PADDOCK V. ATCHISON, T. & B. F. R. co.
to purchase it, were denied the right to exercise the new franchise. The act was undoubtedly intended to benefit a particular road or roads against all, others. In the very nature of things, the conditions which entitled corporations to enjoy the additional privilege or franchise can exist very few points on the borders of Illinois, and it is admitted in argument that Cairo is the only point at which they do exist. If ,the petitioners are unable, as they seem to be, to avail themselves of the benefit of the water-craft act by purchasing land, then they are denied the right of transferring their cars to the opposite side of the river, unless they pay tribute to the owners of the present facilities on such terms as they choose to impose. While the water-craft act does not purport to be a special or local statute, it is within the spirit of the constitutional provisions referred to, and we are inclined to believe that it is also within their letter. Courts cannot be expected to look with favor upon legislation which is intended to benefit a particular road or roads as against all others and the public; but, inasmuch as this question has not been discussed by counsel, we are not prepared to hold that the act is unconstitutionaL "No order will be entered until the court is informed that the parties are unable to agree upon a settlement.
PADDOCK V. ATCHISON,
T. & S. F. R. Co. et 01.
w: D. Mi88ouri, w: D.
CARRIERS OF PASSENGERS-EJECTION FROM TRAIN-SMALL-POX.
Where a passenger on a train breaks out with eruptions, and the best med· ical advice that can be and is obtained is unable to disclose whether they pro· ceed from small·pox, and where from any prior conduct of such passenger, or any statement he had made. there is a well'/l:rounded, clear, and honest belief that small-pox is developing, the o.fficers of the train are justified in ejecting him; but they must eject him where there is every reasonable ground to be· lieve that he can find accommodations.
Where a passenger is wrongfully expelled from a Pullman' car of a train by the officers of the company operatinli\' the road, the Pullman Car Company fs not liable; and, if expelled by the officers of the latter, the railrop.d company is not liable. The measure of damages for wrongful ejection from a train is the amount paid out for resulting expenses, the value of the time lost, and compensation for pain and suffering which result from the expulsion, and for any permanent injury resultinj;t therefrom.
At Law. Action by Thomas W. Paddock against the Atchison, Topeka & Santa Fe Railroad Company, and Pullman's Palace Car Company, for damages for ejectment from a train. Lewis, Buxton <to Lewis and G. M. Barbour, for plaintiff. Geo. R. Peck and Gardiner Lathrop, for Atchison, Topeka & Santa Fe Railroad Company.
. John S. Runnel18, for Pullman's Palace Car Company.
BREWER, J.,.(orally charging jury.) . The plaintiff, who was a passenger in a Pullman palace car on the train of one of the defendants, the Santa. Fe Railroad Company, from the Pacific coast towards City, brings this suit, and says that he was forcibly removed from that c.ar, and that by reason of such removal he has suffered damages. I may pre.mise by baying that some questions have been suggested by counsel in respect to which you need pay no attention. The matter of the tickets you may lay to one side, under the case as it now stands, the pleadings, and the evidence. The first question is whether he was ex.pelled, or whether he voluntarily left the train. That is a question of fact. The testimony' you have heard, and nearly all of it to-day, so that it is fresh in your minds. -It would be useless for me to repeat it, and the question of fact in that respectis, did this plaintiff, when he got to Las Vegas, leave the train of his own volition, or was he put off? If he left of his own choice, freely, ,he cannot recover any: damages. If he was expelled,-that is, if he wat'! forcibly put offthetraiu,- then question arises. by whom was he expelled? Was he expelled by the officers or agents of the railroad company, or by the officers or agents of the Pullman company? If he was expelled solely by the officers of the one company, and the officers of the other company had nothing to do with it, then that other company is not liable. 'That iss question offact for you to settle also. If he were forcibly expelled by the officers of either company, then the defendants say they had a right to remove him, and that it was done without unnecessary force, and with no personal injury; that all was done, if there was a forcible· removal, was just simply that he was required to leave the train, and that they had a right to do it, and that . their duty to ,do it, under the circumstances. They say that at .the time, or just prior to the time, of the removal there had developed what they thought, and what the people in the cars thought, might be smallpox-a loathsome, contagious, infectious disease,-and that what they did, if there was a forcible removal, was for the safety of the other passenduty. If the plaintiff had been in fact breaking , gel's, and as a part .out with the small-pox,-a loathsome and contagious disease,-then, unquestionably, it was the duty, as well as the right, of the railroad comin the best way possible at the time. pany to protect the other If it was necessary 1.6 remove'him it was its duty to remove him in order to protectthe other passengers; for while, when it takes a passenger, it is its duty to carry him safely to the end of his journey, yet iUs equally its duty to carry the other passengers safely. If a man should become drunk .: and quarrelsome, or boisterous, on the train, or if he breaks out with a ,loathsome and contagio.us disease, it is its duty to protect the other passengers from the misconduct or misfortune of this one passenger. But it appears from the testimony that, whatever the symptoms may have . been j "'7"""Cluptions, ,etc.,-.,.,there was in no small-pox; that it turned out afterwards to be a case of measles, and only thaLN.ow I that is not
