
    OSCAR J. CONVERSE vs. THE WASHINGTON AND GEORGETOWN RAILROAD COMPANY.
    At Law. —
    No. 12524.
    I. A conductor on a street-railwaj>- car may eject a person wlio is intoxicated and has vomited in the car, provided no more force is used than is necessary. „
    II. A railway compauy is liable for the willful act of tko conductor in expelling a passenger from a street-car.
    III. When a new trial is asked for on the ground that the verdict is contrary to evidence, or the damages excessive, a case should be made bringing up all the evidence taken at the trial,' so that the court can dispose of the motion in view of all the circumstances of the case.
    STATEMENT OE THE CASE.
    This was an action to recover damages alleged to have been sustained by the plaintiff while being ejected from a street-car by a conductor of the defendant, in the city of Washington, on the 18th day of May, 1874.
    On the trial, the plaintiff gave evidence to the jury tending to show that, on the 18th day of May, 1874, he got upon one of the defendant’s cars on Pennsylvania avenue, between Fourth-and-a-half and Sixth streets, in the city of Washington, and paid his fare to the conductor of the said car; that he took his seat in the car, and that he had in his mouth the stub of a cigar, which was unlighted; and that the conduct- or approached him and told him to stop smoking, and said to him, “ You are smoking; I have spoken to you once about this;” and that thereupon the plaintiff threw, or attempted to throw, the cigar out of an open window of the car; that the conductor immediately seized him by the right arm and pulled and dragged him out on the rear platform, and he made no resistance; that the car was going pretty fast, and the conductor threw him upon the ground without stopping the car, thereby injuring^ his arm and shoulder where he had been previously wounded, and from which he was still suffering, and sprained his thumb, and that such sprain was only an ordinary sprain.
    
      The defendant gave evidence to the jury tending to show that when the plaintiff mounted the car of the defendant, on Pennsylvania avenue, between Fourth-and-a-half and Sixth streets, he was in a state of intoxication; and that he took his seat in the rear end of the car, and soon afterward began to vomit in the car; and that the conductor of the car spoke to the plaintiff, and told him that the ca.r was no place for such purposes, and that he ought to get off, and that, thereupon, the plaintiff turned and put his head out of an open window and vomited down and over the side of the car; that soon afterward the plaintiff undertook to get off the car, and the conductor, in order to allow him to alight, stopped the •car; that, as the plaintiff was about to step down upon the ground, the defendant’s conductor, in order to prevent accident, (the plaintiff being in an intoxicated and staggering condition,) put his hand upon the plaintiff’s shoulder; that the plaintiff stepped to the ground, but, before the conductor could start the car again, the plaintiff stepped on the platform of the car and seized the conductor by the coat; that the conductor broke the hold of the plaintiff upon his person, and again stopped the car, in order that the plaintiff might get off; that the plaintiff stepped to the ground again; but before the car was started the second time, stepped back and seized the conductor with both hands, and, while the conductor was trying to stop the car, jerked the conductor, and both of them fell off the platform on to- the ground; that the conductor thereupon jumped upon the car, started it, and went op his journey.
    The defendant also gave evidence to the jury tending to show that the only injury received by the plaintiff was an ordinary sprain of the thumb; and that, after the lapse of a week, there was no sign of the injury remaining.
    The testimony on both sides being closed, the counsel for the defendant' requested the chief-justice, presiding at the trial of said cause, to instruct the j ury as follows, to wit: “If the jury find from the evidence that the plaintiff at the time of the alleged injury was intoxicated and had vomited in the ■defendant’s car, it was the duty of the conductor to eject the plaintiff, and he cannot recover; ” which instructions the said chief-justice refused to give, except with the additional proviso, as follows:
    
      “ Provided, that the conductor, in putting him off, did not use any more violence than was necessary; to which proviso the defendant’s counsel then and there excepted.
    The counsel for the defendant further requested the said chief-justice to instruct the jury as follows, to wit: u If the jury find from the evidence that the plaintiff, when he got on the defendant’s car-on the occasion of the alleged injury, had been drinking intoxicating drinks, and, in consequence of such drinking was sick and vomited in the defendant’s car, he cannot recoverwhich instruction was refused, except with the same proviso that was attached to the first prayer; to which proviso the defendant’s counsel then and there also excepted.
    The counsel for the defendant further requested the said chief-justice to instruct the jury'as follows, to wit:
    
