KORN v. CHESAPEAKE & O. RY. CO., 125 F. 897

RICHARDS, Circuit Judge, having made the above statement of the case, delivered the opinion of the court. The right of a conductor of a passenger train to eject one who refuses to pay his fare, or is drunk and disorderly, is unquestioned, but not absolute. It is subject to limitations. In exercising it, due regard must be had to the condition of the person to be ejected, and the situation in which he will be placed when ejected. One helpless from any cause, and incapable of taking care of himself, must not be treated as one in the full possession of his faculties.

In every case care must be taken to expose the person ejected to no unusual or unnecessary hazard. At the same time, the conductor is responsible for his train, and it is not only his right, but may be his duty, to eject a trespasser or a drunken and disorderly passenger. Obviously, in doing this, he must, to a large extent, act upon appearances and in the light of probabilities. All the law requires is that he shall use reasonable care and caution. To the conductor, Korn presented himself as a young man under the influence of liquor, but sensible of his surroundings and capable of controlling his movements.

It is true, the conductor was told he was not fit to travel; but this was coupled with the information that he had no money, and the reasonable inference was he was not fit to travel because he had no money. After it was reported that he had money, no other reason being suggested why he was not fit to travel, the conductor naturally said, “I guess we will have to take him,” and the train was started. Immediately the episode occurred which resulted in Korn’s ejection from the train.

Having displayed his money when the train was at the station, he refused, with an oath, to pay his fare, or say where he wanted to go, after the train got under way. So the train was stopped, and he was put off. There was nothing about him at this time to indicate that he was helpless and unfit to. take care of himself.

He had insisted on getting on the train, and succeeded, despite the plan of the station agent to take him to Portsmouth; he had walked up and down the aisle of the car; he had shown his money, with a boast, when told he had none; and finally, when put off for refusing to pay his fare, he went without resistance, saying, “I might as well get off here as any place, for I am going to hell anyhow.” None of these things indicated incapacity of either mind or body, but rather the reverse.

He was boastful, rude, and reckless, as drunken men frequently are; but he seemed to know what he was about, and to be able to do what he desired. It is to be observed, moreover, that the conductor did not have presented to him the case of a passenger bound for a known station.

Korn had no destination, and, when the conductor asked him where he was going, replied, “None of your d-d business.” Under these circumstances, with the train just started, and the knowledge that there were persons at the station who had tried to keep Korn there, the apparently proper and prudent thing was to stop the train at once and put him off. And this was done. He was put off 300 yards from the station, within its yard limits, in the outskirts of the village of Springville, about 7 o’clock at night, with two lighted houses not 50 feet away, and within easy call.

The conductor must have believed, as he stated to a passenger, that he was leaving him “not far from friends.” The next morning the young man was found dead not more than 25 feet from the track at the place he was put off the train. He was lying on his back in a natural position, his hat folded under his head. A bottle with a liquor containing alcohol and a drachm bottle half full of cocaine were found upon his person. One physician thought he died from exposure; another, from cocaine poisoning. Whatever the cause of death, it was plain he had invited its coming, and silently awaited its work.

There were lighted houses in sight, but he started for none of them. There were people near, but he called to none of them. When he stepped off the train saying, “I might as well get off here as any place, for I am going to hell anyhow,” his last trip here had ended, and he was evidently contemplating a longer journey. We think the conductor was justified in ejecting Korn, under the circumstances; but, if his act was wrong, we fail to see any connection between it and Korn’s death. Korn was not put off in a dangerous place, nor at a dangerous time, nor under dangerous circumstances.

His death was not occasioned by any danger which the conductor could have foreseen. The only danger to which the ejection could expose Korn was the danger of being able to do what he desired; and he would have been exposed to this danger if he had been put off at the next station, or if he had never got on the train at all. But it is insisted that, in point of fact, Korn was helpless through the use of cocaine, and that the station agent was aware of this, and that his knowledge must be imputed to the company, although not communicated to the conductor.

It does not appear from the record that the station agent was fully advised as to Korn’s condition, and the cause of it. The young man was apparently in a drunken stupor much of the afternoon, but, revived by the fresh air, he threw off the stupor upon the arrival of the train, and resumed control of himself. He refused to return to Portsmouth., and insisted on taking the train. Then the agent dropped the attempt to control him, and returned to Portsmouth. As a matter of humanity, he had done what he thought he could. He was under no obligation to arrest Korn and place him under detention.

The circumstances would hardly have justified such action on his part. But if the agent did know Korn’s condition, such knowledge cannot be imputed to the company, because it was not his duty either to pass upon Korn’s fitness to travel, or to lay before the conductor information on that point. The knowledge of the agent to be imputed to the company must affect some matter lying within the scope of the agent’s authority. It must be a part of the agent’s duty either to act upon the information himself, or lay it before others for action.

Information thus received by the agent is imputed to the company because the company is presumed to be present, acting in the very matter to which the information relates. Mechem on Agency, § 725; Story on Agency, § 140; Waynesville National Bank v. Irons (C. C.) 8 Fed. 1; Congar v. Railway Co., 24 Wis. 157, 1 Am. Rep. 164. Now, it was not the station agent’s, but the conductor’s, business to decide whether Korn should be permitted to enter the train and remain on it, or should be rejected or subsequently expelled.

Moreover, if the station agent had told the conductor all he knew about Korn, the conductor would still, in our opinion, have been justified in receiving him as a passenger, and in subsequently ejecting him upon his refusal to tell where he was going and to pay his fare. The conductor necessarily assumed, when Korn boarded the train and showed his money, that he had a place of destination, and that he would pay his fare. There was nothing in Korn’s condition or conduct which would have made it wrong for the conductor to receive him and carry him as a passenger.

That he had no destination and would pay no fare was not known and could not be anticipated by the conductor. The conductor therefore did right in receiving him as a passenger, and, for the reasons we have given above, did not do wrong in ejecting him when he acted as he did. Agreeing with the trial judge that there was a failure of proof upon essential points, the judgment of the court below is affirmed.