delivered the opinion of the Court.
The action below was trespass by the appellee to recover for personal injuries inflicted upon him by the appellant Moffett.
The right to recover against the appellant company is *215predicated upon the fact that Moffett was an employe of the company, and upon the theory he was, at the time the injuries were inflicted upon appellee, acting in the line of his duty and in the course of his employment, and while so acting forcibly and unlawfully assaulted and injured the appellee.
Moffett was ticket agent and telegraph operator, of the appellant company at Pontiac, and on Sunday, November 4, 1894, was in charge of its depot, including the waiting rooms for passengers at that station.
About 9 o’clock in the night of that day, appellee Randolph came into the waiting room for men in the depot. He was in an intoxicated condition, and soon after coming into the room vomited upon the floor, and, without going into details, we may say his condition and conduct was such as to justify his expulsion from the room.
Moffett, who was a crippled and lamed man, had before that been appointed deputy sheriff, for the purpose of clothing him with authority to preserve order in the depot, and he carried an officer’s “ billy.” He attempted to eject Randolph, who resisted, and a struggle ensued.
We need not here refer to what occurred in the course of the struggle in the room, further than to say we have carefully read the testimony relating to it, and that it does not appear Moffett used more force than was proper and necessary to remove Randolph from the room, and that in so doing the latter did not receive any injury for which it can be seriously claimed the judgment can be sustained.
They passed out of the door to and upon the platform and there Moffett was knocked down by a violent blow delivered by Randolph, and the latter received a pistol ball in his thigh at the hands of Moffett. If any damages ought to be awarded it is for the injury caused by the wound from the pistol ball.
There is conflict in the testimony as to which of the parties struck the first blow upon the platform.
The testimony upon the part of the appellee tends to show that after they were upon the platform the appellee cursed *216Moffett and called him a son of a b--h and that Moffett struck or struck at appellee with the billy, and that appellee then struck Moffett, knocked him down, started to run and Moffett fired upon him.
The testimonj*- upon the part of appellants tended to show that after they had passed out upon the platform and Moffett was in the act of turning about to return to the room the appellee cursed him, applied to him the opprobrious epithet before mentioned and struck him a violent blow in the eye which, as one of the witnesses expressed it, “ turned him a somersault” and knocked him down upon the floor of the platform, and that Moffett arose and fired at appellee as he was running away, etc. If the testimony in either behalf be accepted we think it appeared beyond dispute the altercation upon the platform occurred after Moffett had accomplished all that his sense of duty as agent of the company prompted him to do, and that the appellee brought on what was in fact a second difficulty, by his own highly provoking and unjustifiable language and conduct.
This being true, there is no ground of reason or law requiring the appellant company to respond in damages for his injuries, received in the course of such an affray.
The argument the company owed the appellee the duty it owes to a passenger can have no weight.
The appellee testified he came to the depot for the purpose of going on its train to Chicago, but no train upon which passengers were carried or were allowed to ride was due to leave within five hours of the time he came there. Freight trains were to depart earlier and it is most probable,' from all the testimony, he intended to make his way to Chicago on a freight train without paying his fare.
He testified that. after he was struck by the pistol ball fired by Moffett he ran four or five blocks to the park; remained there for a time and then returned; crept into a stock car of a freight train while the train was moving and rode in the stock car to Chicago.
The evidence does not disclose a right of recovery against the appellant company, and as to it the judgment is reversed *217and the cause will not be remanded. Nor are we by any means satisfied the verdict and judgment of §700 ought to stand against the appellant Moffett.
The injury to the appellee, though from a pistol shot, was not seriods, nor was his actual damage great, and his conduct upon the occasion in question was disorderly and exasperating in a high degree. He inflicted upon Moffett a serious and Highly provoking personal injury, apparently sufficient to arouse great if not irresistible passion, under the influence of which the shot was fired. Moffett, if liable at all, ought to respond only in actual damages. We think the case, confined to an issue between Randolph and Moffett, should be submitted to another jury.
The judgment against the appellant company is reversed and as to it the cause is not remanded.
Judgment as to appellant Moffett reversed, and cause as to him remanded. Reversed and remanded accordingly.
Chicago & Alton Railroad Com-' pany and Ernest Moffett v.
Arthur Randolph.
- Appeal from McLean.
The clerk will incorporate following finding of facts in the judgment of reversal as to the appellant company:
The court finds from the evidence that the appellant Moffett was not, at the time he fired the shot at the appellee, acting in the line of his duty or course of his employment as an employe of the appellant company, and that evidence does not show any injury was inflicted upon Randolph by Moffett while the latter was so acting as an employe or in the line of his duty as such.
The court finds the appellant Moffett as agent of the appellant company, was authorized by the conduct and condition of Randolph to use the force reasonably necessary to eject him from the waiting room, and that no excessive force to that end, was used.