licity to its regulations concerning the purchase of tickets for that train, and this view of the case seems to have been wholly disregarded by the jury in their findings.

The jury found specially that the plaintiff, in the use of ordinary care and caution, could not have ascertained that he was required to purchase a ticket before being carried upon a freight train. This finding is without any evidence for its support, and is also against the positive evidence of the conductor and brakeman. If Hinsdale had applied at the company's office for tickets and found it closed, or if he had made inquiries of the conductor or brakeman and got no answer, or if he had been induced by the ticket agent or conductor to take the train without the purchase of a ticket, he would have been excusable for being upon the train without a ticket. None of these things occurred.

Passenger com

expulsion.

After the train stopped, and he was notified by the conductor to leave, he should have submitted for the time being. The fact that he caused himself to be ejected from the car can add nothing to his cause of action. A pelling the use party will be entitled to as much damage for any of force in his wrong or injury quietly endured, as if he violently resisted. Railroad Co. v. Griffin, 68 Ill. 499; Railroad Co. v: Cornell, 112 Ill. 295; see also Railroad Co. v. Rice, 38 Kan. 398 [just decided]. Where a party upon a train is explicitly informed by the conductor that he cannot retain his seat, and must leave the car, he then knows that he cannot proceed longer upon the train, but must leave, and resort to his legal remedy, the same as though he had been ejected. "If, after this notice, he waits for application of torce to remove him, he does so in his own wrong. He invites the use of the force necessary to remove him, and, if no more is applied than is necessary to remove him, he can neither recover against the conductor nor company therefor. This is the rule deducible from the analogies of the law." Townsend v. Railroad Co., 56 N. Y. 295; Hall v. Railroad Co., 15 Fed. Rep. 57.

regulation

It is contended on the part of Hinsdale that he was properly in the caboose without a ticket, because the railway company had not published in the station-house or caboose the regulation requiring passengers to provide Publication of themselves with tickets before entering the car of Violation of a freight train; and also, that it was usual for the company to carry passengers on its freight trains without tickets, notwithstanding the existence of the rule to the contrary. If the railway company gave the actual notice of the regulation in the caboose, as testified to by the conductor and brakeman, then actual notice was brought

rule.

home to the passengers before the train left the station; and the alleged excuses for Hinsdale continuing on the train without a ticket will not avail. If Hinsdale had used this train often, before and after the adoption of the rule as to the purchase of tickets before entering the caboose of a freight train, without objection for want of a ticket, then, of course he would be excusable for not having provided himself with a ticket, if no announcement was made by the conductor or brakeman, as testified to. Railway Co. v. Greenwood, 79 Pa. St. 373. But a single instance of fare having been accepted by a conductor, in violation of this rule, would not justify a person in disregarding the same, if previous notice thereof had been given by posters in the station-house.

Four hundred dollars of the judgment seems to have been given for the use of the words "bummer" and "beat" by the conductor, as damages for injury to Hinsdale's Damages-Use feelings; and $125 for injury for the use of the of abusive words "bummer" and "beat" by the conductor to language. Hinsdale, on account of bringing him into ignomy and disgrace. This is not an action for slander or libel; and the jury have attempted to double the damages for the use of the words "bummer" and "beat." Even if Hinsdale was rightfully expelled from the train, the conductor had no right to treat him in a malicious or insulting manner: but if it be admitted that the conductor used the language alleged by Hinsdale, while he might recover on account of the words for injury to his feelings, he cannot, in an action of this kind, and upon the pleadings filed in this case, also recover damages because the words tended to bring him into ignomy and disgrace. As we read the record, however, it is very doubtful whether the conductor used any severer language to Hinsdale than that, "If he was not trying to beat his way, and was a gentleman, he would get off."

The judgment of the district court will be reversed, and the cause remanded for a new trial.

All the justices concurring.

Passengers-Right to Travel on Freight Trains. See, generally, McGee v. Missouri Pac. R. Co., and note, 31 Am. & Eng. R. R. Cas. 1-6.

