Opinion of the Court.

road with respect to stop-over checks were not unbending and inviolable.

Another circumstance, in this connection, is worth noting: The conductor of the train on which the plaintiff rode from Olean to Salamanca was not called as a witness, nor was his absence accounted for. It was not shown that he was not still in the employ of the defendant. If accessible, his testimony would have gone far towards showing the practice of the defendant with respect to stop-over checks; and his not being called by the defendant makes against its theory that the plaintiff had no right to be carried on the train from which he was ejected without having a stop-over check.

Furthermore, if the evidence of the plaintiff was to be believed, (and in this respect the charge of the court below was sufficiently guarded,) he did all that he was required to do before reaching Olean, to entitle him to the privilege of stopping over at that place and resuming his journey the next day. In fact, his course in this respect was in literal conformity with the regulation of the company, which reads thus: "Timely notice of desire to stop over must be given by the passenger to the company." The plaintiff testifies that he told the conductor that he desired to stop off at Olean and take a train south to Portville, and then, upon returning to Olean, resume his journey to the west on another train; and that the conductor told him he would fix him all right. Even under the regulations of the road with reference to stop-over checks, (although not brought to his knowledge,) he had the right to rely upon the statement of the conductor that he would "fix him all right," and had a right to suppose that nothing further was required to be done by him than was done to entitle him to a stop-over privilege. The conductor, after receiving "timely notice from the passenger of his desire to stop over" at Olean and afterwards take another train for the remainder of his journey, (as he had the right to do on an unlimited ticket,) was thereupon bound to furnish the passenger with a stop-over check without the passenger asking him, in so many words, for one. Under the circumstances of the case, as testified to by the plaintiff, the conductor of the first train was derelict in his duty in not

Opinion of the Court.

providing the passenger with a stop-over check when the latter stated to him that he desired to stop off at Olean, (as he had the right to do,) if such check was necessary to enable the passenger to complete his journey to Salamanca. If the jury believed the evidence of the plaintiff in this matter, they were justified in finding negligence on the part of the first conductor. And, upon the case as made by the defendant itself, with reference to what took place between the plaintiff and the conductor who ejected him from the train, leaving out of sight the disputed facts in that matter, it is very clear to our minds that the action of that conductor was unwarranted under the law; and that the charge of the court, thereon was as favorable to the defendant as it had the right to demand. The authorities above cited abundantly sustain this view. The reason of such rule is to be found in the principle that where a party does all that he is required to do, under the terms of a contract into which he has entered, and is only prevented from reaping the benefit of such contract by the fault or wrongful act of the other party to it, the law gives him a remedy against the other party for such breach of contract.

These observations dispose of the questions raised touching the conversation between the plaintiff and the ticket agent, the rules and regulations of the company in the matter of stop-over checks, the acts of the several conductors in charge of the trains upon which the plaintiff travelled between Binghamton and Salamanca, and the conduct of the plaintiff himself in those transactions. If he was rightfully on the train as a passenger, he had the right to refuse to be ejected from it, and to make a sufficient resistance to being put off to denote that he was being removed by compulsion and against his will; and the fact that, under such circumstances, he was put off the train, was of itself a good cause of action against the company, irrespective of any physical injury he may have received at that time, or which was caused thereby. English v. Delaware & Hudson Canal Co., 66 N. Y., 454; Brown v. Memphis & Charleston R. R. Co., 7 Fed. Rep. 51; Philadelphia, Wilmington & Balt. Railroad v. Rice, 64 Maryland, 63.

Opinion of the Court.

It follows from what we have said that there was no error in the action of the court in refusing to direct the jury, in effect, to return a verdict in favor of the defendant. Neither was there any error prejudicial to the defendant in any part of the charge, above quoted, which the court gave to the jury upon the questions we have been considering.

With respect to the instructions requested by the defendant upon these points, which the court declined to give, except as embodied in the general charge, very little need be said. They are as follows:

(1) "The regulation of the defendant corporation, that the several conductors of its trains shall require of each passenger a valid ticket or pay the established fare, is a necessary and proper regulation, and if the plaintiff in this case having, as he says, taken defendant's train at Olean for Salamanca, did not, when thereto requested, present to the conductor a valid ticket but only a ticket that had been cancelled, and refused to pay his fare, then the conductor had the lawful right to stop the train at an intermediate station or near to a dwelling house, and put the plaintiff off the train, using only such force as was necessary for that purpose.

