678

what is shown in the Barnes patent if the straps forming the socket at the upper end of the Barnes patent were slightly spread or extended with less width. It would be the same as the construction shown in the Smith and Cunningham patents if the sockets of the said patents were split longitudinally, as shown in the Barnes patent. The construction shown in the Barnes patent, in which the straps form a socket throughout its entire length, is undoubtedly much stronger than the Myers construction." He concluded, therefore, that there was no particular difference between what was shown and claimed in the Myers patent and what was shown in the prior patents referred to. As to the Ames California spade, he testified: "The California spade shows a construction in which the handle is secured to the blade by means of two straps, which approach each other at their ends next to the blade, and form a union, or practical union, and make a socket, in which the lower part of the handle is encased. I therefore find the said California spade to have a construction in which the handle is secured by a socket and straps, the two straps forming a union near the blade, and terminating in a socket, substantially in the manner and for the purpose set out and claimed in the Myers patent. It will be seen from this that the California spade has a construction having all the advantage of the ordinary handle straps combined with the socket, whereby the handle is greatly strengthened and securely attached to the blade, and consequently embodies all the advantages of the Myers construction. The two constructions are practically the same.

We quote thus at length from the testimony of this witness, because, after a careful examination of the various exhibits in evidence, we quite agree with his conclusion. Counsel for appellant, referring to the California spade, says: "This spade has heavy straps, which are riveted to the blade of the spade at their lower ends, and extend upward to within an inch and a half of the bow of the handle. They taper gradually from the blade upward. They do not, however, form a socket, because, while they nearly meet around the wood. en handle near the blade, they are cut in at that point so as to form a ferrule around the wood, but not a socket on the blade."

But there is no description of any socket in the blade in the Myers patent. The specification says: "In the drawings, A represents a scoop blade, which may be of any of the known forms and constructed of the ordinary material. B represents the handle, which is constructed of wood. C and E represent the handle straps, which are cut (in the form shown in Fig. 4) from sheet-iron or sheet-steel, and furnished with openings for the rivets used for attaching them to the blade, A, and handle, B. The straps, C and D, are then swaged into the form necessary for the upper and lower strap, as indicated in Figs. 1 and 2, so that the edges, f, f, in Fig. 4, meet, as at g, in Figs. 2 and 3, forming the socket, e, (indicated in Fig. 3.) The parts, h and i, of the straps, C and D, are

then riveted to the blade, A. The straps, C and D, may be forged and plaited with the blade, A. The handle, B, is then fitted into the socket, e, and the straps riveted to the handle, as shown in Figs. 1 and 2. By constructing handle straps in two pieces of the form shown in Fig. 2, a sock. et for the reception of the end of the handle is formed, having the advantage of the ordinary handle straps combined with said socket, whereby the handle is greatly strengthened and securely attached to the blade, A, and said combined socket and handle straps are constructed with economy of labor and material, and with great facility." The drawings do not show any section of a socket within the blade. The socket shown is formed by riveting the straps to the blade, and the handle does not extend below the socket created by the union of the straps. As this California spade is in all substantial respects the same as the implement described in the Myers patent, and, as appears from the evidence, was largely made and sold between 1860 and 1870, and had been in stock at the Ames Works in Massachusetts for 15 or 20 years prior to 1886, we entirely concur with the circuit court, and the decree is consequently affirmed.

Mr. Justice BRADLEY and Mr. Justice GRAY did not hear the argument, and took no part in the decision of this case.

(142 U. S. 18, NEW ORLEANS & N. E. R. Co. v. JoPES. (December 7, 1891.)

CARRIERS OF PASSENGERS-INJURY BY SERVANTEXCEPTIONS TO INSTRUCTIONS.

1. When a railroad conductor shoots a passenger, under the belief, which is reasonably warranted by the passenger's manner, attitude, and conduct, that an immediate assault upon him with a deadly weapon is intended, the company is not liable in damages, although in fact there was no actual danger.

2. A carrier is not liable in damages for an injury caused to a passenger by its servant under circumstances which free the servant from all criminal or civil responsibility.

3. When a bill of exceptions sets out an instruction given by the court, following it with the words, "to which defendant excepted," it will be presumed that the exception was taken at the trial, and while the jury were at the bar, although there was no explicit statement to that effect.

In error to the circuit court of the United States for the southern district of Mississippi. Reversed.

Action by Joseph H. S. Jopes against the New Orleans & North-Eastern Railroad Company to recover damages for an injury caused by a conductor in shooting him while a passenger on one of its trains. Verdict and judgment for plaintiff. Defendant brings error.

