c39:No. 237

SHOWALTER, Circuit Judge
(concurring). If the passenger be ordered to leave the train, his getting off is prima facie caused by the order. He need not resist “to denote” that his leaving is “against his will.” If, however, the company have no right to eject him, he may repel the assault with all needful force, and the company will be liable for the trespass and all the consequences thereof, whether he succeed in remaining on the train or be put off. On the other hand, if the passenger be, like a ticket holder in a theater, a licensee, then he must leave the train when ordered. By refusing, he becomes himself a trespasser, and.may be put off. On either theory, the company would be liable for refusal to carry him, and this liability might involve consequences of aggravation. On the former theory, an action would also lie for the assault, but, of course, not on the latter. The dictum in Railroad Co. v. Winter’s Adm’r, 143 U. S. 73, 12 Sup. Ct. 356, that one “rightfully on the train as a passenger” has “the right to refuse to be ejected from it, and to make a sufficient resistance to being put off to denote that he is being removed by compulsion and against his will,” implies that the public interest against a breach of the peace 'may be a limitation upon the rights of the injured party in trespass against the wrongdoer. Substantially this idea was the ground of decision in the overruled case of Newton v. Harland, 39 E. C. L. 952, in England, and in,,the cases,, also overruled, of Dustin v. Cowdry, 23 Vt. 635, and Reeder v. Purdy, 41 Ill. 279, in America. The passenger cannot have the right to remain on the train while the carrier has the right to eject him. The latter cannot be saved from the consequences of the former’s resistance to an unlawful attempt to eject him. A right oh the part of the carrier to persist in the assault cannot arise out of a resistance by the passenger greater than necessary “to denote” that he is “being removed by compulsion and against his will.” The passenger’s right to remain on the train secure from assault cannot be lost or impaired by such persistent resistance to a wrongful assault. In Railroad Co. v. Winter’s Adm’r the passenger was hurt as a consequence of a resistance obviously much more than sufficient “to denote” that he was “being removed against his will,” but the carrier was held for such hurt As stated in the report, “there was no question in the case respecting the measure of damages.” The dictum above quoted was aside from the case. I agree that we must affirm. But, since we bold that the order to leave the train does not make the passenger’ who disobeys a trespasser, our judgment must necessarily mean that the defendant is liable for the consequences of whatever resistance the passenger wrongfully assaulted and expelled saw fit to make. The judgment of the circuit court is affirmed.

Passage view · GavelSight