
    Gustavus Gallegly v. Kansas City, Memphis and Birmingham Railroad Company.
    1. Railroads. Passenger train. Conductor. Code 1892, \ 3563. Conservator of the peace.
    
    A conductor of a railroad passenger train, under Code 1892, § 3563, providing that if any passenger be guilty of disorderly conduct, etc., upon any passenger train the conductor may stop the train, etc., and eject him, is a conservator of the peace.
    2. Same. Duty to protect passengers.
    
    It is the duty of the conductor of a railroad passenger train, under the law, Code 1892, § 3563, to protect the passengers not only from assault but from insult, blasphemy, obsenity and unseemly conduct.
    3. Same. Conductor's rights. Self-defense.
    
    A conductor of a railroad train has an equal right with private citizens to defend himself from unprovoked assaults and to resent gross and wanton insults.
    Prom the circuit court of Marshall county.
    Hon. Perrin H. Lowrey, Judge.
    
      Gallegly, the appellant, was plaintiff, and the railroad company, appellee, was defendant in the court below. From a judgment in defendant’s favor, the plaintiff appealed to the supreme court.
    The evidence for plaintiff was substantially as follows: Plaintiff, who was a railroad contractor for the Illinois Central Railroad Company, boarded defendant’s passenger train at Holly Springs, Miss., to go to Memphis, Tenn. He did not purchase a ticket, and when the conductor came for his fare he gave him money in excess of his fare, at the same time handing him a pass which plaintiff had over the Illinois Central Railroad; plaintiff testifying that he thought the conductor, as a courtesy among railroad men, might pass him, and return his money. That the conductor did not have the change, and went with the pass and the bill handed him by plaintiff, and in a short while a brakeman brought plaintiff his change, but not the pass. That the conductor afterwards came back through the car where plaintiff was — the smoker — when plaintiff asked him for the pass. That the conductor denied having received the pass, and plaintiff repeated that he had given it to him, whereupon the conductor called plaintiff a liar, and plaintiff then’struck him, and a fight ensued, and they were separated by those present. That at the next station the conductor telegraphed ahead, and had plaintiff arrested and taken off the train. That he was held by the officer until the conductor telegraphed back that no charge would be made against him, and he was then released.
    The evidence of defendant was to the effect that, when plaintiff asked the conductor for the pass, the conductor told him that he had not had it, and, after insisting for some time that the conductor did have it, plaintiff became very abusive, and called the conductor a damned liar, and repeated this several times, and applied various obscene and profane epithets to the conductor, and the conductor then said, “If you say that I have got your pass, you are a damned liar,” when the fight began, and they were separated, and that plaintiff went to his satchel and got bis pistol, and threatened to kill the conductor, and kept up the abuse of the conductor, using profane and vulgar language, and that the door between the smoking car and the ladies’ coach was open, and he could be heard there.
    Plaintiff asked the court to instruct the jury that if they believe from the evidence that the conductor refused to return the pass to plaintiff, claiming that he did not have it, and while plaintiff was insisting that he did have it the conductor called plaintiff a liar, or a damned liar, and plaintiff, smarting under the insult, struck the conductor, and the conductor then telegraphed ahead, and had plaintiff palien from the train and put under arrest, when plaintiff was making no disturbance, the action of the conductor in insulting plaintiff and ejecting him was wrongful, and the jury should find for the plaintiff. The court modified this instruction by adding, “unless they further believe from the evidence that the conduct of the plaintiff was such as to justify the actions of the conductor.”
    The court refused to instruct the jury, for plaintiff, that it was the duty of defendant to return the fare to plaintiff from the point where he was ejected to Memphis, regardless of whether he had a right to recover other damages or not.
    The court instructed the jury, for defendant, that if they believed from the evidence that plaintiff was a passenger upon defendant’s train, and that he was guilty of disorderly conduct in cursing and abusing the conductor, or had a pistol, and was threatening the life of the conductor, or used obscene, vulgar, and profane language on said train, the conductor had a right to eject him, using only such force as was necessary to accomplish his removal; that the conductor had a right to resist any assault made upon him, and to defend himself, and, if plaintiff assaulted him, he had a right to resist such assault by using-such force as was necessary to protect himself. It also instructed the jury that, if they believed from the evidence that the conduct of plaintiff was such as required his removal from the train, tbe conductor was not bound to return to bim tbe money-paid for bis fare to Memphis, before sucb removal.
    Plaintiff excepted to tbe giving of these instructions, and to tbe modification of bis instruction, and tbe refusal of tbe instruction above mentioned as having been refused. Plaintiff’s motion for a new trial was overruled.
    TV. V. 8'ullivcm, for appellant.
    Tbe conductor was in fault, from tbe inception of tbe difficulty, and his conduct made tbe company liable.
    All passengers who have paid their fare, as appellant bad done, have tbe right to be civilly and politely treated, and protected, for that matter, from insult while on tbe train.
    Even if appellant was in tbe wrong, that did not give tbe right to put bim off' tbe train, much less did it give tbe right to put bim in jail, or deliver bim over to tbe officers to be dealt with as a criminal.
    Tbe very act of tbe conductor in wiring, directing bis release from custody, was a confession of bis wrongful conduct.
    Even if tbe conductor bad a right to put appellant off tbe train, still be bad no right to put bim in jail, and surely bis money should have been returned.
    Tbe instructions given for defendant and refused for plaintiff were a complete perversion of tbe law. Tbe case should be reversed. 55 Ohio St. Rep., 589; s. o., 60 Am. St. Rep., 718.
    
