Edgerly v. Union Street Railroad

To maintain the third count in her declaration, it was incumbent upon the plaintiff to show that her intestate was not only wrongfully ejected from the defendants' car, but that the subsequent injury to him was the natural and probable consequence of the ejection, — such a consequence as might and ought to have been foreseen by the defendants as likely to result from their act. In both of these respects the plaintiff failed to make it appear that there existed any duty on the part of the defendants towards the deceased which was unfulfilled. His expulsion from the car was justifiable. All the evidence shows that he was abusive, profane, creating a disturbance, and annoying the other passengers; that it was only upon his repeated refusal to desist that he was removed; that this was done in a reasonable manner as to time and place and as to the force used, which was only enough to accomplish the object; that his condition as to intoxication was not such as to render it likely that the ejection would be unsafe and dangerous in its consequences; and that he was exposed to as little peril as was reasonably possible under the circumstances.

There is no warrant in law, and certainly there can be none in principle, which compelled the defendants as a common carrier of passengers to allow the deceased to remain within their public vehicle any longer than he conducted himself in a decent and proper manner. On the contrary, it is the doctrine of all the adjudications and authorities that a carrier of passengers has the power of refusing to receive as a passenger, or to expel, any one who is drunk, disorderly, or riotous, or who so demeans himself as to endanger the safety or interfere with the comfort and convenience of the passengers, and may exert all necessary power and means, at the proper time and place, to eject from the car or other vehicle any one so imperilling the safety of, or annoying, others.

But it is not only the right, it is the duty, of a carrier to exclude or expel from his vehicle any person whose conduct or condition is such as to endanger the safety of, or to create inconvenience and disturbance or to cause discomfort and annoyance to, other passengers. And if this duty is neglected without good cause, and a passenger receives injury which might have been reasonably anticipated or naturally expected from one who is improperly received or permitted to continue as a passenger, the carrier is responsible. Putnam v. Railroad, 55 N.Y. 108; Flint v. Transportation Co.,34 Conn. 554; Marquette v. Railroad, 33 Iowa 562; Pittsburgh, etc., Railway Co. v. Hinds, 53 Pa. St. 512.

Nor is a carrier bound to wait until some act of violence, profaneness, or other misconduct is actually committed before exercising his authority to expel the offender. It is sufficient if the offender, by means of intoxication or otherwise, is in such a condition as to render it reasonably certain that by act or speech he will become offensive or annoying to other passengers, although he has not committed any act of offence or annoyance. Vinton v. Railroad, 11 Allen 304; Murphy v. Railway,118 Mass. 228, 230; Lemont v. Railroad, 1 Mackey 180 — 47 Am. Rep. 238; Brown v. Railroad, 7 Fed. Reporter 51; Jenks v. Coleman, 2 Sumn. 221; Thurston v. Railroad, 4 Dill. 321.

The plaintiff's case, therefore, stands no differently by reason of the expulsion of her intestate from the car than it would if he had voluntarily left it, or had not entered it at all.

"But if the propriety of the expulsion were doubtful, either because deceased's conduct did not justify it, or because his condition rendered it unsafe and dangerous in its consequences, still we must find that his death was the natural and proximate cause of the expulsion before defendants can be made liable." Railway Co. v. Valleley, 32 Ohio St. 345 — 30 Am. Rep. 601. This cannot properly be found upon the evidence. However it may have been subsequently, at the time of his expulsion the deceased was not so drunk as to be bereft of intelligence; his physical faculties were not so impaired that he was unable to walk. There was no reason to suppose he was not able to care for himself. He was not to put off "at night in the woods, far from houses, upon the brink of a precipice, or upon a high railroad bridge." The time was shortly after sunset, and the place was near dwellings, and upon a public highway which is not claimed to have been otherwise than suitable for the travel upon it. There was no evidence tending to show that the place was a dangerous one, or that the deceased was put in circumstances of danger greater than those that attend every person in his condition whose business or pleasure takes him over that part of the highway. In short, there was no legitimate connection between the expulsion and the deceased's death except as he himself connected it by reason of his intoxication; and for this, as between him and the defendants, he alone was responsible.

The denial of the motion for a nonsuit was proper. Whether negligence had been shown by the defendants in the running of their car upon the deceased, and whether there had been due care on his part to avoid it, were questions of fact upon which there was evidence competent to be submitted to the jury, and upon which they might find for the plaintiff. When this is so, a nonsuit will not be granted. Page v. Parker, 43 N.H. 363; National Bank of Newbury v. Bank, 62 N.H. 703. The instructions given upon these questions were correct (Nashua Iron and Steel Co. v. Railroad, 62 N.H. 159, 164,166), but if it were otherwise, the defendants' general exception would be unavailing. Reynolds v. Railroad, 43 N.H. 580, 588; Paine v. Railway,58 N.H. 611; Haines v. Republic Ins. Co., 59 N.H. 199.

For failure to give the instructions requested by the defendants as to the third count, the exceptions are sustained.

Verdict set aside.

SMITH, J., did not sit: the others concurred.