#### JOHN P. LEDFORD v. LOUISVILLE AND NASHVILLE RAILROAD COMPANY.

(Filed 19 December, 1924.)

Carriers — Railroads—Ejecting Passenger — Improper Place — Damages— Proximate Cause.

A railroad company, Laving the lawful right to put a passenger off: the coach of its train for his failure to pay his fare, is nevertheless answerable in damages when it does so at a place and under circumstances that import serious menace to him, and injury is thereby proximately caused.

Civil actioN, tried before McElroy, J., and a jury, at March-April Term, 1924, of Ci-ieeoiíbe.

Plaintiff sued on two causes of action:

1. That, being a passenger, he was, in August, 1922, wrongfully expelled from defendant’s train.

2. That he was expelled from said train in a wrongful and negligent manner, thereby causing substantial physical injury.

On denial of liability, the cause was submitted and verdict rendered on issues as follows:

“1. Was the plaintiff, John P. Ledford, wrongfully ejected from defendant’s passenger train, as alleged in the first cause of action in the plaintiff’s complaint? Answer: No.’

“2. If so, what damages is plaintiff entitled to recover? Answer: None.’

*809“3. Was tbe plaintiff injured by tbe negligence and wrongful conduct of tbe defendant, as alleged in plaintiff’s second cause of action? Answer: ‘Yes.’

“4. If so, wbat damages, if any, is plaintiff entitled to recover? Answer: ‘$500.00.’”

Judgment on verdict for plaintiff, and defendant excepted and appealed.

Dillard & Hill and Moody & Moody for plaintiff.

M. W. Bell for defendant.

HoKE, C. J.

Tbe evidence of plaintiff tended to sbow that in August, 1922, at Murpby, N. O., plaintiff, having failed to get a ticket because defendant’s agent was not properly in bis place, was wrongfully put off defendant’s train because be refused to pay tbe fare due from passengers without a ticket.

On second cause of- action there was evidence on part of plaintiff tending to sbow that at tbe time stated and in or near tbe town of Murpby, N. O., be was put off defendant’s train by tbe conductor or other agents of defendant before tbe train bad come to a full stop and at a point where there was a ditch of some depth in a bad and muddy condition, and as plaintiff endeavored to get out of this ditch and to avoid the moving train which threatened, be slipped, falling against a rock sticking out of tbe bank, causing plaintiff substantial physical injuries.

There was evidence for defendant in denial of plaintiff’s testimony and tending to sbow that defendant company and its agents were free from all blame in tbe matter. On this conflict of evidence, tbe jury on tbe first cause of action have rendered their verdict for defendant, and plaintiff not appealing, no question as to tbe first cause of action is presented, nor as to tbe right "of tbe company to eject defendant from its train.

On tbe second cause of action tbe jury have accepted tbe plaintiff’s version of tbe matter and this being true, plaintiff’s claim is clearly made out. As heretofore stated, tbe verdict on tbe first cause of action has established tbe right of defendant and its agents to eject plaintiff, but even where such right exists it must be exercised in reasonable regard for tbe would be passenger’s safety, and if, in breach of this duty, defendant company, through its agents, has expelled tbe claimant at a time and place and under circumstances that import menace of substantial physical injury, and such injury results, an action properly lies. 5th R. C. L. pp. 134, 135. In this citation tbe author states tbe general principle as follows: “Even though a person has no right on *810the vehicle or premises of the carrier and the latter clearly has the right to eject him therefrom, such right must be exercised in a reasonable and prudent manner and with due care for the safety of the offender, and for a failure so to act resulting in injury to the person ejected, the carrier will be liable.”

We find no reversible error in the record and the judgment for plaintiff is affirmed.

No error.