pfJ"[iJms'Jv;.'R. (}o; libd"Diliis f:' mte/i.by O'(i{l'tillel' :to ·su8'.t'ltilrr
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and that they'fDus:tisubjniit and 'e-eek 'tedre'ss Jelsewhsre;""dd nm pfisitian/ Ih:the 1irst/therreourt;held passenger eotild"::not\ forciblj enWHhe l'adies' after alt-boligh, uhder'tlfec'J."tbunUta.:n'ces,' lie to ;:l'JU:tl itdolliji not Ilold'; tliaf;"beiWg' could: not' ;{orCliiilyresist 'nnlaiwftil" ej'eCfI6n;' 'N' the ffltse (the coutt'l!limply ftileg ! that; ; cofi'dluct(jrllitd fd1gn'i ttf put' bim' off, 'the; f caaes,cii.ed aeeJh:toplh.l6e h tIle duty-:6!-<lsubmission' dh that' the cO'mmandto lea HbW' far 0ll. of liis rigliftoremltin},Di:ay J llarry' his'ieslstarice, mitj' lie- 'UouI>tftil; I '1Jt11l Iibs6IUte aft 'is(;I1(jt his <iuty and lawful tesistarliie not preclude the rightofl'ecowij:" showed that tbe' plaintiff refttseff'to' leltV'e;: and; when' condubwr laid'{hand!! ion h!er,she rfastened' fe'6t: ittb'out' the rHngs of the seat;'and'defendant that 'iii iirig this unlawful reSistartcefo"thehrith6iity tif tIre 'conductor >irijury, if any; .was' 'abne, 'arid that' hecdiild lawftilly usij al! [force' 'necessary to ovilrcoIhe' it;' 'The cases do' n6t"shbW tliat,the ttJndnctor carl la.wfliUyjemploY' any force to remove 6rM rightfully ili,'tbe cat,' used' iawrongful i ; even where the expulsion is righfful fbtce must not be arid where it iifwrongfnl reil.s()Mbleresistance cann6't be unlawfuL" :Still; the to determhie' whom' he will eject,' 'and can command force generallf sufficient toaccomplish 1he rerllOval, so that resistance of any kind, enough' to show'that the wrong is nofacquieSC'ed In by the plaintiff, is useless where the condUctor is deter. mihed on the in sOfue 'woUld lead to affrays .or other turbulence, of other passengers. I think,thetefore,n6 fule ' should' ,be whidh it. . Such re'si'stance iii 'But 'wherepersonalitij\.tries ate received I am of tli (opinion that unnecessa.ry v.7,no.1-5
61eetfon; 'ittthbngli
cat'
oeing
'tne
bnns
'har:
IPl!>Y' but
1
as
the
injury, befln. in.. },5AA .· ,jP;a!Js. 874; ,Eng. ,q(),. . 1·,)454., 'r,here:WM: ,0. counLin this M,; tQ,th8lt .. theJ.'6 wa.s tpr . \ cQnQ.uqtor Wligbt. use and to bU,t if raffie tq was untp',en. would gov!3rn : cgi ,NI,?wE\d , ,to, look at, the pt, injury SUlb OA.. aQcq1plt 'Af " Wit, 6J;rpr in any 'Vi:ew"o,{ rightlitof the 1:1y co,qrt ,;was ,JUore favorablepll, to, F:Wtn, tf.le/ author;ities oited wOllld an unquali:o! .to Wfongf1l1 expulsion. , Wbite is only.cumulitor· anq. while, uEleful, .per4aps, to ant, not having ,produced it., fhe,conduct9r ,down the names,<lf prej>epce of one witness in the car has, b,een. the trial ij!l im. it Nl.Em, that this pxes/:lut.. , ,The only a.s to the amount of this y.eril.ict. If J4ad been onJ4e jury! should hlil<vepeen contAIlt -with $?,OOO ;,buUt Q1W,stion for thejuTY, I;IJ,ld not ,the court, to say. what is .necin",a ,case .. Pass. 576. In revielVing}he, ,a,p;tqtionJ0l:' a new trial it }Ilust th!1tit l'esJ?lt of pas13iQn, prejudice, or un,dije ap.dwhile it .duty pi the court to protect the against: Bu;Ch by setting aside excessi:va not of the jury. Counrn ,tJ;te. 0lte .hang, (tited large ver<lic,tl? and, on the very small ver-
no
I
