
    Close v. Cooper.
    'Where a wounding with a knife is sought to be justified on the ground of self-defense against a prior assault, and the circumstances do not show any reasonable apprehension of loss of life, or of great bodily harm, it is error for.the court, after having charged the jury that a person assaulted may use all the force necessary to repel the assault, to refuse to charge, in substance, that, if the resistance were disproportionate to the assault, or excessive, the defendant would be liable.
    Motion for leave to file a petition in error to the District 'Court of Sandusky county.
    The original action was brought by the plaintiff in error .against defendant in error, to recover damages for an assault and battery. The defendant answered that the alleged assault and battery was committed in self-defense. In the •court of common pleas, the verdict and judgment were rendered for the defendant.
    On the trial, the testimony offered tended, among other things, to prove that the defendant went upon a train of ■cars, on the Lake Shore and Michigan Southern Railway -Company, at Toledo, Ohio, to take passage via Lindsay to Monroeville; that, before reaching Lindsay, the defendant, “because he could not obtain a seat in the cars, refused to ■deliver his ticket to the conductor, or pay his fare. At Lindsay, where the train stopped, the conductor, with the .■assistance of other employes of the company, among whom was the plaintiff, undertook to eject the defendant from tthe car. The defendant insisted, and, in the scuffle which •ensued, the defendant inflicted an injury with a knife, which be held in his hand, upon the plaintiff, which constituted the cause of action stated in the petition.
    The court instructed the jury as follows: “ The railroad •company was bound to furnish for passengers suitable •coaches and conveyance, and such conveniences as are usually and ordinarily provided. The defendant had a right to ■occupy a seat; but if he entered the cars at Toledo, and found no place to sit, he could either refuse to go on that train, and bring his action for the refusal and neglect of the company to provide him a seat, or he might go on the train; but if he did go, knowing he could get no seat, he had no right to refuse to give up his ticket, nor demand money back for the distance he stood up. Under such circumstances, the company’s agent, the conductor, would have the right to demand Cooper’s ticket, and, if he refused to give it up, could rightfully eject him from the train. The regulation read to you is a reasonable one, and if the •conductor demanded Cooper’s -ticket, and he refused to give it, the conductor had a right to eject him, and to use •all force reasonably necessary for that purpose; and had a right to call such assistants as he chose, and had the right to call the plaintiff' to assist him; and if plaintiff was assisting, and using no more force than reasonably necessary, the defendant had no right to resist him. If Cooper did resist, and inflicted injury upon Close, he is liable, unless you find that this point, Lindsay, was a regular station, and the train had stopped there because it was a regular station, and that Cooper had offered his ticket to the conductor before they attempted to put him off. If he did offer or tender his ticket before they attempted to eject him, and you find this was a regular station, the defendant could lawfully resist the attempt to eject him, and use all necessary force to repel them, and the law will not measure very accurately' the amount of force necessary for his protection.”
    Thereupon the plaintiff' specially requested the court, among other things, to charge the jury as follows: “The jury will inquire whether the force used by Cooper in repelling the attempt to eject him was suitable and proper under the circumstances; if not, then the defendant is liable in this action.” Which the court refused, and the plaintiff excepted, and also excepted to the charge as given, in respect to the amount of force which the defendant might have lawfully used in resisting the attempt to eject him.
    On petition in error the district court affirmed the judgment below.
    
      Lemm.on, Finch § Lemmon, for the motion,
    claimed that the charge given, and the refusal to charge as requested, violated fundamental rules and principles as to resistance; that the force used by Cooper should not have been disproportionate orexcesive, in view of the danger impending* Brown v. Gordon, 1 Gray, 182; 2 Greenl. on Ev., § 95. And see 2 Arch. Cr. Pl. 224-227; Floyd v. Slate, 36 Ca. 91. Scribner v. Beach, 4 Denio, 448; 2 Met. 23; 1 Ohio St. 66 ;. 3 Ohio St. 167; 7 Blackf. 74; 5 Gray, 475; 2 Arch, on Torts, 693.
    
      Bartlett § Finefrock, contra.
   McIlvaike, J.

The instruction requested, or its equivalent, should have been given to the jury. The instructions given were defective and insufficient, as they do not contain the proper limitation upon the right to use force to-repel an assualt.- It is not enough for a defendant, in order to justify an assault and battery, to show that he was acting in self-defense; but he must also show that no more force was used by him than the exigency reasonably demanded. The doctrine is well stated by Bigelow, J., in Brown v. Gordon, 1 Gray, 182: “If he (the defendant) was guilty of an unreasonable and disproportionate degree of violence toward the person of another, he is liable for the excess, although he was acting in self-defense. In such cases, the question is not merely whether the defendant was the assaulted party, and so had a right to repel force by force; but also as to the degree of the beating, and its proportion to the assault of tbe plaintiff. The instructions required the jury in this case, merely to find the fact that the assault complained of was defensive, whereas they should have been instructed to consider and determine whether it was disproportionate to the assault relied on for justification,” etc.

In the case before us, the defendant, without any reasonable grounds for apprehending danger to life, or great bodily harm, as the testimony tends to show, inflicted a wound ■with a dangerous weapon. Whether accidentally or purposely, it is true, was a matter of contention; but, to say the least, it was a case in which the jury, under proper instructions, should have been required to find whether or not the resistance, under the circumstances, was in excess of ■the right of self-defense.

Motion granted, judgment of the district court and of the common pleas reversed, and cause remanded for a new trial.  