Railroad companies are under no obligation to carry passengers on freight trains, and need not do so except they see fit. Pfister v. Central Pac. R. Co., 70 Cal. 169; s. c., 27 Am. & Eng. R. R. Cas. 246; Chicago & A. R. Co. v. Randolph, 53 Ill. 510; s. c., 5 Am. Rep. 60, 63; Dunn v. Grand Trunk R. Co., 58 Mo. 187; s. c., 4 Am. Rep. 267; Burlington & M. R. Co. v. Rose, 11 Neb. 117; s. c., I Am. & Eng. R. R. Cas. 253; Cleveland C. & C. R. Co. v. Bartram, 11 Ohio St. 457, 464; Houston & T. Cent. R. Co. v. Moore, 49 Tex. 31. But companies in the custom of carrying passengers on freight trains and holding themselves out as ready to do so, become common carriers of passengers upon such trains and must carry

any person desiring to travel thereby. Chicago & A. R. Co. v. Flagg, 43 Ill. 364; Mobile & O. R. Co. v. McArthur, 43 Miss. 180; Hazard v. Chicago, B. & Q. R. Co., I Biss. C. C. 503. The company may, however, by regulation allowing only passengers having round-trip tickets, thousandmile tickets, or passes to travel on freight trains limit the right. Falkner v. Ohio & M. R. Co., 55 Ind. 369.

Procuring Tickets before Entering. A regulation that passengers taking freight trains shall procure tickets before entering them is reasonable, and a person failing to comply therewith will not acquire the rights of a passenger. Evans v. Memphis & C. R. Co., 56 Ala. 246; s. c., 18 Am. Rv. Rep. 350; Illinois Cent. R. Co. v. Johnson, 67 Ill. 312; Toledo, P. & W. R. Co. v. Patterson, 63 Ill. 304; Illinois Cent. R. Co. v. Nelson, 59 Ill. 110; Chicago & A. R. Co. v. Flagg, 43 Ill. 364; Illinois Cent. R. Co. v. Sutton, 42 Ill. 438; St. Louis, A. & C. R. Co. v. Myrtle, 51 Ind. 566; Law v. Illinois Cent. R. Co., 32 Iowa 534; s. c., 10 Am. Ry. Rep. 66; Brown v. Kansas City, F. S. & G. R. Co. (Kan.), 16 Pac. Rep. 942; Kansas Pac. R. Co. v. Kessler, 18 Kan. 523; Burlington & M. R. Co. v. Rose, 11 Neb. 117; s. c., 1 Am. & Eng. R. R. Cas. 253; Cleveland C. & C. R. Co. v. Bartram, 11 Ohio St. 457; Lake Shore & M. S. R. Co. v. Greenwood, 79 Pa. St. 373; Lane v. East Tennessee, W. & G. R. Co., 5 Lea (Tenn.), 124; s. c., 2 Am. & Eng. R. R. Cas. 278.

Notice of Change.-A company hitherto carrying passengers on freight trains and accepting payment of the fare thereon, must give notice of a change requiring the procuring of tickets before entering, and the mere posting of a notice of the regulation' at the station-houses is not sufficient. Lake Shore & M. S. R. Co. v. Greenwood, 79 Pa. St. 373. See also Burlington & M. R. Co. v. Rose, II Neb. 117; s. c., I Am. & Eng. R. R. Cas. 253; Lane v. East Tennessee, V. & G. R. Co., 5 Lea (Tenn.), 124; S. C., 2 Am. & Eng. R. R. Cas. 278.

Reasonable Opportunity to Obtain Ticket.-But if railroad companies hold themselves out to the public as carrying passengers on freight trains, even on such condition, they must give intending passengers a reasonable opportunity to obtain tickets. Illinois Cent. R. Co. v. Johnson, 67 Ill. 312; Chicago & A. R. Co. v. Flagg, 43 Ill. 364; Illinois Cent. R. Co. v. Sutton, 42 Ill. 438; St. Louis & S. E. R. Co. v. Myrtle, 51 Ind. 566; Brown v. Kansas City, F. S. & G. R. Co. (Kan.), 16 Pac. Rep. 942. When a passenger desiring to take passage upon a freight train endeavors to procure a ticket, but, by reason of the ticket office being closed he is unable to do so, he has the right to travel on such train by paying, or offering to pay, the usual fare. Brown v. Kansas City, F. S. & G. R. Co., (Kan.), 16 Pac, Rep. 942. An opportunity to obtain tickets at such a time as suits passenger trains only, is not a reasonable opportunity within this rule. Evans v. Memphis & C. R. Co., 56 Ala. 246.

Sufficiency of Effort to Procure Ticket.-A passenger desiring to travel upon a freight train does not make a sufficient effort to obtain a ticket, if he simply goes to the window of the ticket office and not finding the agent there, immediately enters the cars, without making any effort to see if the agent was within the office and without making any attempt to attract his notice. Indianapolis & St. L. R. Co. v. Kennedy, 77 Ind. 507; s. c., 3 Am. & Eng. R. R. Cas. 467.

