by John Marshall Harlan

“ In the enforcement of reasonable regulations established by the carrier for the conduct of its business, the servant may be obliged to use force; but the law will not protect the carrier if the servant uses excessive or unnecessary force. This doctrine is well illustrated in Sanford v. Eighth Ave. R. Co., 23 N. Y. 345. In that case it appeared that the plaintiff's intestate got upon a streetrailroad car in the night-time, and, after being shown to a seat, refused, without sufficient casuse, to pay his fare. ”

“ But we perceive no ground upon which the exception can properly rest. If the statements of the plaintiff were true, then neither argument nor citation of authorities is necessary to show that undue force was used by the company's servants; and it was the right of the court to so instruct the jury. But that the jury might also have in mind the case as made by the defendant, the court said: 'On the other hand, you have the testimony of the witness Thiel, who says he came to the freight two or three times before the transaction, and told plaintiff to get down ”

“ What will be misconduct on the part of its servants toward a passenger cannot be defined by a general rule applicable to every case, but must depend upon the particular circumstances in which they are required to act. ”

“ In the present case the jury were instructed, in substance, that the plaintiff had no right to be in any part of the boat except that assigned to deck passengers, and that the carrier's servants had the right-using no more force than was necessary-to remove him from the place where he was found by the watchman. ”

“ They were made by one servant of the defendant while assisting another servant in enforcing its regulation as to deck passengers. They were made when the watchman and the mate, according to the evidence of the plaintiff, were both in the very act of violently 'pushing' him, while in a helpless condition, to that part of the boat assigned to deck passengers. ”