It is contended in the brief of the defendant that the motion for judgment of nonsuit ought to have been sustained, because there is no evidence that the intestate of the plaintiff was down on the track in an apparently helpless condition, or, if in this position, that he could have been discovered by the employees of the defendant on the second train in time to avoid the killing, by the exercise of ordinary care but it appears from the record that the action was not tried on this theory, and, on the contrary, that liability was imposed on the defendant and a recovery permitted under the principle announced in Roseman v. R. R., 112 N. C., 716, where it is held that if the power given by law to eject a passenger, in proper cases, “is exercised in such a manner as to willfully and wantonly expose the ejected person to danger of life or limb, the company is still liable for injury or death resulting from the expulsion,” and that “Cases falling within this last exception to the general rule, and not intended to be included under the statute, arise where the persons ejected are manifestly too infirm to travel or too much intoxicated to be trusted to find the way to the nearest house or station. 3 Wood R. R. Law, sec. 362; 2 Sherman & Red. Neg., sec. 493; R. R. v. Right, 34 Am. Rep., 277.”
That this is the ground upon which damages have been awarded is clearly shown by the charge, and it is not contended there is no evidence to support it. His Honor instructed the jury that “No man had a right to ride upon a common carrier without either purchasing a ticket or tendering his fare; and even though the passenger has a ticket and fails to produce it, either from his own carelessness or drunkenness, that doesn’t *98relieve the conductor of his right and duty to put him off if he doesn’t tender the ticket or the fare. So that, ordinarily, if the passenger, as in this case, does not, upon the demand of the conductor, produce a ticket or pay his fare, and is put off the train, he would have no cause of complaint, because in that event the conductor would only be performing his duty to the railroad company. But this has the qualifications that, as a general rule of law — and that is insisted upon as the ground of liability in this case — if the passenger be in such a condition, either from drink or from disease, that the conductor, in making his observations incident to the performance of his duties in going through the train and taking-up tickets and caring for his passengers, had reason to believe that the passenger was in such condition, mental or physical, as that being put off the train he would be incapable of providing for his own safety, and while in that condition he was put off, and as the proximate result thereof he was run over and killed by a train of the defendant, then there would be actionable negligence. I may say, further, gentlemen, that in the view I take of this case there was no negligence on the part of the defendant’s conductor, either upon the testimony of the plaintiff or the defendant, as to the place at which the plaintiff’s intestate, Frank lee, was put off the train. ... So that, your real inquiry, as I understand the contentions of the plaintiff and defendant, is whether it was a breach of duty on the part of the defendant in putting him off while he was in such a condition that he was incapable of earing for his own safety. If he was in this sort of condition, and that could have been reasonably perceived by the conductor in performing his duties to the company and to the passengers, then he ought to have been carried to the next station and turned over to the authorities there to be taken care of, and ought not to have been put off the train in a condition where he was unable from drunkenness to protect himself from the dangers of the moving train. . . . And I charge you upon this first issue that if the evidence satisfies you by its greater weight, the burden being upon the plaintiff, that at the time the passenger, Frank Lee, was put off the train he was incapable from drunkenness of caring for himself and providing for his own safety, and the conductor, in the discharge of his duty as such conductor, could reasonably have perceived from all the surrounding circumstances that he was in that condition, and put him off, knowing or having reason to believe that he was in that condition, and as a proximate result thereof he was run over and killed, then you would answer this first issue ‘Yes.’ Unless you are so satisfied, you would answer it No.’ ”
"We are therefore of opinion the motion for judgment of nonsuit was properly overruled.
*99Tbe statement of a witness, “If tbis train don’t kill bim, tbe next will,” and of another, “He is scrambling on tbe ground, trying to catcb tbe train,” botb made in tbe presence of tbe conductor, according to tbe evidence of tbe plaintiff, were competent on tbe question of knowledge of tbe helpless condition of tbe intestate.
Tbe other exceptions require no discussion further than'to say tbat tbe charge is full, clear, and .accurate, and fair to botb parties, and we find nothing justifying tbe criticism that it unduly emphasizes tbe contention of either party.
No error.