
    Augustus Regner, an Infant by William Regner, his Guardian ad litem, Resp’t, v. The Glens Falls, Sandy Hill & Fort Edward Street Railroad Co., App’lt.
    
      (Supreme Court, General Term, Third Department,
    
    
      Filed December, 1893.)
    
    1. Raileoads—Rules.
    A rule of the company, requiring conductors not to allow intoxicated or filthy persons to ride on its cars, affords no protection for excluding from its cars an unfortunate person suffering from a disease, not embraced within the letter or spirit of the rule.
    
      2. Same—Evidence.
    In such case, the exclusion of the rule, when offered in evidence, is not error.
    Appeal from a judgment of the Washington county court in favor of the plaintiff against the defendant.
    
      G. M. Ingalsbe (A. D. Wait, of counsel), for app’lt; A. V. Pratt {J. M, Whitman, of counsel), for resp’t.
   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 Fort 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 him1 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 establishing 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’s 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 authorized 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 defendants, 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 ease, and if it erred it would be answerable for its mistakes or that of its servants 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. Hor 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.

11 concur.  