diets the jury that theyIhust verdict, an'd. be careful not to' allow prejtidice'agiiixi:st l?r 'ariY passion engertdered' by the 'facfs of the theit judgment; and, on thebther to' the public'justice, if they. found 'wrongful; flictingsuch damages as iIi t'Heil' jUdgment would evil. It was a :case where prejudice any' such existed) was set, 'aga.il?-st prejudice on account' .of color and social degradatio# by reason of an alleged' want'hf chastity; and counsel oneitber side backward invoking thesesnpposed-: while ,the court 'tried 'to both from themhid,sof the jury/ composed entire1;f of white men of the very highest character and The proof of the 'plaintiff, if' true, sh6wed a' very brutal sault upon her. She exhibited her dislocated thumb jury, and proved by unimpeachable who saw her immediately afterwards, that she had on the back of' abrasions caused by severe choking. One 'to seeing the choking through the car window, and the plairitifT certainly complained of 'it and 'her other injuries to the intendent of the road, who happened to be at the station,'arid who promised to- investigate the matter. On the other hand; Governor Stone, who wais1present in car; says he saw no such violence, and that ifit had occurred he must have it, while the conductor denies all choking and injury to her thumb. 'The theory of the defendant is that these injuries were fabricated for the occasion. The testimony of the dispe, 4:tll,d:no dQlJbt was,. by t:b.e jury, interested, reconciled upon the governor was mistaken in saying that the injuries could not have been inflicted without his seeing it. The conductor agreed that he had to use which she. had force enough to lift her frorq. clasped her feet, and he described how he had accomplished it 'Vithout choking; might have done the injul'Yw;ltho]1t Governor Stone .. tbJs :n;iay .have been, the jury weighed all the testimony, and they; were the tribunal to reconcile it 'or detel1mine where the truth lay, and
in
68 the. c01;lrt cannot .!,ay that. they ahould haved&,: otherwise. was caHea to the conflict of testiII1-on.y, and to14what were the. rules and; f,esting t4ey,. had, the. benefit pf thorough argqItV;lnt; by c()lltrasted n,ess, ,':'and proper cllarge, they have the fact. "I cannot turb verdict. . '" . another ground,)rrespectiye.of ;the fwegoing, p,n, Wh}chthisverdict be as insistedhy plaiptW, which is that Wtis,w9man a ticket by an agEfntwho swears her character, and she having acquireq.a:seat lip none of equal the defendant cqulq not, in the of bad conduct at the ·.time, exercise any right to in that car on account of general bad reput,atjon. But it is unnecessary to exaw-inethis sub· conclusion on the other jectcritically, since I have points that would lead to... the >,same result if this should be ruled in plaip.tiff,'s ,ff\.vor1 . I place my j upon thegrDllnds tha it ·so ear,nestly argued,and, to fairly decide upon the w4ich; i,tvaUd, would ha,yl'l tJ,le company llI!-der tl1empst favorable ;View of the pase that could beJaken .. . motion for a new trial I
HELLIWELL
and another "D·. GRAND , C.&:!UDA.
TRUNK RAILWAY OF
(Circuit Oourt, E. D. W$8con8in. February 4, ISS!.)
1.
OoMHON CARRIER-DELAY IN TRANIlPORTATION-LIABILITY
H. & Co. sliipped flour from::Milwaukee to London, under a coli· tract which required the defendant to transport the flour by to Ludington, Michigan, thence by rail to Portland, and thence by steamship to LoMon. In an action'tb reoover damages for delay of the flour at fortland,"r; " . Held, that as the bills of lalling constituted a thr01..lgh cl)ntract, 1