      J. W. Buchanan, for appellee.
    Under tbe testimony, tbe conductor, under § 3563, Code 1892, bad a right to stop the train and put appellant off, or wait until be reached tbe next stop and eject bim himself, or have a peace officer to do so.
    Tbe conduct of appellant was not only dangerous to tbe conductor, but to every passenger upon tbe train; besides, a man who would use tbe language that appellant used on that occasion is not fit to associate with decent people on a train or elsewhere.
    
      We bave been unable to find any authority that supports appellant’s contentions. The statute upon which the conductor acted, authorized him to stop at any point on the line of road and, if necessary, to remove appellant, and certainly it did not contemplate that he should figure out the exact amount that might be due the party removed before he could act in the matter. The case was fairly submitted to the jury on the testimony and charges of the court, and the jury from the testimony could not rightfully have decided otherwise, and the verdict of the jury ought not to be disturbed.
   Truly, J.,

delivered the opinion of the court.

The jury, by their verdict, have certified that the facts existed as detailed by the witnesses introduced by the appellee. Accepting that version as true, the action of the conductor was not only warranted, but commendable. The appellant had conducted himself in a most outrageous manner, indulging in vulgar, profane, and obscene language in the presence of gentlemen and the hearing of ladies; and this, too, according to the testimony, in the course of an altercation in which he was himself the aggressor. TJnder these circumstances, the conductor was fully empowered, under § 3563, Code 1892, to have appellant ejected from the train, and, if necessary for the protection of himself or his passengers from assault or insult, it was his duty to do so. It is true, as stated by appellant in his testimony in the court below, that the rules require the conductor to be courteous to passengers; but this js a reciprocal obligation, and neither can wantonly violate it with impunity. A conductor in charge of a passenger train is a conservator of the peace, under the law, charged with the duty of preserving order and protecting the passengers upon his train. It is his duty to protect his passengers not only from assault, but from insult, and from blasphemy, obscenity, and unseemly conduct. A conductor has an equal right with private citizens to defend himself from unprovoked' assault, and to resent gross and wanton insult.

We find no error prejudicial to. appellant in tbe rulings or instructions of tbe court below. Appellant did qot, at tbe time of bis ejection from tbe train, request tbe return of tbe unused part of bis fare, nor is tbis counted on in tbe declaration.

We approve the finding of the jury on the facts, and the judgment is affirmed.  