sons, irrespective of the merits of the particular item if it had been properly urged when the questionll.rose during the progress of the work. I have thus endeavored to find the facts in this case and the conclusions upon questions of law involved, as well as the conclusions as to each ofthe plaintiff's claim. The court has been very greatly aided in all this by the careful and able argument by the counsel on both sides. The court has been specially benefited by the carefully prepared argument and brief submitted by the junior counsel for the plaintiff, enabling the court, a8 it has by its references to the testimony, to find without difficulty such parts of the voluminous testimony in the case as have been most material in its consideration. The conclusion in this case is that the plaintiff is not entitled to recover in any amount, and that the judgment must be rendered in, favor of the defendant, with costs of suit.
HARRISON t1. (0IrcuU Court, N. D. Georgfa. .Tune 91, 1890.)
L C.lB1!J" OJ' PA88ENGEBll-E.n!OTJON OJ PASSBNGEBI-REJUllAL TO PAY ExTJU. FARE. Where a passenger sought to buy a ticket, but could not, because the agent hil:d left the office, and gone to meet the train, then standing at a water-tank some2Otl feet away, anp the passenger refullOO. willfUlly aud captiouslY, to PllY the conductor 25 cents in excess of the regular. fare, aud take a rebate chec'k, (the requirement 'of the conductor being in accordance with his Instructions, and baving the.sanctlon of the railroad commission of the state,) and, this refusal being persisted in until the train was stopped, the conductor was authorized to put the passenger off the train. I. SAKE-OlI'I'BR TO P.n AJl'TBR EJECTION. ' A passenger, who knew the duty of the conductor, and willfully and oaptiously refused to pay extra fare, demanP!ld.of him because he had no ticket, cannot reinstate himself, after the train has been stopped to put'him off, by offering to pay.
SAlIB-"-AsSAUL'1' BY CoNDUCTOR-PROVOCATION.
A Pllssen!!'er cannotclaim da:qlages on account of.the conductor drawing a pistol on him, and speaking of hilIlas a coward to the other passengers, if the conductor'. conduct was provoked and caused by the acts of the. pssBenger.
At Law. HaU &: Hammond, for plaintiff. Bacon &: Rutherford, for defendant. Before PARDEE and NEWMAN, JJ.
NEWMAN,J. This is a motion.:fora. new trial, At the conclusion of all the testimony, both plaintiff and defEmdant having introducing evidence, the court directed a verdict for the defendant, for the reason that, under the most favorable view of the evidence for the plaintifr, he was not entitled to recover. The facts in the case were substantially as follows: On the '11th day. of February. 1886, the plaintitf,accompanied by his friend, Mr. traveling salesmen,-came from Monticello, in a .ppvate.conveyanoe" to Flovilla, a station on the railroad Qperated by· the defendaIitas receiver at that time. They came to Flovilla to take
the purpose of going to Jackson, a station on the same road, 1"5 miles from Flovilla. When they were out in the edge of the village of Flovilla, they heard the train on which they wished to take passage coming, between a quarter and a nalf mile distant. They drove up to the station, and got out of their vehicle, and went over to the railroad. The plaintiff went to the ticket-office in the depot to get a ticket to Jackson; Mr. Allen remarking to him at the time that he had a 1,OOO-mile ticket. The plaintiff did not find anyone in the ticket-office, after looking all round, although the window of the office was open, and he was unable to geta ticket. At this tittle the train was standing at the water;' tank,w.hich was distant, as appears by actual measurement, from the dEjp'ot,206 feet and 4 inches. It appears fl'Oro the evidence of the rail. road agent there, which is uncontradicted, that he had been intbe ticket. office for some time before the train came up to the water-tank, and that he left the office, and went down to the water-tank to meet the train, for the purpose of transacting bis' 6tisiness with the train. He saw the plaintiff and his friend as he came out of the office, and started to meet the train, but diel not that they wanted anything. The train drew up in a few minutes to the station, and plainaround to tiff and his frienKhgl;lt:: aboard.; Whan. takeup the tickets, Mr. Allen offered him his 1,OOO-mile ticket, when tlIe cOnductor inqtiu,#1,:1[the plaintiff was traveling fbrthebouse'foll which the ticket was 'issued, and was informed, that he was pot... 