and Erie R. R. Co., 15 N. Y. 415; Sedgw. on Damages, 699, note (2).

The court having already instructed the jury to the same effect as asked by the defendant in his second instruction, it was, for that reason, very properly refused.

As the damages are not complained of as excessive, we have no occasion to consider the defendant's objection to the remark of the court to the jury that it was important to the parties that they should return a verdict, and they should not let one or two hundred dollars prevent them; and we will merely say, we think it was not calculated to influence the jury to the defendant's prejudice.

The affidavit of the juror should not, however, have been allowed to be filed, as the Statute expressly declares that :-"A juror cannot be examined to establish a ground for a new trial, except it be to establish, as a ground for a new trial, that the verdict was made by lot." Sec. 1971 Gantt's Digest.

The judgment is affirmed.

See Brassell v. N. Y., etc., R. R. Co., 3 Am. & Eng. R. R. Cas. 384.

ROBERT B. DICKIE V. BOSTON AND ALBANY R. R. Co.
HELEN E. DICKIE V. SAME.

(131 Massachusetts Reports, 516.)

A person injured by a defect in a bridge, forming part of a highway, which a railroad corporation is bound to keep in repair, cannot maintain an action against the corporation without giving the notice required by the St. of 1877, c. 234, § 3, to be given to the "persons" obliged to keep the same in repair; and an omission in the declaration to allege the giving of such notice may be availed of by demurrer.

A notice to a railroad corporation, bound by law to keep in repair a bridge forming part of a highway in a town, that a person has been injured by "a defect in the bridge," does not sufficiently designate the cause of the injury, within the St. of 1877, c. 234, § 3; and, in an action by the injured person against the corporation, a declaration alleging such statement of the cause of the injury in the notice is bad on demurrer.

F. W. ROCKWELL (A. J. Waterman with him), for the plaintiffs. T. P. Pingree and J. M. Barker, for the defendant.

ENDICOTT, J.-These are actions of tort for injuries, occasioned to the respective plaintiffs by reason of an alleged defect in a bridge, which formed part of a highway in Pittsfield, upon which the plaintiffs were travelling. The railway of the defendant passed under the highway at this point, and no question is made that the defendant was authorized to construct and maintain this bridge.

By the provisions of the defendant's charter, and by the general laws of the Commonwealth, it is required to keep this bridge in repair. St. 1833, c. 116, § 13; St. 1867, c. 270, § 4; Rev. Sts. c. 39, § 72; Gen. Sts. c. 63, § 61; St. 1874, c. 372, § 95. The town of Pittsfield, therefore, was under no liability to keep that portion of this highway in repair which was occupied by the bridge, because other sufficient provision is made by law for its maintenance and repair. Gen. Sts. c. 44, §§ 1, 22, amended by the St. of 1877, c. 234, §§ 1-3; White v. Quincy, 97 Mass. 430, and cases cited; Wilson v. Boston, 117 Mass. 509; Rouse v. Somerville, 130 Mass. 361.

The defendant comes within the provisions of 88 1-3, above recited, which enable any person who has received an injury through any defect or want of repair in or upon any highway, townway, causeway or bridge, and who has complied with the other requirements of the statute to recover damages therefor from the county, town, place, or "persons by law obliged to keep" the same in repair. The word "persons" includes corporations, and applies to the defendant. Gen. Sts. c. 3, § 7, cl. 13; Otis Co. v. Ware, 8 Gray, 509; Greene Foundation v. Boston, 12 Cush. 54, 59; United States v. Amedy, 11 Wheat. 392.

The defendant in the first action was, therefore, entitled to the notice provided in these sections. This has been held to be a condition precedent to the plaintiff's right to maintain any action for injuries received by reason of such defect. Gay v. Cambridge, 128 Mass. 387; Mitchell v. Worcester, 129 Mass. 525. The declaration fails to allege such notice, and as the fact of such notice is necessary to constitute a cause of action, the omission may be availed of by demurrer. Commonwealth v. Dracut, 8 Gray, 455.

In the second action, the plaintiff amended her declaration, and alleged that she gave the required notice to the defendant in writing, and the notice given is attached to, and made part of, the amendment. But this notice does not state the cause of the injury; it is not enough to say that the injury was caused by "a defect in the bridge," but the defect should be so described that the defendant may be informed of its character. Noonan v. Lawrence, 130 Mass. 161; Miles v. Lynn, 130 Mass. 398. It appearing in the declaration that the notice given was not as required by the statute, the defendant could properly demur to the declaration.

The demurrers were, therefore, properly sustained in the Superior Court. And in both cases there must be judgment for the defendant.

See note to Louisville, etc., R. R. Co. v. Weams, post,

THE PEOPLE

v.

SAMUEL MCKAY.

(46 Michigan Reports, 439.)

Railway passengers are entitled to remain in the waiting-room at a station as long as they have occasion to do so, and commit no offence against the good order of the place and reasonable regulations made to govern it; they are not bound to leave on being ordered out by the keeper for any such indecorum as spitting on the floor, and the refusal to go on being ordered will not excuse the commission of an assault and battery upon them to compel

them to.

A railway station keeper assaulted a passenger for not leaving the waitingroom when ordered, the passenger having enraged him by spitting on the floor. Held, that in defending an action for the assault and battery a question as to the plaintiff's smoking was irrelevant, where his smoking had not been objected to.

EXCEPTIONS before judgment from Cass. Submitted June 23. Decided June 29.

Information for assault and battery. Respondent was convicted below. Affirmed.