Evidence of Non-enforcement of Rule.-In an action to recover damages for having been put off a train the railroad company claimed that it was not liable, by reason of the failure of the plaintiff to procure a ticket in conformity with its rules. which required passengers to procure tickets before entering freight trains. Plaintiff, for the purpose of showing that the defendant's freight trains carried passengers for hire, and that no rule was enforced by the defendant requiring the purchase of tickets before

entering its trains, offered to prove by four witnesses that said witnesses had on a number of occasions taken passage on defendant's freight trains without first procuring tickets, and that they paid their fares to the conductors of said trains; which testimony, on the objection of the defendant, was excluded. Held, that the testimony was competent, and its exclusion error. Brown v. Kansas City, F. S. & G. R. Co. (Kan.), 16 Pac. Rep. 942. In this case the court say: "Plaintiff also contends that the court erred in excluding the evidence of some four witnesses tending to show that this rule of the company was not enforced on its freight trains. This evidence was competent for two purposes: First, to show that freight trains on defendant's road carried passengers for hire; second, to show that no rule was in force requiring the purchase of tickets before entering the train. True, this evidence might not be sufficient to establish the custom when the evidence was given; but, if not, then it was the province of the court to so instruct the jury, and inform them what evidence it would require to show such custom and disregard of the rules in question. Stoner v. Pennsylvania Co., 98 Pa. St. 388; Lucas v. Railway Co., 33 Wis. 54; Smith v. Miller, 52 N. Y. 549; Railroad Co. v. Wheeler, 35 Kan. 185.'

STATE

v.

HUNGERFORD.

(Minnesota Supreme Court. June 18, 1888.)

Passengers-Fares-Discrimination-Tickets.-A railroad company may charge more as fare to those paying on the train than it charges for tickets purchased before entering the train. Following Du Laurans v. Railroad Co., 15 Minn. 49.

Same-Procuring Ticket-Reasonable Opportunity. The condition attached to such right to discriminate, that the company shall give to persons desiring to travel on one of its trains a reasonable opportunity to purchase tickets, does not require it to keep its ticket office open within such time, before the departure of the train, that a person cannot procure a ticket and get upon the train before it begins to move. Evidence held not to sustain the verdict.

APPEAL from District Court, Scott County.

Prosecution of Harvey Hungerford, a conductor, for an assault upon a passenger on the Minneapolis & St. Louis Railway. The defendant convicted, and appeals.

H. J. Peck for appellant.

Moses E. Clapp, atty. gen., for respondent.

Facts.

Additional

GILFILLAN, C.J.-Prosecution for an assault. The alleged assault consisted in the defendant, who was conductor of a passenger train on the Minneapolis & St. Louis Railway taking hold of Nicollin, the complaining witness, who was a passenger on the train, for the purpose of putting him off because he refused to pay the fare demanded by the defendant. That a conductor may, using only the force reasonably necessary (and no excess is claimed in this case), remove from the cars a passenger who refuses to pay the proper fare when demanded by the conductor, is beyond question. The fare on this railroad, from Jordan to Carver, to make which journey Nicollin had got upon the train, was, when paid on the train, 33 cents, but a regulation of the company made in all cases a deduction of 10 cents, from what we may call the train rates of fare, to passengers purchasing tickets at the station, before entering the cars. Nicollin had not purchased a ticket. The defendant demanded of him 33 cents; he tendered 25 cents, and refused to pay any more; whereupon defendant took hold of him to put him off. So the case turns on the defendant's right to require the payment of 33 cents fare. That a railroad company may charge more to passengers who pay their fare on the train than it does. charge when for tickets purchased before entering the train (the passenger is difference, of course, being a reasonable one, and without ticket. no one could say that in this case it was unreasouable) was affirmed by this court in the case of Du Laurans v. Railroad Co., 15 Minn. 49 (Gil. 29). To the right of the company to make that discrimination is, however, attached this condition: that it give to persons desiring to travel on its road a reasonable opportunity to purchase tickets, which includes the having a reasonably convenient place for the sale of tickets, and a person there to sell them for such reasonable time previous to the departure of the train as to enable persons to procure tickets, and enter the train, before it starts. Ordinarily, the question whether the time thus given for the purchase of tickets is reasonable, is for the jury. The jury in this case must have found that reasonable time was not given; and upon that point the evidence does not justify the verdict. The testimony of Nicollin (and no other testimony on the point differs from it) is to this effect: The train was due at 4 minutes to 6 P.M. He was at the station at about half past five P.M., when the ticket office was open, the ticket agent there, and he had an opportunity to buy the ticket. He asked the agent if the train was on time, and was told it was not. He then went home to supper, from a quarter to a half a mile distant, when he heard the train whistle. The