(dissenting). The ease is reversed because of an error in the instructions in failing to define the terms “ circumstances claimed ” and “ such circumstances,” used in the sixth instruction. I think they are defined in the instructions given, when applied to the pleadings and concessions of counsel made during the trial, and that when all of the instructions are taken together, as they should be, no such error as the majority have found really exists. To show that I am not mistaken in this, I here quote in full the fourth, fifth, and sixth instructions given by the court, which relate to the matter covered by the fourth division of the opinion. They read as follows, to wit:
(4) It is claimed by plaintiff that he was ejected by one Fiehart, and it is admitted in evidence and argument that said- Fiehart was a brakeman upon said defendant’s train. Under such showing, it may be considered established that said Fiehart- was an agent and employe of defendant. It is claimed by the plaintiff that while the said train was in passage between the stations of Seymour and Harvard, in Wayne county, Iowa, that said Fiehart forcibly ejected said plaintiff .from said train, in the nighttime, and while said train was running at a high rate of speed. Upon this contention the defendant takes direct issue. It denies that said Fiehart forcibly ejected plaintiff from said train. Unless the plaintiff sustains his contention regarding this material and vital essential, he cannot recover. If you find from the evidence that the plaintiff got off said train voluntarily or under compulsion of others, or ran from said train through fear of the assaults of others, or if you find that plaintiff got off or was put off said train for any other reason or in any other way than that asserted by said plaintiff, as stated above, the plaintiff cannot recover.
(5) If you find tha-t the plaintiff while upon said train got into an altercation with others, which culminated in an affray, in which the plaintiff was assaulted and injured, *636the defendant cannot be held liable therefor in the case at bar. If such affray and the assaults of others directly or indirectly caused the plaintiff to get off said train, the plaintiff cannot recover. If in such affray the plaintiff, in an endeavor to escape from said assaults, ran out of the car, upon the platform, and from such platform got off or fell from said train, the plaintiff cannot recover. If, under the circumstances shown in evidence, you find that, with the consent or even with the aid of the said brakeman, the plaintiff went out of said car, and thence upon said platform, and that, without the wrongful and forcible act of said brakeman, the plaintiff got off or fell from said platform, the plaintiff cannot recover. If you should find that said brakeman, in an endeavor to protect the plaintiff from the assaults of others, allowed, advised, or even assisted the plaintiff out of the door of the ear, and upon its platform, the plaintiff cannot recover. If you find that said brakeman helped, pushed, or even forced the plaintiff through the door of the car, and upon the platform, and did so for-the purpose of protecting the plaintiff from the violence inside of the car, and with no purpose to. eject or force him from the train, then the plaintiff cannot recover. Before the plaintiff can recover, it must appear that the wrongful act of said brakeman was the cause of the injury complained of.
(6) But the plaintiff is not required to show that the' said brakeman actually threw the plaintiff from said train. .If the evidence shows that the said brakeman wrongfully and forcibly put said plaintiff out of said car, and upon, the platform thereof, and that for that reason, and without the affirmative act or the negligence of the plaintiff, he fell from said platform, that would be an ejectment from the train. In order to show that the act complained of was wrongful,'it,is not necessary that it be shown that it was done with malice or ill will against the plaintiff. It would be sufficient to show that the act was wrongful, if it appear that the said brakeman was endeavoring to remove said plaintiff from said train under the circumstances claimed. To put any person off a train under such circumstances is a wrongful act; and if the evidence justify a finding by you that the said brakeman put, or assisted in putting, plaintiff off said train, and that he did so forcibly and willfully, and with malice, such act would also be ivrongful. The defendant denies the allegation that *637the said brakeman put plaintiff off said train, or that lie in any way contributed to such result, and does not seek to excuse or justify said act. If you find said brakeman did put said plaintiff off as claimed, it may therefore be concluded it was without reason or justification.
Here we have the exact claims made by the plaintiff regarding his forcible ejection from the train stated in plain and concise language. The jury is specially instructed that unless it he shown that Eiehart forcibly ejected plaintiff from the train in the nighttime, and while it was running at a high rate of speed, plaintiff could not recover. .It is also stated in express terms that, if plaintiff got off or was put off the train in any other way than as above stated, he could not recover. This thought is amplified in every conceivable way in the fifth instruction. In the sixth the court refers to the “ circumstances claimed ” and “ such circumstances,” and in-the fourth the jury is told just what plaintiff’s claim was, and as to what he must show in order to recover. This is the only statement anywhere in the instructions as to what these claims were. Manifestly the jury could not have found for the plaintiff, under these instructions, without finding that defendant’s brakeman forcibly ejected plaintiff from the train in the nighttime, and while the train was running at a high rate of speed. These instructions were really more favorable to the defendant than it was entitled to. Every conceivable feature of the case was covered by the instructions which we have quoted. The sixth has reference to what would amount to a forcible ejection, and is clearly correct. The instructions, as a whole, show that the only issue in the case was whether or not the brakeman forcibly ejected plaintiff from the train. Defendant did not plead any excuse or justification for the act. Its answer was a general denial of the allegations of the petition, and, as stated in the instructions, the only question was whether plaintiff was forcibly ejected in the nighttime, and while the train was running at a high rate of speed. If plaintiff failed to establish this claim, the court *638instructed, in so many words, that he could not recover. Had excuse or justification been pleaded or relied upon, a different question might have been presented, but, as we have seen, no such issue was tendered. Moreover, after plaintiff had introduced his evidence and rested, the parties, through their counsel, agreed in open court, and in the presence of the jury, that the only cause of action was based upon the alleged tort of the defendant and its agents in assaulting and forcibly ejecting plaintiff from the train, without cause, while it was in motion • and the plaintiff dismissed all other issues presented by him, and withdrew the same from the consideration of the jury. This was entered of record by the court. The court instructed the jury that this was the only issue, set forth tht exact claim made by the plaintiff in its fourth instruction, and said that, if this was not established, then plaintiff could not recover. In view of this record, which I think the majority have overlooked, there was no room for any confusion in the use of the words “ circumstances claimed,” or “ such circumstances,” as found in the sixth instruction. Defendant simply denied that it ejected plaintiff from the train while it was in motion. So that, if we take either the charge of negligence as agreed upon by the parties and entered of record, or the statement made by the court in its fourth instruction, there can be no doubt as to what was meant by the words “ circumstances claimed.” The meaning of these words settled, there is no trouble with “ such circumstances ” or “ as claimed.” Taking the instructions as a whole, there is no doubt, I think, of their correctness, and as to what the court meant by the use of the words which the majority condemn as not sufficiently specific. In the fourth instruction the court, told the jury just what was claimed, and in so doing he followed the agreement and concession made by counsel. The claims of parties are usually set forth in their pleadings, and' these claims are generally distinct from the evidence offered to sustain them. Ordinarily, when the court refers to the claims of the parties, it has reference to the pleadings, unless *639it indicates some other source. But we need not rest upon this, for in this case the court specifically told the jury, in its fourth instruction, just what plaintiff was claiming. In the sixth instruction the court did not say “ under the circumstances of the case,” or “ under the circumstances disclosed by the evidence,” as defendant contends, but guardedly said “ under the circumstances claimed.” Having stated these circumstances in the fourth instruction in dear - and unambiguous language, I do not see where- there is any room for confusion or doubt as to what was intended. I would affirm the judgment.
Mr. Justice Weaver concurs with me in this dissent.