The facts of the case fully appear in the following statement by Mr. Justice BREW

ER:

On July 24, 1886, the defendant in error (plaintiff below) was a passenger on the train of the plaintiff in error. While such passenger, and at Nicholson station, in Hancock county, Miss., he was shot by Carlin, the conductor, and seriously injured. For such injury, he brought his action in damages in the circuit court of

that county. The case was regularly removed to the United States circuit court for the southern district of Mississippi, and a trial resulted in a verdict and judgment on May 15, 1888, in his favor for the sum of $9,500, to reverse which judgment the defendant sued out this writ of error. Of the fact of the shooting by the conductor, and the consequent injuries, there was no dispute. The testimony in the case was conflicting as to some matters, and there was testimony tending to show that the plaintiff approached the conductor with

an

open knife in his hand, and in a threatening manner, and that the conduct. or, fearing danger, shot and wounded the plaintiff, in order to protect himself. The bill of exceptions recited that in its general charge "the court instructed the jury that if the evidence showed that the plaintiff was a passenger on the train, and that he was shot and wounded by the conductor whilst he was such passenger, and whilst prosecuting his journey, and such shooting was not a necessary self-defense, the plaintiff was entitled to recover compensatory damages; but if the jury believe the plaintiff, when shot, was advancing on the conductor, or making hostile demonstrations towards him with a knife, in such a manner as to put the conductor in imminent danger of his life or of great bodily harm, and that the conductor shot plaintiff to protect himself, the plaintiff was not entitled to recover; but if it appeared that the conductor shot the plaintiff whilst such passenger and prosecuting his journey, wantonly and without any provocation at the time, then the jury might award exemplary damages." And further, that, "responding to the request of defendant that the court should instruct the jury that if they believed from the evidence that when Carlin shot the plaintiff, he, Carlin, had reasonable cause to believe from Jopes' manner and attitude that he, Jopes, was about to assault Carlin with the knife, and that it was necessary to shoot him to prevent great bodily harm from Jopes, then that the jury should find for defendant, whether Jopes was intending to do Carlin great bodily harm or not, the court declined to instruct, but instructed that, in that state of the case, if Carlin shot under the mistaken belief from Jopes' actions that he was in danger of great bodily harm then about to be done him by Jopes, when in fact Jopes was not designing or intentionally acting so as to indicate such design, the plaintiff should be entitled to compensatory damages, and not punitive damages. To this last instruction an exception was taken, and this presented the substantial question for consideration.

Edward Colston, for plaintiff in error. Marcellus Green and Calderon Carlisle, for defendant in error.

Mr. Justice BREWER, after stating the facts as above, delivered the opinion of the court.

A preliminary question is raised by counsel for the defendant in error. It is insisted that the bill of exceptions does not show that this exception was taken at the trial, and while the jury was at the

bar, and therefore not in time. In support of this contention several authorities are cited. While it is doubtless true that, if the exception was not taken until after the trial, it would be too late, and to that effect are the authorities, yet we do not think the record shows that such was the fact in this case The trial commenced on the 14th and was concluded on the 15th, and the bill of exceptions was sealed and signed on the 16th of May. The motion for a new trial was not overruled until the 26th. The bill of exceptions recites in the ordinary form the coming on of the case to trial, the impaneling of a jury, the testimony offered, and the instructions given and refused. In respect to one matter of testimony the bill of exceptions recites: "Whereupon the court refused to allow the testimony, to which ruling the defendant excepted. So, following the recital in respect to the last matter of instructions, is the statement "to which defendant excepted. It is true, the words used are not "then and there excepted; neither is it said that the court" then and there instructed;" but, as the bill purports to be a recital of what took place on the trial, it is to be assumed that the instructions were given, and the exceptions taken, during and as a part of the trial. The statement as to the exception follows that as to the instructions, and the only fair and reasonable intendment from the language is that, as the one was given, so the other was taken, at the trial. The same form of recital was pursued in the case of U. S. v. Breitling, 20 How. 252, and held sufficient. In the case of Barton v. Forsyth, Id. 532, it appeared that after the verdict and judgment the defendant filed a motion, supported by affidavit, which was overruled. Following the recital of this fact, the record added, "To all which decisions, rulings, and instructions defendant then and there excepted;" and it was held that such recital showed that the exceptions were taken at the time of the overruling of the motion. In the case of Phelps v. Mayer, 15 How. 160, the verdict was rendered on the 13th of December, and the next day the plaintiff came into court and filed his exceptions, and there was nothing to show that any exception was reserved pending the trial. In Brown v. Clarke, 4 How. 4, it was a matter of doubt whether the exceptions were taken to the instructions or to the refusal to grant a new trial. Of course, in the lat ter case they would not have been avail. able. In the case of Walton v. U. S., 9 Wheat. 651, it appeared that the exception was not taken until after the judgment.

