*24 Judgment affirmed.
The first special ground of the motion for a new trial alleges error in overruling a motion for continuance on account of the absence of Jordan, defendant’s law agent, and of Hendley, a witness by whom the defendant expected to prove that the conductor did not spit in the plaintiff’s face; counsel stating that they did not know until the day of the trial and just before any testimony was offered, that Hendley was a witness or what he would testify, the matter of getting up the evidence and securing the attendance of witnesses, and the preparation of the ease so far as the evidence was concerned, being left entirely with Jordan, the law agent; that Hendley was not absent by their procurement or consent ; that they expected to have his testimony at the next term ; that the motion was not made for delay, but to procure the testimony of the witness, and the attendance of the law agent who stood in the place of the defendant; that they could not safely go to trial without him ; that the present counsel had but recently been employed, original counsei for defendant having retired; find that they had expected Jordan to be present until an hour previously, when they were notified by telegraph that he was sick in bed at Macon. It was further shown that just before the last term, Jordan had caused a subpoena'to be served on Hendley as a witness, who was supposed then to reside in the county of the suit (Pulaski), and he attended court at the last term. The plaintiff proved by four witnesses that Hendley removed from Pulaski to Wilcox county about a year before the trial; and one of plaintiff'’s counsel testified that he had Hendley subpoenaed last fall, and that while Hendley attended the last term of court, he told this counsel that he would not attend on the case because he lived out of the county and could not be compelled to attend. The plaintiff’s testimony was, in brief, as follows: Boarded the defendant’s train on or about August 8, 1889, at Cochran to go to Iiawkinsville. Rufus McGriff, L. P. Wimberly and W. L. Hendley, no others, were on the car; it was a car where ladies ride. Davis was conductor on that train; he had been conductor about five years. I paid him full fare for my passage to Iiawkinsville; was then about two or three miles beyond Cochran ; was sitting in a seat when he came in, and I gave him the fare. The first thing I knew, he called me a damn little son of a bitch, and said that he had been waiting to get me, and now he had me. He placed his hand to his hip pocket as if to draw a pistol; he spit tobacco spit in my face, and it ran down on my shirt front, and struck me in the face two or three times with his open hand, and said that he had a great mind to kill me. I said nothing to make him act so, and had not spoken to him for five or six months. I have ridden both.before and after this occurrence on the train with Davis as conductor. When he came in I was looking out of the window. Treated him that way because I did not like him. Have had no conversation with him since; do not speak to him; did not speak to him that day. I took the attack without resenting it because I thought he was fixed and I was not. Have known him six or eight years; about four or five years of that time I was friendly with him. Did not feel very good towards him on that day; had not seen him for three or four weeks. Was sitting near the rear of the car. Wimberly was about three or four seats in front of me. When Davis came in I was looking out of the window I did that because I did not like him. - He said fare, and I without looking at him, extended my hand towards him with the fare in it, and dropped it in his hand. After I did so he said, “You dirty little son of a bitch; I have been after you for some time ; I have a good mind to put you off.” He caught me by the arm and led me to the rear of the car, and Wimberly got between us. He spit in my face, on the side, and it ran down on my shirt and collar. I didn’t do anything. I never said a word because I had nothing. I did nothing by word or act to make him treat me as he did. I was not doing much of anything in the way of business; was just shifting about; sometimes helping my father about his warehouse, checking for him. I was then about 21 or 22 years old, and was a single man. Upon this testimony the defendant moved for a non-suit, on the grounds that the evidence did not show that the plaintiff had sustained any damage, and failed to sustain the allegations in his declaration. The overruling of this motion is another of the grounds for a new trial. Upon the refusal to grant a nonsuit, the defendant’s counsel stated that they proposed to show by Davis, in order' to palliate and mitigate the damages, simply that his reason and motive for making the alleged assault was because the plaintiff had been using slanderous, indecent and scandalous language about Davis?s wife’s sister, and that Davis had not seen the plaintiff since the matter was communicated to him, until he met him on the train ; but that, the court having refused to allow the plaintiff to answer any questions tending to establish the same facts, counsel did not wish to lose the conclusion in the argument by offering Davis as a witness; and so requested the court to rule whether Davis would be permitted to testify to the facts indicated. The court refused to rule on the question till Davis was introduced and sworn as a witness,' stating that if the questions were not allowed, the defendant’s counsel would be entitled to the conclusion. The questions were propounded to him, when the court repelled the testimony sought to be elicited, as stated. The defendant then proposed to withdraw the witness and his testimony, and claimed the conclusion ; but upon motion of plaintiff the court refused to allow this, for the reason that the witness had testified, in answer to the question of defendant’s counsel, “ If plaintiff did not hand him his fare in a contemptuous manner ?” that “He did, and he caught his eyes, and that he saw a sneer on his face.” Thus defendant’s counsel were denied the conclusion of the argument; and it assigns the rulings of the court as error. Other grounds allege that the court erred in refusing to allow the plaintiff, on cross-examination, to answer the questions, whether he spoke slanderous and indecent language about Davis’s sister, and whether it was because he so spoke that the conductor acted towards him as he did; and in refusing to allow the conductor to answer questions to the same purport. It was assigned as error that the court charged that “sneers, looks or contemptuous gestures will not justify an assault by the conductor upon a passenger,” and failed to charge, without request, by way of illustration, that the jury might consider contemptuous looks, gestures and sneers on the part of the plaintiff', in mitigation of damages; the argument and theory of defendant’s counsel being that such looks, gestures and sneers were attendant facts and ought to be considered in mitigation of damages. The court charged: “The question is, was there a contract guaranteeing polite and courteous treatment, and then was that contract carried out ? Sneers, looks or contemptuous gestures will not justify an assault by the conductor upon a passenger. A conductor is not released from that contract because a passenger does not smile upon him, or because he wears a frown.” This is alleged to be error because not justified by the evidence, or by the- issues involved, or by the theory of the defence, and because it was 'calculated- to mislead the jury. The refusal to charge as follows is assigned as error: “If the jury should find that the plaintiff' is entitled to recover any damages, in estimating the amount of damages, the railroad company would be liable for such damages as would be given against the agent or conductor if he were personally sued as principal.” It is further complained that the charge of the court in its entirety is erroneous in that it does not cover the issues involved, and absolutely • excludes from the jury the consideration of any facts or circumstances tending to palliate the alleged assault, or in mitigation of damages. And it is alleged that the verdict is contrary to law and evidence, and is excessive.- There was testimony by the conductor, denying that he did the things alleged by the plaintiff, save the act of spitting in his face, which was admitted. He further testified that he called for the fare two or three times before plaintiff paid it, which he finally did contemptuously and with a sneer on his face, throwing the money into the conductor's hand. DeLacy & Bishop, for plaintiff in error. Martin & Smith, contra.