'rhe conductor then informe<ltyIr. Allen that he c()'uld not take his friend's fare out of that ticket. . It is not disputed that the, conductor was ,. The the conductor that he was unable to get a ticket in Flovilla, and offered him 15 cents to pay his,fare to J sen. The to him that he' was not authorized to receive the 15 cents .only, as. no ticl+et, but,he would)rave W' require' him to pay 25 cents additional, for which he would gi ve him a rebate check.; tt, a,ppe;u:ed that had to require the payment of 25 cents extra from .allpassQn:gers without. tickets, arid. to·give them ach,eck indicating the payment of it, which would be cashed at any office of the company. The rule of the company on this subject had been approved by the railroad commission of the state, 'and'was printed and hung up in the cars. The plaintiff knew of the existence of the. rule, as he stated to the conductor that he "diel not want a rebate check; that he frequently lost them, or failed to collect them." Plaintiff stated to the conductor 'tha:t,'as he ha.dbeen unltble to aticket, he did ndt think he. ought to cha,rge him more tban45 cents, the regular price. The cond uctor plied-according tofhe'plaintiff, ina very gruff way-that he had, ing to do with theUeket'agent; thM, if he did not pay 40 cents, he would put him off the' traiu,but; if he paid it, he would give 25 cents check; and replied, as stated above, that he did not waint,'a rebate check',!that the' conductol'said, "WeU, I'il'putyou.o:ft'.", The plaintiff said, allead.,l! The, conductor then forward to the front IOf. the coach, Pl1lled ttH! beU:oi)rd,and-stopi!'Gd·l1;lle' ttaiu r and around:,antl started. tON/anIB
HARRISON V. FlNI>.
the plaintiff. The plaintiff, then, after the train was stopped, offered to pay the 40 cents, saying-as he said, in a joking way-that he did not feel inclined to walk back to Flovilla. The conductor, according to the plaintiff, got very angry at that, and replied that, as plaintiff had stopped the train, he could not ride on that train to Jackson for $100, and he would have to get off anyway. To this the plaintiff said: "I replied that he could not put me off, and the conductor answered he would show me about that, and went forward, out of the coach." In a few mi'nutes the conductor returned with several men the plaIntiff presull?ed to be trainrnen, as most of them had on the uniform. Plaintiff's supposition that these trainmen were brought back with him by the conductor is. contradicated hy the conductor, who says that be· did not bring them with him; but it seems that these men observed that. the. train had stopped , andthe cond uctor go forward and return, and came,' asia matter of curiQsity,after him. The conductor then walked up to ' wherethe . plltintiffwas and requested Mr. Allen, w:1)q .'Y.as on :same and next to the aisle, to get up, .so that he. c0l:lld pp.t the plaintiff off the train. When Allen got up, the conductor walked up, . and, according to the plaintiff's evidence, him by the coat ,sleeve, · andsaid,"Come,get off." .The plaintiff had a newspaper in both hands at the time, which he had been reading, Withhisright.hand;' he shoved the hand back. The conductodhen"grablied the plaintiff, ina very rough way, by the collar o(his:coat; and ·pXaintiff again shoved his 'hand back, and said that if he hurt him, . he would kill him. The conductor thEm put his right hand back to his hip pocket, . and,before the plaintiffknew what he was going to do, pulled out his "Let him hit pistol. and leveled it at hirn, close to face, me I Let him 1" plaintiff waS still sitting in his seat, with' the newspaper in his hand, but made nomotiorl whl\tever9f violence towards him. Several parties then pushed him aside, one of them being one of the trainmen, in uniform, who came up, and caught hold of the plaintiff's' coat eollar, and said "that he would have to get off the train." The "All right. I cannot help myself; but I do not want to be hijrt." He continued holding the plaintiff's coat eolUir, and lead him out by the collar, and put him off the train. This is substan-' tiaIly the plaintiff's account of the transaction. The plaintiff's friend, Mr. AHim, who was examined as a witness for him, gives an account of the transaction somewhat different in detail from the plaintiff. His testimQilyas' to the. immediate occurrence on which' the case turns is as follows: . . ."Mr. Harris told. him that he could not accept the fifteen cents. and they' had a little discussion; and he went on to explain to him .about the rebate .check, and told him that the rule of the company was that. when a passenger got 011 the train without getting a ticket, he charged him an excess fare of . twenty-live cents, which would be refunded at any station. Mr. Harrison told him that he. could not occupy his time running around looking up. ticket . .agents,when;he gut tostatious,toget .it cashed ; that he might 10000it. and -it. would be It' waste of time" ·and he was not going tOP'dY only ·. 'T4e cond uctOl' told him that he cO,uld not aace-pt it,. audhe wbUld' have-to. put
