Car Co., 40 La. Ann. 88, 33 Am. & Eng. R. Cas. 407, we quoted from and approved of the law as expressed in the case of Goddard v. Grand Trunk R. Co., 57 Me. 202. In that case the court said: "The carrier's obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he intrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. He must not only protect his passengers against the violence and insults. of strangers and co-passengers, but a fortiori against the violence and insults of his own servants." Id. The same doc. trine is laid down in the case of Keene v. Lizardi, 5 La. 431; also referred to and affirmed in the case of Williams v. Pullman Palace Car Co., 40 La. Ann. 88, 33 Am. & Eng. R. Cas. 407 Mallach v. Ridley, 9 N. Y. Supp. 922. There was no conductor on defendant's car. The driver was in exclusive control of the car, and charged with the safe delivery of the passengers. He was the only servant of the company to whom the passengers could look for protection. It is diffcult to estimate damages to feelings and reputation. If the plaintiff was possessed of any pride, or had any regard for his character, his humiliation in the presence of others, when in defendant's car, must have produced the severest mortification. Under the facts presented in this case, it was the peculiar province of the jury to estimate the damages. In the case of Griffin v. Shreveport & A. R. Co., 41 La. Ann. 808, 40 Am. & Eng. R. Cas. 295, we said: "While we are not bound by the findings of a jury, even on questions of fact or of damage, and do not hesitate to reverse them when manifestly erroneous or excessive, yet we give them the weight to which they are justly entitled, and do not lightly disturb them." The claim for damages for the false arrest and malicious prosecution did not go to the jury. Their finding was confined to the insult, abuse, and defamation while in defendant's car. We see no reason to disturb the amount awarded by the jury. Judgment affirmed.

Liability of Carrier for Injury to Passengers Through Tortious Acts of Ser vants. See Dwinelle v. New York Central R. R. Co. (N. Y.), 44 Am. & Eng. R. Cas. 384, note 391, note 41 Am. & Eng. R. Cas. 239, note 40 Id. 648; Dillingham v. Anthony (Tex.), 37 Id 1; Quinn v. South Carolina R. Co. (S. Car.), 37 Am. & Eng. R. Cas. 166, note 171; Dean v. St. Paul Union Depot Co., 39 Id. 360; Fick v. Chicago & N. W. R. Co. (Wis.), 34 Id. 378, note 380; Mykleby v. Chicago, etc. R. Co. (Minn.), 34 Id. 387; Sachrowitz v. Atchison, T. & S. F. R. Co. (Kan.), 34 Id. 382; Winnegar v Central Passenger R. Co. (Ky.), 34 Id. 462; Williams v. Pullman P. Car Co. (La.), 33 Am. & Eng. R. Cas. 407; Williams v. Pullman P. Car Co. (La.), 33 Id. 414; Spohn z. Missouri Pac. R. Co. 26 Id. 252, note 256.

Assault on Passenger by Street Car Conductor.--A railroad company is responsible to a passenger for a battery by the conductor, committed first on the car, and repeated shortly afterwards at the office of the company whither the passenger had gone to make complaint to the superintendent. The passenger having been badly beaten, kicked, cut with a knife, and his arm broken, a verdict for $2,000 is not excessive. Savannah St. & R. R.

Co. v. Bryan (Ga. Dec. 10, 1890), 12 S. W. Rep. 307.

Assault on Passenger for Refusal to Leave Moving Train.-In Alabama G. S. R. Co. v. Frazier (Ala. June 10, 1891), 9 So. Rep. 303, the plaintiff sued to recover damages for injuries alleged to have been wilfully inflicted on him by one of defendant's brakemen. It was held that although plaintiff got on a train knowing that no passengers were allowed on it, and though it was the duty of the brakeman to put him off, still if the latter, in the discharge of that duty, wilfully assaulted and beat plaintiff, merely because he declined to get off while it was running at a rate of speed rendering the attempt hazardous, the company would be liable for punitive damages.

Same-Evidence Res Gestae. In an action against a railroad company to recover damages for an assault inflicted upon the plaintiff by a brakeman in the employ of the defendant, the plaintiff testified that the assault was wilful and wanton, and without justification or palliation. According to defendant's evidence, it was committed under a reasonable apprehension of an immediate deadly attack by plaintiff on the conductor or brakeman. Held, that, on the issue of fact thus presented, all that occurred or was said between plaintiff and the conductor and brakeman, and the language, manner and conduct of the parties during the conversation, and leading up to the assault, was admissible in evidence as part of the res gesta. Alabama G. S. R. C. Co. v. Frazier (Ala. June 10, 1891), 9 So. Rep. 303. Servant Seizing Passenger to Prevent His Boarding Moving Train -Intoxi cation of Plaintiff -Evidence.—In Harrold v. Winona & St. P. R. Co. (Minn. July 17, 1891), 49 N. W. Rep. 389, the defendant, in its answer and upon the trial, having justified the action of its employe in seizing the plaintiff, in order to prevent him from boarding a train, exclusively upon the ground that such action was taken for the safety of the plaintiff, in view of the facts that he was intoxicated. and that the train was already in motion, the court properly refused to instruct the jury that defendant had a right to exclude the plaintiff from the train on the ground that he was an unfit passenger because of his intoxication, as not being applicable to the issues tendered by the answer.

MULLAN

V.

WISCONSIN CENTRAL R. Co.

(Minnesota Supreme Court, July 3, 1891.)

Passengers-Injury from Fellow Passengers.-It is the duty of a railway carrier of passengers to exercise the highest diligence reasonably practicable to preserve order on its trains, and protect passengers against violence, abuse, or injury from fellow passengers. This duty is exercised under an implied police power to prevent an abuse of their privileges by passengers. Evidence reviewed, and held not to show a breach of such duty by the defendant in this case.

APPEAL from Ramsey District Court.
Kueffner & Fauntleroy, for appellant.
Lusk, Bunn & Hadley, for respondent.

Carriers' duty

to protect

VANDERBURG, J.-This action is brought against the defendant to recover damages for an assault committed upon plaintiff by a fellow passenger on board of one of defendant's cars. The plaintiff was a passenger and entitled to protection as such. Railway carriers of passengers. passengers are bound to exercise the highest care and diligence in the conduct and management of their business, to prevent accidents or injuries to passengers on their trains. This is the general rule, as applied to the ordinary discharge of their duties as carriers. In respect to the danger of injuries from the misconduct of fellow passengers, and the duty of enforcing proper police regulations, the obligation of the carrier is qualified or limited by the nature of its relation to the passenger. It has no right either to refuse to receive or to expel a passenger, except for good cause. It must exercise the greatest diligence consistent with its obligations to the public and all the passengers, and neglect no reasonable precaution to protect passengers from insult or injury from its servants or fellow passengers; but as respects passengers there is no such privity between them and the carrier as to make the latter directly liable for their wrongful acts, (Carpenter v. Boston & A. R. Co., 24 Hun (N. Y.), 107), and it can only interfere under an implied police power to prevent an abuse of their privileges as passengers. It is held in general terms that the carrier is bound to exercise the utmost diligence in maintaining order and guarding the pas sengers against violence, from whatever source arising, which