(dissenting):
One purpose of the rule is to protect the passenger, but the paramount purpose is to protect the company from liability for injury to the passenger received while on the platform. Another reason for the rule is the convenience of passenger's in entering and leaving the car. It does not appear in this case that there were any *460other persons on the platform, that the passage was obstructed, or that passengers were in any way impeded.
It is stated in the prevailing opinion that there was nothing in the plaintiff’s appearance to indicate that he was ill. .Now, if the plaintiff had a sick headache and was taken suddenly ill and became sick at the stomach while upon the car, how would he prove it to the conductor ? The company certainly would not insist upon his putting in evidence an exhibit. The company had a right to protect itself; but, if a passenger says to a conductor that he is ill and liable to vomit, and for that reason insists upon riding upon the platform, and it is not crowded to the inconvenience of others, what difference does it make to the company ? The company would not, it seems, be responsible for an injury to the passenger received while riding in a dangerous position against the protest of the conductor under such circumstances. There was, therefore, no real necessity for removing the plaintiff from the car, and his removal under such circumstances would seem to have been unreasonable. The passenger deemed it unreasonable to require him to go into the car and vomit, in the presence of the other passengers, but this he was required to do or leave the car.
An unexpected and extraordinary circumstance arose, occasioning the necessity for fresh air; and, in order to obtain this, it was necessary for the passenger to go into the vestibule of the car. If he had remained within the car, the result of the illness would probably have seriously interfered with the comfort of the other passengers. It was the duty of the carrier, who had received this passenger, to protect the other passengers from annoyance, so far as was reasonable and proper. It was also its duty to extend to the plaintiff, who was its passenger, such aid and protection as his then condition required. It was not unreasonable for him, under the conditions and circumstances then existing, to seek temporary relief from his illness by withdrawing from the presence of the other passengers and going into the vestibule. The company was there upon the platform, through its representative, the conductor, and, upon the facts disclosed in the case, the conductor had knowledge of the plaintiff’s physical condition. In the exercise of ordinary judgment, the conductor must have known that the result of the plaintiff’s illness, if he had remained within the car, would have seriously interfered *461with the comfort of the other passengers in charge of the company, through its conductor. Common civility and the dictates of decency would, or ought to have, instigated the company, as they did the plaintiff, to relieve the other passengers from the annoyance that might have resulted had he remained within the car. The place selected by the passenger neither annoyed nor inconvenienced any one, and he should have been allowed his temporary purpose of gaining relief from his illness and avoiding the discomfort which might have resulted to the other passengers had he remained in his seat. The right of expulsion, under a reasonable rule, should not be allowed to be exercised arbitrarily or inhumanely, and without due care and regard for the comfort and well-being of the passengers.
Even though the rule be reasonable, a humane and proper course should be adopted and followed in its enforcement; in other words, it should be reasonably enforced.
The cases cited by appellant are not analogous to the question at bar. It was not unreasonable in the Hibbard case to require the passenger to show his ticket a second time. In the Townsend case it was held that the conductor was not bound to accept the mere “ word ” of the passenger that he had a right to travel on the car; there was no evidence to the conductor that he had a right to travel without a ticket or payment of fare.
In those cases the conductor demanded an exhibition of the evidence of the passenger’s right to travel; here the conductor demands that the passenger produce some other evidence of the truth of the statement, besides his own word, that he has sick headache and is subject to nausea; but this, in the nature of things, the passenger could not produce, exceqjt by giving an illustration when the attack came on.
It was held in McMillan v. Railway Co. (172 Penn. St. 526) that “ cases might arise in which it would seem that the rule should not be rigidly enforced, or an immediate compliance with it required, as where the passenger was at the point of alighting and his presence for a few moments on the platform would not endanger or inconvenience any one. * * * A passenger in any event would have no right to complain of the enforcement of a reasonable rule unless he had stated to the conductor an adequate reason for its suspension in his case.”
*462In the case at bar it is conceded that the passenger had stated to the conductor an adequate reason for the suspension of the rule in his case, and, under the circumstances disclosed, I am of the opinion that the trial court was right in the disposition made by it of this case, and that the judgment and order should be affirmed, with costs.
Ward, J., concurred.
Judgment and order reversed and a new trial ordered, with costs to the appellant to abidé the event.