FEDERAL REPORTER I
Dl!IDotr·. After he'had tl:'ndered the fifteen cents, and the conductor would' Iiotreeeive it, he told he would have ,to put him off. He says: · That's all That.is all T am going you.' The copd\Jctor pulled the bell-jlQrd, and walked to the front of the car, and came back, and told him he would have'to get off. Mr. Harrison tdld him: · You will have to put me off, for lam not going to give you anymore.' The conductor stopped the train,' and went out into the baggage-car; and, when the train slacked up,he cameback;--l was sitting by him,-and he says: · Will you please move, and let me'pu.t this man off,?' I got on the opposite side of the car, and he says, ·y have got to get off,' and caught hold of jaDd he jerked his hand loose. Question. Who jerked hIs hand loose? Ansuier. Harrison jerked his hand loose. Q. he catch him? A. About the collar or arm. He says:' COme, my friend. You have to get off.' I think hecallght him twice, and he knocked his band loose. He says: ·Don't you hurt me. I will kill you.' In themesn time We were sittIng together,-he was on the other side ofthelleat; and. when I got up and moved on the other side of the car, he was still sitting in the comer next to the window, with a in his hands. I saw tllere was going to bea little scume. and he says, · Captain, rather than to have to walk, I believe I will pay the fare,' or offered to pay it. Q. He offered him the money? 'A. He offered him tile money. Q. What did he offer him II A. He o:tfered him silver, I suppose; and then the conductor told him-he says: · One hundred dolJ/lrswould not pay your fare from here to ,Jackson. You have caused me to ,stop the train, and caused delay, you have to get oft.' Someone in the car caught him. and led him outtothedool'j and he Kat off the train, and went on down to Flovilla·. I afterwards .tnet him coming in a buggy·. Q. What did Mr. Harrie do dnring that controversy? A. Inreferellce to the pullingof a pistol on 'him? Q. 'Fes.. sir. A. When Mr. Harrison told him that, if he hurt him, lie would kill him, .then the conductor pulled the pistol out. Q. Where did hegethis.plstol from? A.ldon'tknow whether it was in his .coatpocket or pistol pocket. Q; What did he do With it when he pUlled it ,<mt,?,A. Presenledit right at H8rnsQn. Q. What part of his body? A. Up alo,ns about his How far was the pistol from Mr. Harrison's 'facellA. Not more than a foot. He was next to the Window, and the eonductorwaS"standing oeartha edge of the seat. pretty close together. A'gentleman standing in the aisle caught his halld. and heJdit up. Q. What was Mr. Hltrrls' manner at. the time? A. Mr. Harris dt'termined. sir, He had stoPl,ed the train for that purpose·. Q. Did he put .him off? A. Yes. sir.. Q. what Mr. Harrison's manner was during that, time. A. He did not seem to be t'xcited, much.--was laughing most of the time. When he found he would have to get off,' he went on door with the papel'inhillhands. Q. State what his manner was.throughout the entire to whl:lther he was excit"d or objel"tl'd to what his manner was. Objection overruled.) The Witness. A. He seemed. indiffel'ent, rather, as to the paying of the fare; dett>rmined not topa)". it. I any boistl'rousness.' Neither one. I think, was boistei'ous. Jnst Iike.two determined men, -when one man is determined not to do a thing, and the other is that he sball. 'Thl:'re was not any]oud talking. It seellled that both Were bent uplm what the.v intl:'nded to do. 1 never heard any swearingoltRny oaths, or 8nythi[lgof the kind. I do not think there was any uttered ininy hearing. Q. Sllatewhether Mr. Harrison made,any movement. or offered to draw 8 pistol. A.,ldo,not think he did. Be'had 8 papedn his hands, lind held the paper before him. Q. Do what he didabont it? .A. I am pusitive he did notdl'awanypistol, He made the remark:, '!fyou hurtme,l will kill you.' Q. Whel'e,:were.you sitting, in reference to Mr. Harrison? A. After I moved out of the seat.il moved to the opposite side of the aisle. During
HARRISON t1. FINK."
