(after stating the facts as above).
[1,2] In exoneration of any liability for the brakeman’s act, the appellant claimed, both in its answer and proof, that whatever injury appellee sustained was inflicted by the brakeman in the legal and reasonable defense of his own person from an attack made by appellee on him. And the court’s charge in the third paragraph defined, and in the fourth paragraph applied to the facts of the case, self-defense, in justification of the brakeman. As both the second and third assignments of error complain of this portion of the charge, they may be here considered together. It is first objected that a mere abstract statement relating to the law of self-defense, as applied in criminal cases, is improper and prejudicial. The law of self-defense and the stage of the difficulty at wMch self-defense ceases are the same in civil cases as in criminal prosecutions, with the exception that the strict rule of evidence applicable to the degree of proof in a criminal prosecution, which must exclude reasonable doubt, is not extended to civil actions. March v. Walker, 48 Tex. 372. It is not thought that a reversal of the judgment is warranted upon the ground that the instruction was but a definition, if the court, in applying the law to the issue of self-defense as a justification of the act of the brakeman, did so correctly. The instruction is as follows:
“Now, if you find from the evidence that the defendant’s said brakeman, did, at the time and place alleged by the plaintiff, make an assault on the person of plaintiff, but further find from the evidence that, at the time such brakeman did so, the plaintiff was making or was about to make an assault upon the said brakeman, which had not been provoked by the wrongful conduct, if any, of said brakeman, and which, viewed from the standpoint of such brakeman and no other, reasonably caused him to believe he was in danger of suffering death or bodily injury at the hands of the plaintiff, and the brakeman made the assault, if any., upon the plaintiff for the purpose of defending himself from what reasonably appeared to Mm to be danger of death or bodily injury at the hands of the plaintiff, and such brakeman used no more force than to him at the time appeared reasonably necessary to his defense, then and in the event you so find you will return a verdict for the defendant.”
The giving of the instruction is objected to by appellant upon the grounds: (1) That the liability for assaults on passengers is based on negligence; and (2) that it limited the right of defense by tbe brakeman to (a) an assault or threatened assault by appellee “wMch had not been provoked by the wrongful conduct, if any, of said brakeman,” and (b) the use “of no more force than to him at the time appeared reasonably necessary to his defense”; and (3) the undisputed evidence shows such misconduct and violent conduct of the passenger as to preclude his recovery.
[3] First, in this case it is not contended that the battery of the brakeman was not intentional, but a mere casualty. In that case, if the battery was not intentional and purposed, the defendant therein is guilty of no wrong, save his negligence, and the plaintiff could not recover at all without showing a want of ordinary care on the part of the defendant. The difference between such case and the instant one is substantial and vital. Here the brakeman intentionally and purposely perpetrated the battery. If intentionally done, it was not negligently done. And, in cases where the injury is caused by intentional violence inflicted upon the person, the plaintiff’s right of recovery would he measured by the rule of whether or not his assailant was justified or excused by all the-*707circumstances In committing the act. Croft v. Smith, 51 S. W. 1089. A corporation is liable for an assault and battery when its agent in committing it was performing some act within the limits of his authority, but without justification or excuse, or with excessive force. 1 Cooley on Torts (3d Ed.) 202; Dillingham v. Anthony, 73 Tex. 47, 11 S. W. 139, 3 L. R. A. 634, 15 Am. St. Rep. 753.
[4, 5] And next, measuring the right of the brakeman to self-protection as a justification, the court left to the jury to find whether or not the assault of the appellee, which the brakeman was claiming to resist, had been “provoked by the wrongful conduct, if any, of the said brakeman.” The instruction in legal effect is that a plea of self-defense cannot be sustained where the defendant was the aggressor and provoked the encounter in which the battery was committed. At the trial it appeared that the appellee struck the first blow. But it was claimed by appellee that the brakeman was the aggressor, and that his assault, which led to the conflict, was in consequence of an attack being made upon him by the brakeman. And there is evidence going to sustain appellee’s contention that the brakeman was actually attempting to make an assault upon him with a dangerous weapon, and within striking distance, when he kicked him to prevent the attack. In such evidence the issue was in the case of menace by overt act on the part of the brakeman, and therefore the court did not err in requiring the jury to find, in order to a perfect right of self-defense, that the brakeman was free from wrong in occasioning or producing the necessity which required his action. And neither did the court err, it is thought, in leaving to the jury to find whether or not the force used was reasonable. Whether or not the force used was reasonable is a question of fact to be determined from the evidence by the force used at the time and the circumstances of the occasion and the nature of the act done. The issue, we think, was made by the circumstances. And it is not thought that the evidence was so far one way as to warrant the ruling, as a matter of law, that the misconduct or violent conduct of the appellee was so far a wrongful act as to preclude a recovery.
We have considered the remaining assignments, and think they should be overruled. The issues made by the evidence were correctly submitted in the court’s charge and the special charges given at the request of the appellant.
The judgment is affirmed.
<&wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes
other oases see same topic and KEY-NUMBER, in all Key-Numbered Digests and Indexes