Railroad, Enforcement of reasonable rule as to dogs in passenger cars. Trespass, Ab initio. Assault and Battery. False Imprisonment. Dog.
While it is reasonable for a railroad company to make a rule excluding dogs from its passenger cars and to insist that a passenger, who is upon such a car with a dog, either shall comply with the rule or leave the train, a conductor who is a special police officer is not justified in placing a passenger refusing to comply with such a rule under arrest so long as the passenger is not guilty of disorderly or noisy conduct or of a refusal to pay his fare; and, if without a warrant the conductor attempts to make such an arrest and the passenger is removed from the train by him and other agents of the company without the use of excessive force and is conducted by the other agents of the company through the streets of a town and delivered to a police officer who refuses further to hold him under arrest, the company is liable to the passenger for the duress and indignity to which he was subjected, not only while he was on the train but afterward, and for all the force used upon his person in removing him from the car and until he was released from custody.
BRALEY, J.
The plaintiff, having been accepted as a passenger, was lawfully in the car, and the defendant had undertaken to provide reasonable facilities for his transportation in safety and to protect him from violence, annoyance and discomfort whether arising from disorderly conduct of fellow passengers, or the wrongful interference of its employees, or the intrusion of strangers whose presence by the exercise of due care could have been anticipated and prevented. Jackson v. Old Colony Street Railway, 206 Mass. 477, 485, 486. Exton v. Central Railroad, 33 Vroom, 7; 34 Vroom, 356. New Jersey Steamboat Co. v. Brockett, 121 U.S. 637. In the performance of this duty the railroad had the right to establish and enforce reasonable regulations for its own protection in the management of its business. St. 1906, c. 463, Part II, § 181. Commonwealth v. Power, 7 Met. 596. O'Neill v. Lynn Boston Railroad, 155 Mass. 371. Cutts v. Boston Elevated Railway, 202 Mass. 450, 455.
It is common knowledge that for various reasons, which may be either fanciful or well founded, the presence of dogs even when accompanied by their owners or custodians often causes passengers serious discomfort and annoyance, or apprehension of bodily danger; and their exclusion from its passenger coaches while permitting them to be carried for hire in the baggage cars is not an unreasonable exercise of this authority. Commonwealth v. Power, 7 Met. 596, 601. Honeyman v. Oregon California Railroad, 13 Or. 352. Gregory v. Chicago Northwestern Railway, 100 Iowa, 345. The plaintiff having been informed of the regulation was bound by it, and when requested by the conductor to remove the dog in his possession and control to the baggage car and to make the necessary payment, his refusal would have warranted his expulsion by the use of sufficient but not excessive force if, when the train stopped at the next station, he had refused to depart. Commonwealth v. Jones, 174 Mass. 401. Johnson v. Concord Railroad, 46 N.H. 213. Whitesell v. Crane, 8 W. S. 369. Trotlinger v. East Tennessee, Virginia Georgia Railroad, 79 Tenn. 533. Jackson v. Old Colony Street Railway, 206 Mass. 477.
But upon the uncontradicted evidence the conductor, who also was a railroad police officer, after a somewhat prolonged colloquy with the plaintiff, instead of taking proper measures to enforce the regulation exhibited his badge of office and informed him that he was placed under arrest "for evading fare." By the common law this restraint was illegal; and under R.L.c. 108, § 18, authority to arrest without a warrant is conferred only where the passenger refuses to pay his fare or is noisy or disorderly. The plaintiff, however, in refusing to obey the regulation was not guilty of an evasion of his fare, and throughout the controversy he was not charged with unseemly behavior. No justification having been shown for the duress and indignity to which he was subjected not only while on the train but at the station, or for the force used upon his person in removing him from the car and until he was released from custody, the defendant is responsible in damages, whether the conductor acted as its servant or as a special police officer. It also is answerable for the conduct of its brakeman and station agent who rendered assistance and participated in the assault and false imprisonment. Brock v. Stimson, 108 Mass. 520, 521. Jackson v. Old Colony Street Railway, 206 Mass. 477. Horgan v. Boston Elevated Railway, 208 Mass. 287. R.L.c. 108, § 20.
It is therefore clear that the plaintiff's second request, that the defendant had shown no justification for the assault, was in accordance with the evidence; and the instructions to which he excepted, that the defendant would be liable only for the use of excessive force in the plaintiff's ejection and for the wrongful restraint of his liberty after he reached the station platform, were insufficient.
Exceptions sustained.