the occurrence, I was right here, ancl'the condllcy<>l' was between me and Mr. Harrif)on. He was to the window, sitting i,Ii'adouble SE'at with the SE'ats thrown apart. ,Q. _ State or not Mr. Harrison made any effort to draw a pistol. A. He did not, sir. Q. Did he make any motion'in that direction? A.No, sir; he did not. Q. If he had made it, wouldyol1 have seen it? A.. I would have seen it, because he had'a paper in both of his hands. Q. What was he doing with the paper? A.. Readingtbepaper. Q. What did he do? State his manner,-as near as you can, exactly what he did when Mr. Harris drew the'p'istol in his face. ,A.· .He kind of got up, in a half.stoop position,:sort of this way,-[indicating,] and looked at the conductor, when he had the pistol on him. It was all done so qUick. Some one was standing there, and caught his arm, and threw it up. There were gentlemen in the aisle, and several of them jumped up, and caught his hand, and held it Up. Some one sa)'s: 'You will have to get off, and you had better .get off,' He says, right.' an4 they led him to the front door, and he got off." On cross-exllmination, among other things, ?fIr. Allen said that the plaintiff, in Teply to the conductor's statement that he would have to put him off,Baid, "Go ahead, and do YOUI' also states that that he braced himself, in some.way, so that he could not pull bim up. There W8soth:er testimony fOl"the plaintiff, which does not change the character-of the evidence, however, in any material respect j and there was considerable evidence for the' defendant. This evidence of the defendant's, including the testimony of the conductor himself, nlade a muc:h'more favomblecase for thedefendantthau that presented above, as given from his own evidence ,arid Allen's. The case was considered Ils'8tandingon' his own evidence'and, AUen's, as Allen, being in the seat with him, timst l!ave known all that transpired j and, being introduced by the plaintiff as -awitneJ3s; his. evidence was taken, in connection with the plaintiff's, in arriving at the most favorable view for the plaintiff of the transaction. There was no difference, however, betweeI! their testimony on tb.e material points on which this. turned; nor was there, indeed,any conflict in the evidence as to the facts' upon which the court directed the verdict for the defendant. It was conceded that the plaintiff had no ticket, and it was perfectly clear that it was the duty of the conductor, under his insttuctions,--which instructions were legal andproper,-to require the 25 cents additional, and give him a rebate check. It was clear that the conductor bad no alternative hutto comply with hisinstrl1ctions, and.require this extra amount, and that it was the duty of the plaintiff to pay it. It -is also undisputed that the train had stopped before the plaintiff offered to pay the amount required. Now, the train having been stopped on account of his refusal to pay what was lawfully required of him, and under his statement that he would riot pay it, arid that the conductor could" go and put him off," the simple question, under the authorities on the subject is, did Harrison act in good faith in his refusal to pay the amount l'equired of him, or was his 'conduct, on the other hand, willful; factious, and captious? lfhe had acted in good faith throughout the whole transaction, believing himself to be right in the matter, altholighbe had -caused the train to 'be' stopped, ,there is authority for the position:aBSumed by the counselfor the .plaintiff that he could even
tben reinstate himself by offering to pay the fare. If, on the other hand, a passenger knows the duty of a conductor, and willfully, stub.bornly, Ilnd captiously refuses tq do that which he knows it is the duty .Qf the. conductor to require of hhii, and this act causes the train to be stopped, he cannot then acquire the right to proceed by oBaring to pay. Thet:e are excellent reasons, found in good policy, for this rule. Trains <runn.ing onrailroad tracks are to meet other trains, and trains are fol,lpwing them; and, where a passenger, having the money in his posses;aionJo do so, (as it is shown plaintiff had,) refusell to comply with and lawful regulation, which, at the most, would cause him but the slightest inconvenience, ud does so stUbbornly and captiously, t6 gratify a mere whim, he not only inconveniences the officials of the road and the other passengers,' but, by causing such a, stoppage, he brin-gs:about a'condition of things,which, without great .care on the part of the:Officials, may result in serious danger to human Jife. It would b&unteasonable to hold that a paSsenger ,cQuld thus act, :!l,n,d afterwardS 'acquire any right by (}fferingto ,pay his .fare. If it