PITTSBURGH, C., C. & ST. L. RY. CO. v. RUSS, 67 F. 662

WOODS, Circuit Judge. This action was for the wrongful removal of the appellee from a passenger train of the appellant. The case is here the second time, and for a fuller statement of it reference is made to the opinion reported in 6 C. C. A. 597, 57 Fed. 822, 18 U. S. App. 279. The first recovery, which was for $1,000, was reversed because the jury was instructed that punitive damages might be allowed if the injury was wanton.

The judgment against which relief is now sought is for $2,500, and the errors assigned again relate to instructions given and refused, but it is stated in the brief of appellant that the only error relied upon is the refusal of the court to give the instructions asked. There are two of them.

The first is to the effect that railroad companies have the right to issue nontransferable mileage tickets with reasonable conditions attached, like those attached to the ticket sold by the appellant to the appellee, and in regard thereto to issue reasonable instructions to conductors, like those shown to have been issued hy the appellant to its conductors.

All evidence in respect to the ticket and its conditions, and in respect to the rules and regulations of the company on the subject, was introduced on behalf of the appellant, and the argument in support of the proposed instruction is that: “If the conditions attacked to the ticket, and the instructions of the company under which the conductor was acting, were reasonable, and such as the company might lawfully make and enforce, and the conductor was acting thereunder in good faith, with no purpose to oppress or wrong the passenger, the defendant in error was not entitled to damages for any increased humiliation and shame and consequent mental suffering resulting from the determined action of the conductor in obedience to said conditions and instructions.” The proposition is too remote and intangible to be availing.

There is nothing in the conditions of the ticket, or in the regulations of the company in respect to tickets of that class, which a fair-minded juror, though unaided by an instruction, could have regarded as unreasonable, or as affecting the amount of damages, which were to be awarded, as the charge of the court required, on the basis of compensation for the injury actually suffered by the appellee, including the humiliation and consequent mental suffering caused by the action of the conductor.

The extent of that injury—punitive damages being excluded—in no manner depended upon the intentions or good faith of the conductor. It was material to consider only what was done by the conductor, and the consequent injury to the appellee. By the second request the court was asked to charge that if the plaintiff resisted the conductor’s efforts to eject him, so as to require the use of force, and such resistance aggravated or increased the nervous trouble under which the plaintiff claimed to have been suffering, the resistance and resultant increase of suffering should be considered in mitigation of damages.

Our views upon the question of the right of a passenger upon a railroad train to resist wrongful expulsion are indicated by our former opinion in this case. The rule declared by the supreme court in Railroad Co. v. Winter’s Adm’r, 143 U. S. 60, 73, 12 Sup. Ct. 356, is that one rightfully on a train as a passenger has the right to refuse to be ejected, and to make a sufficient resistance to denote that he is being removed against his will. There was, therefore, no error in refusing the instruction in question.

If it had been limited to injury caused by a voluntary or intended excess of resistance over what was necessary to show the unwillingness of the appellee to be expelled from the train, it ought perhaps to have been given; but, to the extent of rightful resistance, if increased injury resulted, the right to increased compensation necessarily followed.