(2) "The regulation of the defendant that a passenger who desires to stop over at an intermediate station, and resume his passage by a later train, must, before leaving the first train, require of the conductor a stop-over check, is a reasonable regulation; and since in this case it appears by the plaintiff's own testimony that his ticket from Binghamton to Salamanca was cancelled before he left the train, and he did stop over at Olean, an intermediate place, and resumed his passage the next day and presented no stop-over check, but only the cancelled ticket, and refused to pay his fare when requested, and persisted in that refusal, the conductor had the lawful right to stop the train at the intermediate station, as he did, and put the plaintiff off the train."

What we have said above virtually disposes of these requests. In so far as they are correct, the substance of them had been given by the court in its general charge, and there was no error, therefore, in refusing to give them in the language

Opinion of the Court.

requested. Washington & Georgetown Railroad v. McDade, 135 U. S. 554; Etna Life Ins. Co. v. Ward, 140 U. S. 76. In fact, it is much the better practice to refuse to give instructions to the jury, the substance of which has already been stated in the general charge, than to repeat the same charge in different language, although the charge requested may be technically correct as an abstract proposition of law; for a multitude of instructions, all stated in different language and meaning the same thing, tends rather to confuse than to enlighten the minds of the jury.

Whether the verdict was excessive, is not our province to determine on this writ of error. The correction of that error, if there were any, lay with the court below upon a motion for a new trial, the granting or refusal of which is not assignable for error here. As stated by us in Etna Life Ins. Co. v. Ward: "It may be that if we were to usurp the functions of the jury and determine the weight to be given to the evidence, we might arrive at a different conclusion. But that is not our province on a writ of error. In such a case we are confined to the consideration of exceptions, taken at the trial, to the admission or rejection of evidence and to the charge of the court and its refusals to charge. We have no concern with questions of fact, or the weight to be given to the evidence which was properly admitted." 140 U. S. 91, citing numerous

cases.

more into detail What we have We think the

It would subserve no useful purpose to go as to the assignments of error presented. already said virtually disposes of all of them. evidence objected to was properly admitted; that the charge of the court as given was correct, and embodied the entire law of the case; that its refusal to give the instructions requested, under the circumstances, was not error; and that in no other respect, so far as this record discloses, was any error committed to the injury of the railroad company. Judgment affirmed.

Opinion of the Court.

UNITED STATES v. WITTEN.

ERROR TO THE CIRCUIT COURT OF THE UNITED STATES FOR THE WESTERN DISTRICT OF VIRGINIA.

No. 151. Argued January 8, 1892. — Decided February 1, 1892.

The stealing of distilled spirits from a distillery warehouse by reason of the omission of the internal revenue officers to provide sufficient locks on the doors affords no defence to an action on the distiller's bond to pay the tax due on the spirits before their removal and within three years from the date of entry.

THE case is stated in the opinion.

Mr. Solicitor General for plaintiff in error.

No

appearance for defendants in error.

MR. JUSTICE GRAY delivered the opinion of the court.

This was an action brought in May, 1887, on a bond dated January 31, 1884, given to the United States by the defendant Witten as principal, and the other defendants as sureties, in the sum of $261.90, with condition that the principal should pay, or cause to be paid, to the collector of internal revenue for the fourth collection district of Virginia the amount of taxes due and owing on certain distilled spirits (described) "which were deposited during the month ended January 31st, 1884, and entered for deposit in the distillery warehouse No. 3, of A. S. Witten, at Plumb Creek, in the fourth collection district of Virginia, on the 31st of January, 1884, before such spirits shall be removed from such warehouse, and within three years from the date of such entry."

One breach alleged in the declaration, and denied in the plea, was that at the date of the bond Witten had on deposit. in his distillery warehouse ninety-three gallons of distilled spirits in two barrels, deposited January 30, 1884, and had failed to pay within three years from the date of entry the taxes due thereon.