(after stating the facts.) There is no doubt that the railway company had the right to prohibit soliciting for hotels upon its ears and depot platforms. (Landigran v. State, 31 Ark. 50.) But the question as to whether the plaintiff was “soliciting” at the time of his ejection was submitted to the jury, and their finding was in favor of the plaintiff. Although the finding seems to us to be against the preponderance of the evidence, still it has evidence to support it, and, being properly submitted to the jury, the decision of the jury is binding upon us. We must therefore take it as established that the plaintiff was wrongfully ejected by the employees of the company under the belief that he was violating its rules by soliciting for a hotel, when in fact he was not doing so. On this point counsel for defendant requested the circuit judge to instruct the jury as follows: “If you find from the testimony that defendant’s agents and servants had reasonable or probable grounds for believing that plaintiff was soliciting for a hotel at the time of his ejection, you will find for defendant.” We think the circuit judge properly refused this request. If reasonable or probable cause to believe that the plaintiff was violating its rules would justify the ejection, still under the evidence in this case the defendant might be liable on the ground that its employees used more force than was necessary. The instruction as requested would have excluded that question from the jury, and its refusal was therefore proper.
But we are of the opinion that the instruction as requested was subject to other objections; for when a passenger, without fault on his part, is ejected by a railway company from its premises for a supposed violation of its rules, it seems, from the decisions, that the company is liable for the injury occasioned, without regard to whether it exercised care or not. Thus, where a rule of a street car company forbade its conductors from allowing intoxicated persons to ride on its cars, the company was held liable for ejecting a person afflicted with St. Vitus’s dance, which produced involuntary motions resembling those- of an intoxicated person, and led the conductor to believe that the passenger was intoxicated. In that case the court said: “The defendant judged at its peril as to the application of such a rule in a given case, and if it erred it would be answerable for its mistakes, or that of its servants acting under its authority. .It was within the power of the. conductor to have ascertained the real cause of the plaintiff’s appearance, and thus to have avoided the mistake.” Regner v. Glens Falls, etc., R. Co., 74 Hun (N. Y.), 202; 1 Fetter, Car. Pass, page 821.
It is the duty of the railway company to protect its passengers from insult and injury by its servants, and, when the passenger is not himself at fault, it is no justification of an assault upon him to show that the employees of the company believed, or had reasonable grounds to believe, that he was violating its rules when in fact he was innocent. 4 Elliott on Railroads, § 1638.
We have carefully read the briefs of counsel and the transcript, but are unable to see that any ground for reversal is presented.
The judgment is therefore affirmed.