PADDOdK ".ATCHISON, '1'. &: s.P; it
disease ,as calls for.such treahnentas small-pox·. Of course' you all understand that. But in that respect the law is this. If It passenger breaks .outwith eruptions which the best medical advice that can be and is obtained is unable to disclose whether they proceed from smallpox; and if, from any prior conduct of the plaintiff, or from allY statement he had made, there is a well-grpunded, clear, and honest belief that small-pox was developing itself, then the officers of the company are justified in removing him from the train, although afterwards it may turn out that they were mistaken. I do not mean to say, of oourse, that any mere guess or surmise or suspicion that it may be small-pox would justify such action; but when the advice of the best physicians at hand is obtained, and the past history of the plaintiff, as disclosed by him- . self, or as known to the officers of the company, creates a well-grounded, a clear and honest belief that that which is breaking out on the passenger isa case of small-pox, then they are justified in acting upon that conviction as though it were small-pox. They are under no obligations to wait until the disease has gone so far that the lives and the health of all the other passengers become endangered. Of course, in the exercise of this right, and the discharge of this duty for the protection of the health' and safety of the other passengers, they may not act wantonly, or reck-' lessly, or with disregard of the safety or comfort of the passenger removed. Take another illustration: Suppose a mun on the train becomes boisterous from drunkenness, becomes quarrelsome, so as to endanger the lives of passengers. It would be a very extreme case that would justify train out on the prairie, and far the conductor in putting him off from the conveniences of a town or village. But, when the train reaches a city or stopping-place where he could be taken care of, the duty of the railroad company is conipleted when it puts such drunk and quarrelsome passenger off the train. It is not its duty to go beyond that,for its business is only that of a common carrier, and it is not under any other obligation. And so, in this case, if yoU should find all these things; if :vou sh()uld find that the plaintiff was forcibly removed,' and that he was removed because there was, as indicated, a well-grounded' belief that· he wa.sbreaking out with the small-pox; and if there was no otherre/lsonable way of protecting the other passengers from dauger,-then its duty' was to put him off,at some place where he could find accommodations. or where there was reasonable ground to believe he could find accommodations. It could not stop out on the prairie, and put him off where there was only a hamlet or a single house,where he could not possibly obtain medical attendance; but it could put him off where there was every reasonable ground to .believe that he could procure medical attendance, and ample accommodations; and, if it there removed him from the train without unnecessary force, it has discharged its full measure of duty. Those are all the questions oflaw. On the question of damages, if you find for the plaintiff, youliave 'the right to take into:accourit alLthe money he has paid out neCesSarily in expenses, and the value of the time which he :lest bydreason of his daten-' tion; and you will take into consideration the pain ;and :s\rlferiiiifWhiCh
he endured consequent upon his removal. I do not mean to say that that pain and suffering and injury which would come in the natural course of events from the di!'lease would be damages for which the railroad company would be responsible; but anything which came by any increase in the disease, aggrayated by the expulsion, or brought about by the expulsion. And so any permanent or continued injury to his system which has flowed from that act in any way is to be taken into account. Of course, as to the mere claim for money spent, and the value of his time, that is a matter of mathematical calculation, and of easy computation; but the other matter is a matter left to the solemn judgment of 12 men laken from the body of the country to say what is fair compensation. If you find for the plaintiff, the form of your verdict will be: \"We, the jury, find for the plaintiff, and assess his damages at $ ," naming the sum you fix upon; provided you find against both defendIf you find against one of the defendants, the form of your verdict ," namwill be: "We, the jury, find for the plaintiff as against .. ing it, such defendant, "and assess his damages at $ - - - " If you find. for the defendants your verdict will be:·' "We, the jury, find for the ql'fendants." In either case you will sign same with the name of one of your number as foreman.
(Circuit Court, E. D. Wisconsin. February 25, 1889.)
. Rev. S;t. U. S. § 968, pro.viding that a plaintiff recovering less than $500 in .a case which cannot be brought in a federal court unless the matter in dispute, '. exCll1siveof costs, exceed that sum, shall not be allowed costs, was taken from thejudiciafy act of September 24,1789, which placed the minimum jurisdic· tio.nal amount, at $500. It was not changed when the minimum amount was changed by act March 8, 1887. Held, that the courts cannot construe it, as ehangell, to conform to the new amount.
. ,Witnesses .may become entitled to .fees as having attended a federal court "pursuant to law," though they have done so voluntarily, without being sub· preIlaed. ' .
. ATTENDANOE· TO COSTS IN FEDERAL COURTS.
\. :.. Rev. St. U. S.
848, allows a witness mileage to and from his residence. that a may run into anotber district as to wit· nllsses living riot more than 100 miles from the. place of trial. Section 868 a.u· .; thorizes dep6sitions by witnesses living more than that distance. Held. that witnesses,voluntarily attending a court more than 100 miles distant from their ·. , can recover mileage for 100 miles. .
,AtLaw.. , On motion to tax costs. , 1):Ej$p8ssby Charles E. Eastman and Peter McArthur against Harry Sher,.ry. Vel'<J.ict lor plaintiff. . for