(concurring) — I concur in the conclusion reached by Judge Gose, but not with that assurance I would wish to feel in passing upon a matter so important. I am moved to this determination solely upon the ground that the judgment of the trial court results from a proper application of the rules of law twice determined by this court to be the law of the case. Were it an original question, I would not be willing to apply the broad doctrine that, when a carrier receives a drunken passenger, it owes to him a duty commensurate with the degree of his intoxication, without some material qualifications. Sullivan entered appellant’s car in a crowded city street where, as is well known, a company cannot select its passengers with any great degree of care. Although a carrier may surrender or waive its own rights, that rule affords no warrant for saying that it should or could waive the rights of other passengers who cannot stop their ears to the profane babble of a drunken man. Applied without qualification, the law of this case would impose a duty of carrying a drunken, profane passenger along with sensitive, refined people to a place of absolute safety, without regard to his usual stopping place, for although that be opposite his own home, it may be in a degree dangerous.
*414There were a large number of passengers on the car at the time Sullivan got aboard. So far as the record shows, they were ladies and gentlemen returning home from the peaceful engagements of the day. When Sullivan entered the car, he provoked an altercation with the conductor, and from that time until he got off indulged in loud, boisterous, profane, and obscene language. If the company was at fault, its greater offense was against the decent, law-abiding passengers under its care (to whom it owed at least an equal duty) in that it did not immediately put the offending passenger off the car, instead of endeavoring to pacify him while carrying him to an established station, where of his own choice and unassisted he left the car. The company performed its full duty to Sullivan, and should not be held liable if he wandered back on the track and was drowned. Hutchinson, Carriers, 994, and cases cited. It is no answer to this argument to say that the platform was open at both ends. It was necessary that it should be so for the cars to pass. Car tracks cannot be laid either upon land or over water without some attending dangers to the public.
Having said what in my judgment the law of the case should be, I now abide by, and subscribe to, the law of this case as previously declared by the court, for the interests of society demand that there be an end to this litigation.
Morris, J., concurs with Chadwick, J.