PITTSBURGH, C., C. & ST. L. RY. CO. v. RUSS, 57 F. 822

WOODS, Circuit Judge, (after making the foregoing statement.) We do not assent to the proposition that, by accepting the mileage ticket with its special conditions, the defendant in error agreed that any conductor to whom he should present the ticket might decide for him, as well as for the company, whether or not he was the rightful holder. 'There is nothing expressed nor fairly to he implied from the conditions to that effect.

As the representative of his company, acting under such rules as it has prescribed for him. a conductor, in collecting fares or tickets "necessarily concedes or rejects the right of the passenger to ride.” He must determine whether or not money offered him is genuine, or, if it he a ticket or pass, he must decide whether it is valid, or for any reason is not available to the holder; and if he decides incorrectly, to the passenger’s injury, the company will be answerable in damages. .Bish. Noncont. Law, § 1095.

And there is no good reason why the purchasers of tickets like that in question should he subject to a different rule. It is insisted that the defendant in error should have sought Ms remedy in an action for a breach of the special contract, and not in an action of tort; hut it is well settled that in such cases the action may he in either form, at the election of the plaintiff. Cooley, Torts, 90, 91; Railroad Co. v. Fitzgerald, 47 Ind. 79; Reese v. Telegraph Co., 123 Ind. 294, 24 N. E. Rep. 163; Railway Co. v. Hurst, 36 Miss. 660.

The second of the instructions asked and refused, even if sound in theory, is objectionable, because upon a strict construction it would require the jury to give the defendant in the action a double advantage, by refusing the plaintiff anything on account of injury brought upon himself by resisting the conductor’s effort to eject him, and also by considering that resistance in mitigation of the damages otherwise allowable.

Upon • the question whether or not a passenger may resist by force an unwarranted expulsion from a railway train or other public conveyance, and be entitled to compensation for injuries, which, but for that resistance, he would not have suffered, the decisions are not in complete accord. In Railroad v.

Connell, 112 Ill. 295, the supreme court of Illinois held, in harmony with prior decisions of that court, that a passenger who resists a wrongful removal “cannot recover for the force used by the conductor in putting him off, when no more force is used than necessary.” Recognizing the right of the party so injured to recover, besides the amount of direct pecuniary loss, “reasonable damages for the indignity of being expelled from the train,” the court, in support of its view of the question, among other things of evident if not conclusive cogency, said: “When the appellee was notified by the conductor that his ticket was not good and would not be received, it was his duty to leave the train in a peaceable manner, and hold the company responsible for the consequences, rather than resist or undertake to retain his placeen the train by force.

A train crowded with passengers — often women and children — is no place for a quarrel or a fight between a conductor and a passenger, and it would be un' wise and dangerous to the traveling public to adopt any rule which might encourage a resort to violence on a train of cars. The conductor must have the supervision and control of his train, and a demand on his part for fare should be obeyed, or the passenger should in a peaceable manner leave the train, and seek redress in the courts, where he will find a complete remedj for any indignity offered and for all damages sustained.” But in English v.

Canal Co., 66 N. Y. 457, it was held that the passenger “was clearly justified in resistance to the. extent necessary to prevent his being ejected;” and in Railway Co. v. Wolfe, 128 Ind. 347, 27 N. E. Rep. 606, that “he had ,the right to malte reasonable resistance, as he did, by holding onto the seats until he was forced loose and taken from the cars.” This last expression is in substantial harmony with the decision of the supreme court of the United States in New York, etc., R. Co. v. Winter’s Adm’r, 143 U. S. 60, 73, 12 Sup. Ct.

Rep. 356, where it is said: “If he was rightfully on the train as a passenger, he had the right to refuse to be ejected from it, and to make a sufficient resistance to being put off to denote that he was being removed by compulsion and against his will.” In respect to the measure of damages, the court erred in instructing that the jury might allow vindictive or punitive damages if it found that, in removing the plaintiff from the train, the conductor’s action was attended with malice, wantonness, or oppression. In the case of Railroad Co. V. Prentice, 147 U. S. 101, 13 Sup. Ct.

Rep. 261, decided since the trial of this case, it was held that a railroad corporation is not liable to exemplary or punitive damages on account of illegal, wanton, and oppressive acts of its conductors or other subordinate agents.

The decision rests upon the principle, applicable alike to corporations and individuals, that "no man should be punished for that of which he is not guilty;” and, consequently, Unit it is enough that the principal is responsible for the actual consequences of wanton or malicious conduct of an agent within the line of his employment, and not beyond that, unless he has been in some way particeps criminis.

It has been suggested that the conduct of the conductor in this instance had the sanction of the railroad company, because of the instructions which had been issued to conductors in respect to mileage tickets, and because the general ticket agent of the company was present upon (he train, and assented to the conductor’s action. The instructions referred to do not seem to us to have been objectionable.

While enjoining upon conductors diligence to prevent improper use of mileage tickets, they require nothing inconsistent with the rights of the passenger, and contain no warrant or even suggestion that, in enforcing the conditions of the ticket or the regulations of the company, the conductor should proceed in a wanton or oppressive manner.

While it appears that (he general ticket agent of the company was upon the train, though not in the car from which the plaintiff was ejected, and that (he conductor conferred with him about the plaintiff’s ticket, it is not shown that he had authority over the conductor or attempted to dictate or influence his action towards the plaintiff. Besides, if any question was to be made of the ticket agent’s participation in the expulsion, or of the company’s responsibility othei\ wise for the wanjonness or malice of the conductor, it should have been submitted to the jury for decision upon the evidence.

This court cannot review questions of fact in a case at law. It is also urged (hat the erroneous instruction should be deemed harmless, considering the amount of the verdict, because the jury was told that, in the opinion of the court, the conductor was not malicious, wanton, nor oppressive in his conduct towards the plaintiff, but acted in good faith, and it is not to be presumed that the jury went contrary to that opinion.

In the federal courts the opposite theory prevails, it being well settled “that a judge of a court of the United Btates, in submitting a case to the jury, may, in his discretion, express his opinion upon the facts; and that, when no ride of law is incorrectly stated, and all matters of fact are ultimately submitted to the determination of the jury,” such “expressions of opinion are not reviewable on writ of error.” Rucker v. Wheeler, 127 U. S. 85, 93, 8 Sup. Ct. Rep. 1142, and cases cited.

The error of law cannot be cured by an expression of opinion upon the question of fact concerning which the law is announced, because the jury is not bound by, and presumably will not follow, the court’s opinion concerning the fact if the weight of evidence is to the contrary. The verdict was for $1,000, and it is insisted, but we cannot say judicially, that there was assessed no more than just compensation for the injury which the plaintiff suffered. The judgment is reversed, at the" costs of the appellee, with instruction that a new trial be granted.