Whatever may be our opinion, from the evidence, as to the guilt or innocence of the defendant, we are bound to award him a new trial, if improper evidence was admitted against him, or competent evidence offered by him was rejected, or the court incorrectly ruled any question of law against him, at any rate in a matter material to his defence.
The defendant based his defence for forcibly ejecting the witness Elliott from the car upon two allegations: First. That he had conducted himself during the passage, and up to the time of his removal, in a violent and disorderly manner, so as to seriously disquiet the other passengers; and, Secondly. That he improperly refused to surrender his ticket when reasonably requested to do so.
As to the first ground of defence, the defendant’s counsel offered to show that Elliott’s conduct, throughout the whole trip, was noisy, disgracefql and disorderly, and such as to annoy the passengers in the cars and to interfere with their repose and comfort. The court refused to receive evidence *329of such misconduct antecedently to the arrival at Williams’ Bridge, distant about three miles from Hunt’s Station, where Elliott was ejected. Why this, place was assumed as the limit does not appear. At any rate, it was improperly adopted. It was competent for the defendant to give evidence of misconduct during the entire passage, as it was a short one, if it was apparent that the disposition and feeling which prompted it continued and influenced Eliott’s conduct up to the time of his removal. A slight ebullition of passion, or a trivial irregularity at the moment, might not have justified the expulsion. But if it was indicative of a continuance of previously outrageous conduct, justice to the other passengers, as well as to the railroad company, might have called for such a remedial measure.
The charge of the court, upon this point, was also too strong. It was that the conductor has no authority to eject a passenger from the car for misconduct, except when it is such as to disturb the peace and safety of the other passengers. According to this, -a passenger cannot be removed for profane or indecent language, however gross it may be, or however it may offend the delicacy or sense of propriety of the other, and especially female, passengers. That is not reasonable, nor can it be law.
The court improperly rejected evidence to prove that the regulation and custom of the company had always been for the conductor to collect tickets, for all stations up to Tuckahoe (which was to be the terminus of Elliott’s passage), immediately after leaving Williams’ Bridge. That would have shown that the defendant was not influenced by any hostile motives when the ticket was demanded, and would, unless undue violence has been used, have justified his conduct, if the regulation had been a reasonable one; and whether it was or not would have been á proper question for the consideration of the jury.
If the regulation for the collection of the tickets is a reasonable one, and essential for the interests of the company, *330and a passenger refuses to comply with it, he may, I think, be required to leave the car, and, if he refuses to go, be ejected without unnecessary violence. He has no right to a seat in the cars, while refusing a compliance with a reasonable regulation of the proprietors. The charge of the court to the contrary was, I think, erroneous.
It was wrong, too, for the court to receive evidence of the general temperance and sobriety of the witness. His conduct on the passage in question was alone in issue.
The conviction should be set aside and a new trial granted.