      “ If the jury find from the evidence that the conductor told the plaintiff' not to smoke, and that the plaintiff had -a cigar in his mouth and unlighted, that the plaintiff attempted to throw the cigar out at the window, and that, thereupon, the defendant’s conductor immediately seized the plaintiff and dragged him out, and, without stopping the car, threw him off, the plaintiff cannot recover, because such an act on the part of the conductor was a wanton and willful act on the part of the conductor, and the plaintiff cannot recover from the defendant for any injury thus inflicted upon him j” which instruction was refused and an exception noted.
    The jury found a verdict in favor of the plaintiff, and assessed his damages at the sum of $1,000. The case is now here upon a motion for a new trial on the foregoing exceptions.
    W. F. Mattingly and R. T. Merrick for plaintiff:
    Master is liable for servant’s willful and wrongful acts when done in the course of the servant’s employment. Sh. & B., on Neg., secs. 65, 66; 2 Hilly, on Torts, 375.
    When the misconduct of the agent, whether willful and malicious or merely negligent, causes a breach of the obligation or contract of the principal, the principal is liable. 17 N. Y., 362, Weed vs. Panama Railroad Company; 42 Penn. St.,. 365, Pennsylvania Railroad Company vs. Vandiver; 57 Me., 203, Goddard vs. Grand Trunk Railroad Company; 100 Mass., 180, Bryant vs. Rich.; 21 Ohio St., 518, Pass. Railroad Company vs. Young; 37 Md., 277, Baltimore and Ohio Railroad Company vs. Blochen; 14 How., 408, Ph. and R. Railroad Company vs. Derby.
    
    
      Enoch Totten, for defendant, submitted the following points :
    1st. That the damages assessed by the jury are excessive : and,
    2d. That the acts of the conductor of the company, as delineated in the proofs given by the plaintiff and in the defendant’s last exception, amounted to a wanton and willful assault, and cannot be regarded as coming within the scope-of a conductor’s employment.
    The evidence in the case shows that the plaintiff’s injury was extremely slight aud that it amounted to no more than an ordinary sprain of one of his thumbs. For this the jury gave him the sum of 81,000. This was an excessive allowance.
    A railroad company is not liable for damages resulting from the wanton, willful, or malicious acts committed by its agent outside of the scope of his employment. Isaacs vs. Third Avenue Railroad Company, 47 N. Y., 122; Story on Agency, sec. 456; 2 Hilly on Torts, 422; Wright vs. Wilcox, 19 Wend., 343; Turnpike Company vs. Vanderbilt, 1 Hill, 480; S. C. 2 Com., 482; Hibbard vs. Railroad Company, 15 N. Y., 455; Weed vs. Panama Railroad Company, 17 N. Y., 362.; Railroad Company vs. Donohue, 70 Penn., 119; Drew vs. Sixth Avenue Railroad Company, 26 N. Y., 53; Danner vs. South Carolina Railroad Company, 4 Rich., 329; De Camp vs. Mississippi and Missouri Railroad Company, 12 Iowa, 348; Cook vs. Illinois Central Railroad Company, 30 Iowa, 202; Illinois Central Railroad Company vs. Downey, 18 Ill., 259; New Orleans Railroad Company vs. Harrison, 48 Miss., 112.
   ■Mr. Justice Olin

delivered the opinion of the court:

This is a motion for a new trial on a bill of exceptions.

The case is one brought by the plaintiff for damages occasioned by being put off by the conductor of a railroad car, by.which he claims to have been injured and claims damages to the amount of 810,000. A verdict was rendered by the jury for the sum of $1,000. Upon the rendition of this verdict a motion for a new trial was made by the attorney for the defendant upon the grounds, first, that the verdict was contrary to the instructions of the court; second, said verdict was contrary to the evidence; third, said verdict was unreasonable; fourth, the evidence submitted to the jury was insufficient to sustain said verdict; fifth, the damages assessed by the jury are excessive. This motion for a new trial, doubtless made upon the judge’s minutes,seems to have been overruled, and the case comes here on a bill of exceptions. We see no error in the ruling of the justice who presided at the trial. The bill of exceptions in this case only brings in question those rulings. There is manifestly no error in those. The questions whether the verdict was contrary to the evidence, or, secondly, whether the damages were excessive, are not questions that can be considered on this bill of exceptions. To enable us to do that, a case should have been made bringing before us all the evidence taken on the trial, to enable this court to judge whether, under all the circumstances of the case, the verdict was against the weight of evidence, or whether, secondly, the damages were excessive. We are precluded on a bill of exceptions to inquire into either of those questions. It seems to have been a somewhat extraordinary verdict if, as claimed on the part of the defendant, a drunken man, vomiting in the ■car, is put off by a conductor and has his thumb sprained, should be entitled to a verdict of $1,000 against the company. But the bill of exceptions in this case does not authorize us to consider those questions.

The judgment must therefore be affirmed.  