Attorney General Jacob J. Van Riper for the People. Words cannot justify an assault: Tiff. Crim. Law, 574.

Howell & Carr for respondent. The keeper of a railway station house is not guilty of assault in ejecting a person if he has no notice or knowledge of his right to remain there: Com. v. Power, 7 Met. 596.

CAMPBELL, J.-McKay was convicted of assault and battery on Thomas Cooley, at the Grand Trunk station at Edwardsburg, in Cass county. McKay was station keeper, and the assault originated in an altercation between them, caused by Cooley's spitting on the floor. He was smoking at the time, but no objection was made to this, and a question about it was properly held irrelevant. The defendant made a somewhat violent assault, and subsequently called in another servant of the company who compelled Cooley to leave the room, which he had refused to do at the demand of McKay. Cooley was a passenger on a train stopping temporarily at the station,

The court charged the jury very distinctly that if Cooley violated any rule made either by the company or the agent which had been brought home to his knowledge, the respondent had a right to require him to leave the waiting-room, and to remove him by such force as was necessary.

We think this charge was quite strong enough in favor of re

spondent. It is absurd to claim that the travelling community are bound to govern their behavior by the whims of an obstinate station-house keeper, or to leave the room whenever he thinks proper to drive them out. They are invited by the railroad company, and are entitled to remain there so long as they have occasion to do so, and commit no offence against the good order of the place and the reasonable regulations made to govern it.

The conviction was regular, and it must be certified to the court below that the people are entitled to judgment on it. The other Justices concurred.

JOHNSON

V.

CHICAGO, ROCK ISLAND AND PACIFIC R. Co.

(Advance Case, Iowa. April 24, 1882.)

Courts ought to grant new trials whenever their superior and more comprehensive judgment teaches them that the verdict of the jury fails to administer substantial justice to the parties in the case.

In an action of damages for ejection from a railroad station-house, an instruction to the jury "that to find for the plaintiff it must appear from the evidence that the agent used more force that was reasonably necessary, and that by reason of the excessive force the plaintiff was injured, and they were advised that it was their duty to consider the resistance made by plaintiff, and the force used, and all the circumstances, and the conduct of the parties," held, unobjectionable.

The rule that carriers of passengers are liable for the negligent or wrongful acts of their servants and employees does not always depend upon the fact that the carrier owes a duty or is under some obligation to the party injured.

The true test by which to determine the liability of the master for the acts of his servant in all this class of cases is, was the wrongful or negligent act done in the course and within the scope of the employment of the servant or agent?

Where the deposition of a witness was read to the jury for the purpose of impeaching his testimony, which deposition was shown to the witness, held, that no advantage was take nthat could prejudice the defendant.

APPEAL from Wapello circuit court.

Action for a personal injury which, it is alleged, the plaintiff received by being forcibly ejected from the station-house of the defendant at Eldon, by the agent in charge of the station. There was a trial by jury, which resulted in a verdict for plaintiff for $4000. Upon a motion for a new trial, based upon several grounds, the court required the plaintiff to remit $1500 of the verdict, and thereupon overruled the motion. Defendant appeals.

Stiles & Lathrop, for appellant. W. H. C. Jaques and Wm. McNett, for appellee.

ROTHROCK, J.-1. This is the second appeal in this case. There was a verdict for $2000 at the first trial, which was reversed for errors in the rulings of the court pertaining to the evidence, and for an erroneous instruction as to exemplary damages. See 51Iowa, 25. The plaintiff was removed from the waiting-room of the station by the agent of the defendant. That his shoulder was dislocated, either from a fall from the door out of which the agent pushed him, or by a fall after he landed on the platform, is not disputed. It also appears, without any conflict or question, that the plaintiff was not in the waiting-room awaiting an outgoing train upon which to take passage, nor for any other purpose for which a waiting-room at a station is kept open to the public. He was there for the purpose of waiting to take passage on a train on another railroad. The facts as to his right to remain in the waiting-room are more fully set out in the opinion on the former appeal, which are in substance the same as are shown by this record. Without repeating the facts in detail, it is sufficient to say that there was no warrant from the evidence, conceding anything it tended to prove, which would justify any jury in finding that the plaintiff had any right to remain in the waiting-room after being requested by the agent to leave it. That he was so requested and refused, before any violence was used towards him, is not disputed.

The only question, then, for the jury to determine was, did the agent use more force than was reasonably necessary in removing the plaintiff from the room, and was he injured by reason of the excessive force? Upon this question we are asked to reverse the judgment, because the verdict finds no support in the evidence. In removing the plaintiff from the room no blows were struck by any one. The plaintiff resisted the force employed by the agent, and another employee of the defendant who assisted him in ejecting plaintiff, by holding to a seat and by holding to the door-case as he was pushed out. There is a very decided preponderance of the evidence to the effect that the plaintiff and one Shinblom, who was his comrade on the occasion, were drunk and disorderly, and that they both deserved to be removed from the room for their conduct, and we also think that the great weight of the evidence is that there was no excessive force used to effect the removal. But the plaintiff and Shinblom both testified that they were sober and well-behaved, and that the agent used such force as to throw plaintiff ont of the door; as Shinblom expressed it, "One of the men shoved Johnson to the door, and took hold of him and threw him square out." Now we do not believe this testimony, simply because several witnesses testify in direct contradiction to it. But we cannot usurp the functions of the jury and the court below. Here are two concurring verdicts, upon substantially the same facts, and two nisi prius judges have given their approval and indorsement of them by overruling motions for new trials grounded