ON REHEARING.
McCulloch, C. J.Learned counsel for plaintiff insist that we are wrong in condemning instruction No. 5 as reversible error, and they cite authorities holding that violation by the passenger of a carrier’s rules justifies ejection. A fair illustration of the authorities cited is the case of Gregory v. Railroad Co., 100 Ia. 345, 69 N. W. 532, where it was held that if a "passenger refuses to remove his dog from a passenger car in compliance with the regulations of-a railroad company the conductor is authorized to remove both.”
If that doctrine be applied literally to the facts of this case, then the error of the trial court will be equally apparent, for the evidence is undisputed that the plaintiff knowingly violated the rules, and if that, under the law, completely justified his ejection, the court erred in submitting any issue to the jury except the single question whether or not excessive force was used by the motorman in ejecting plaintiff. But we have, in the opinion, correctly, we think, stated the law more favorably to the passenger. We said, in substance, that since the passenger had paid his fare, he had the right to continue his journey on the car, notwithstanding the violation of. the rule and consequent removal of the dog, and that the motorman had no right to eject him unless he did something more than merely protest against the removal of the dog.
However, there is no real conflict between the doctrine of the authorities cited by counsel for plaintiff and the conclusions we stated in the opinion, as applied to the facts of this case. The plaintiff was standing inside the car near the door looking out at the dog, when the motorman removed the dog. If the motorman’s statement of the facts is true, he did no wrong in removing the dog in the manner stated, but he was not bound to eject plaintiff and had no right to do so unless the latter interfered and contumaciously refused to permit the removal of the dog, or was guilty of some other misconduct sufficient to justify his ejection. If, however, the motorman had removed the dog in the absence of plaintiff and without notice to him, so as to cause the loss of the dog to plaintiff, then there would have arisen the question whether or not plaintiff had a right of action against the company for the loss of his dog, but no such question is presented under the facts of this case.
We are still of the opinion that instruction No. 5 was erroneous and prejudicial and calls for reversal of the judgment.