The reasoning of all these cases makes in favor of the sufficiency of this bill of exceptions, and it may be laid down as a general proposition that, where a bill of exceptions is signed during the term, purporting to contain a recital of what transpired during the trial, it will be assumed that all things therein stated took place at the trial, unless from its language the contrary is disclosed. We hold, therefore, that the record shows that the exception to this instruction was duly taken, and pass to a consideration of the principal question, and that is, whether such in

struction contains a correct statement of the law applicable. Its import is that, if the conductor shot when there was in fact no actual danger, although, from the manner, attitude, and conduct of the plaintiff, the former had reasonable cause to believe, and did believe, that an assault upon him with a deadly weapon was intended, and only fired to protect himself from such apprehended assault, the company was liable for compensatory damages. In this view of the law we think the learned court erred. It will be scarcely doubted that if the conductor was prosecuted criminally, it would be a sufficient defense that he honestly believed he was in imminent danger, and had reasonable ground for such belief. In other words, the law of self-defense justifies an act done in honest and reasonable belief of immediate danger. The familiar illustration is that, if one approaches another, pointing a pistol, and indicating an intention to shoot, the latter is justified by the rule of self-defense in shooting, even to death; and that such justification is not avoided by proof that the party killed was only intending a joke, and that the pistol in his hand was unloaded. Such a defense does not rest on the actual, but on the apparent, facts, and the honesty of belief in danger. By the Revised Code of Mississippi, (1880,) section 2878, (and this section is common to the homicide statutes of several states,) homicide is justifiable when committed in the lawful defense of the person when there shall be reasonable ground to apprehend a design to do some great personal injury, and imminent danger of such design being accomplished. In Whart. Crim. Law, (9th Ed.) § 488, the author says: "It is conceded on all sides that it is enough if the danger which the defendant seeks to avert is apparently imminent, irremediable, and actual. Bang v. State, 60 Miss. 571; Shorter v. People, 2 N. Y. 193; Logue v. Com., 38 Pa. St. 265. And the same rule of immunity extends to civil as to criminal cases. the injury was done by the defendant in justifiable self-defense, he can neither be punished criminally, nor held responsible for damages in a civil action. Because the act was lawful, he is wholly relieved from responsibility for its consequences. 3 Bl. Comm. 121. The case of Morris v. Platt, 32 Conn. 75, fully illustrates the extent to which immunity goes. In that case it appeared that the defendant when assaulted had fired in self-defense, and, missing the assailant, had wounded an innocent by-stander, and the court held that the party thus assailed was free from both civil and criminal liability. The act which he had done was lawful, and without negligence, and no one, not even a third party, not an assailant, but an innocent by-stander, could make him answer in damages for the injury occasioned thereby.

If

It would seem on general principles that, if the party who actually causes the injury is free from all civil and criminal liability therefor, his employer must also be entitled to a like immunity. That such is the ordinary rule is not denied; but it is earnestly insisted by counsel that where

the employer is a common carrier, and the party injured a passenger, there is an exception, and the proposition is laid down that the contract of carriage is broken, and damages for such breach are recoverable, whenever the passenger is assaulted and injured by an employe without actual necessity therefor. It is urged that the carrier not only agrees to use all reasonable means to prevent the passenger from suffering violence at the hands of third parties, but also engages absolutely that his own employes shall commit no assault upon him. We quote from the brief the contention: "The cause of action was breach of the contract to carry safely. The defense sought excuse for the non-performance, in that plaintiff had abandoned the contract, and made an as. sault upon the servant of defendant, to whose care he was committed, and that, therefore, defendant could not perform by reason of plaintiff's own act. Under this the facts must exist to excuse the breach, not that the servant had reasonable cause to believe they existed, but that they existed in fact. Under the criminal law, if there is a reasonable doubt, it suffices to excuse, but the non-performance of contracts cannot be excused upon beliefs. Special reference is made to the case of Steam-Boat Co. v. Brockett, 121 U. S. 637, 7 Sup. Ct. Rep. 1039, in which this court held that "a common carrier undertakes absolutely to protect its passengers against the misconduct or negligence of its own servants, employed in executing the contract of transportation, and acting within the general scope of their employment;" a proposition which was fortified in the opinion by reference to several authorities. But it will be noticed that that which, according to this decision, the carrier en. gages absolutely against is the misconduct or negligence of his employe. If this shooting was lawfully done, and in the just exercise of the right of self-defense, there was neither misconduct nor negligence. It is not every assault by an employe that gives to the passenger a right of action against the carrier. Suppose a passenger is guilty of grossly indecent language and conduct in the presence of lady passengers, and the conductor forcibly removes him from their presence, there is no misconduct in such removal; and, if only necessary force is used, nothing which gives to the party any cause of action against the carrier. In such a case, the passenger, by his own misconduct, has broken the contract of carriage, and he has no cause of action for injuries which result to him in consequence thereof. He has voluntarily put himself in a position which casts upon the employe both the right and duty of using force. There are many authorities which in terms declare this obligation on the part of the carrier, and justify the use of force by the employe, although such force, reasonably exercised, may have resulted in injury. But if an employe may use force to protect other passengers, so he may to protect himself. He has not forfeited his right of self-defense by assuming service with a common carrier; nor does the common carrier en- 2 gage aught against the exercise of that