could in any way be properly inferred from the facts, as stated by plaintiff. and hislVi,tnessr Mr. Allen, that he acted in good .faith in the: ,transaction, a,nd especially in causing the train to be stppped,it wOllld be hjsrightto go to thl3,jury:'dtl that question ibutthere is rIOt a particle of evioence,tQ the possibility justify any ,such inference. Bis own evidenQ6 of any·l!uch,eonclusion· being justifiably reached as to pis action. It is said that the plaintiff should have allowed to proceed with 11is case, in order to rebover, nolonly f0if.his expulsion from, the train; but also: for the indignity put on· the plaintiff by the maqner in whicl;l he was 'removed,......thatis, by drawing a. pistol on himfal1'd presenting it at hirn,........and on account of certain eXClamations which 'the cqnductor says in 'his'evidence he made to passengers in the car 8,t the time he drew the pistol, which were: ,"Do not be alarmed, ladies.. He is a is undispnted that the conductor first .endeavored quietly and peaceably to get the plaintiB' to leave the car. Harrison himself off says that he.laid his hand on his coat sleeve, and said, the train." Mr. Allen said he said: "Come,my friend. You must get off the train. " The plaintiff then knocked his hand off, and, when the cOJiductor took him by the collar, knocked his hand off ag!iin, and then, still occupying the seat and refusing to move; told him that,if he huI't hlm, he would kill him. Now, whether it would have been better fo1' the oonductor, under all circumstances, not to. have drawn the pistol and used the language complained of in reference to the plainrtiff, it is clear that this action of the conductor was provoked· and caused hytheactsof the. plaintiff himself. Can he,after having aeteli in the manner above narrated, complain of any act of the conductor's notgoing'hny further than those stated. We are not sure that any just criticism Can he made of the conductor's .acts or words, but it is that the plaintiff is in no 'position to chUm anytbing"on that account. Says Chief Justice BLECKLh:Y, in the case of Peavy v.·:.Railr,oad, etc." (b.) 81 Ga.' E. Rep. :70, involving a similar questioq:
"Did he have a cause of action for the shooting? But for his fault, theconductor would not have been brought into a stat(\ of excitement, from danger and insult, which unfitted him for discharging his proper duties, either to the company or to the passenger. Whether the conductor was more -or less in fault than the plaintiff was, in shooting, certainly the plaintiff was more in fault than the company, because the plaintiff was there upon the ground, stirring up exCitement, and bringing on danger both to the conductor and himself. He unfitted the conductor for exercising the care and prudence that were essential to guarding Lhe interest of the company, and essential ,to performing in a proper manner; his duty to the company or to the plaintiff. The plainti:l'f spoiled the instrument" and then sued the manager because the performer did not make good music. It was the plaintiff's fault that the conductor was out of tune; and, though the conductor might not be altogether exeusable for the shooting, (according to his own evidence, however, he was excusable,) the company was not in fault for it; and it would be unjust fOl' the plaintiff to rpcover of the company, when he boarded its train, violatjng the law, as we can well infer, by carrying upon his person a concealed w.eapon; violating the law again by swearing and using obscene violating the law again by committing an assault upon the conductor with a pistol, drawing the pistol, and presenting it at him; and violating the law by general disorder and misconduct throughout the transaction, up to the mo· ment he was shot. " This quotation expresses very clearly,in our opihion, the correct rule on this subject. Our conclusion is, therefore, that the plaintiff is not entitled to recover, under the most favorable view of the facts of this case, fur his;expulsion from the train; or for the manner of his removal; and consequently the direction ofa verdict for the defendant was right, arid the motion for a new trifil will be overruled·
. PWElil, J., concurs.
HARRY"'. THE AM.
(DImict Ooo1't, S. D. New York.
One who is engaged and ships as pilot of a vessel, whereon another stands'8sreg. istered master, has a lien on' the boat for his wages, although· he may be in entire oharKe of her navigation.
In Admiralty. Wifi.g, Slunuly & Putnam and Mr. Burlingham, for libelant , Alexander A8h, for claimant.
BROWN, J. The libelant daims a lien upon the proceeds of the vessel for his wages as It pilot. The defense is that he was mastet, and,asS\1ch,
bl' Edward G.· Benediot, Esq., of the New Y