
    REGNER v. GLENS FALLS, S. H. & FT. E. ST. R. CO.
    (Supreme Court, General Term, Third Department.
    December 6, 1893.)
    1. Cabbiebs—Ejection of Passenger.
    In an action for the forcible ejection of plaintiff from defendant’s car, a rule of defendant requiring conductors not to allow intoxicated persons to ride in the cars is not admissible, where it was not claimed on the trial that plaintiff was intoxicated, but. it appears that he was afflicted with St. Vitus’ dance, which produced involuntary motions, somewhat resembling those of an intoxicated person. ,
    2. Same—Evidence.
    In an action for forcible ejection from a car, it is not competent for a conductor to testify that he did not use more force than was necessary, as that is a question for the jury.
    Appeal from Washington county court.
    Action by Augustus Regner, by William Regner, his guardian,, against the Glens Falls, Sandy Hill & Ft. Edward Street-Railroad Company. From a judgment in favor of plaintiff, defendant appeals.
    Affirmed.
    Argued before MAYHAM, P. J., and PUTNAM and HERRICK, JJ.
    Grenville M. Ingalsbe, for appellant.
    A. V. Pratt, for respondent.
   MAYHAM, P. J.

This is an appeal from an order denying a motion for a new trial, on the minutes, and from a judgment rendered on the verdict of a jury. The action was for an alleged wrongful removal of the plaintiff from defendant’s cars by the conductor of one of the defendant’s horse-railroad cars. The plaintiff recovered a verdict for $400, and the defendant seeks to reverse the judgment,, on the ground that the damages are excessive, and for alleged errors of the judge on the trial. The evidence discloses that, while one of its cars was on its way from Glens Falls to Ft. Edward, the plaintiff boarded the same, against the objection of the conductor, and was forcibly removed and ejected therefrom by the conductor. There is a conflict in the evidence as to the manner in which the force was applied, and the amount of force used; the plaintiff testifying that the conductor seized him by the throat, and injured him so that his, throat was made sore. The evidence of the manner in. which the conductor took hold of plaintiff was in part corroborated by the plaintiff’s witnesses. The conductor denies that he seized, the plaintiff by the throat, but all the evidence concurs in establishr ing the forcible ejectment from the car. The- evidence tends to prove that the conductor stated that he ejected plaintiff from the car because, from his appearance, he believed the plaintiff intoxicated. The proof, however, shows that the plaintiff was not intoxicated, but was afflicted with St. Vitus’ dance, which produced involuntary motions in the plaintiff somewhat resembling the movements of an intoxicated person. The plaintiff made no disturbance, and said nothing while on the car. The defendant offered in evidence a rule of the defendant requiring conductors not to allow intoxicated or filthy persons to ride on their cars. This rule was objected to by the plaintiff, and excluded by the court, under the defendant’s exceptions. It is urged by the appellant that the exclusion of this rule was error. It is true that the law authorizes railroad companies to make and promulgate reasonable rules for the government of the conduct of their employes, but it is difficult to see how the introduction of this rule could aid the defendant, as the proof does not bring the defendant within the operation of such rule, as there is no pretense that the plaintiff was intoxicated, and the rule would afford no protection to the defendant for excluding from its car an unfortunate person, suffering from a disease not embraced within the letter or spirit of the rule. The defendant judged, at its peril, as to the application of such a rule in a given case, and, if it erred, it would be answerable for its mistakes, or that of its servant, acting under its authority. It was within the power of the conductor to have ascertained the real cause of the plaintiff’s appearance, and thus to have avoided the mistake, if mistake it was.

One of the questions for the jury to determine was as to the degree of force used by the defendant in ejecting the plaintiff from the car, and, while it was competent to prove what was in fact done, it was not error to exclude the evidence offered by the defendant, of the conductor, as to whether or not he used more force than was necessary. That was for the jury to determine, from the facts proved. We see no errors in the rulings of the judge in admitting or rejecting evidence, or in his charge. Not can we say that the verdict in this case is so large as to evince prejudice, passion, or corruption on the part of the jury. They heard the conflict in the testimony as to the manner in which the plaintiff was removed from the car, the language used by the conductor, and the alleged injury suffered by the plaintiff, and were the proper judges of the truth of the respective stories, and had a right to believe the plaintiff’s version, if it commended itself to their judgment as true. The judgment and order should be affirmed, with costs. All concur.  