Braley, J.
The plaintiff, having entered the car and paid his fare, became a passenger, and when the evidence closed it was uncontroverted that he had been assaulted by the conductor, although the place of the assault was for the jury to decide, upon conflicting evidence.
During the first part of the journey, they engaged in a verbal quarrel, which resulted in ill feeling between them; but there was no testimony that during the last half of the journey the dispute was renewed, or that the plaintiff was told that if upon [483]*483request he did not depart he would be put off when the car stopped at the turnout, where the conductor was to set a switch and display a signal light.
If, as the defendant contended and its witnesses testified, the jury were satisfied that the encounter took place after the conductor returned from the switch, they could find that the plaintiff, having passed from the car, had become a traveller, and the defendant would not be responsible for an injury then inflicted out of a spirit of vindictiveness for what had taken place on the car, or by anger aroused by the insult with which as the conductor testified the plaintiff then greeted him. Creamer v. West End Street Railway, 156 Mass. 320. McGilvray v. West End Street Railway, 164 Mass. 122. Conroy v. Boston Elevated Railway, 188 Mass. 411.
The plaintiff however contended that upon arrival at the turnout he had reached the end of his journey and prepared to leave, and the jury would have been warranted in finding upon his evidence that as he stood with one foot on the platform and the other on the step, and while he was in the act of descending, the conductor, who was standing on the ground at the foot of the steps, seized, pulled him off and knocked him down. If the turnout was his destination, or if, in response to the conductor’s order, which the plaintiff said was given, he was leaving the car, as the evidence shows, without making any resistance and in an orderly manner, the use of violence upon his person was unjustifiable. St. John v. Eastern Railroad, 1 Allen, 544.
It is only where a passenger refuses to comply with a lawful order, that, if he resists, reasonable force may be used to eject him. Coleman v. New York & New Haven Railroad, 106 Mass. 160. Conklin v. Consolidated Railway, 196 Mass. 302. And, if he uses violence on his part beyond what is necessary to prevent blows or to protect himself from excessive force, the burden is on him to prove that his illegal acts did not contribute to the injury. Coleman v. New York & New Haven Railroad, 106 Mass. 160.
The declaration, which is for an assault and battery upon the plaintiff, alleges that the assault was committed by the defendant’s conductor while the plaintiff was a passenger, and the answer, after a denial of these allegations, raised by further averments the issues that, if an assault was committed, the con[484]*484ductor at the time was not acting within the scope of his employment, or, if he was so acting, that the force used was not excessive but was justifiable in self-defense, to repel an attack by the plaintiff. But there is no evidence to which this last averment is applicable. It appears that neither in the car nor while passing from the car to the ground did the plaintiff threaten him with bodily harm or lay hands upon the person of the conductor.
If the defendant intended to rely upon the defense that the plaintiff was rightly ejected with the use of no more force than was necessary, it should have pleaded the avoidance. It was not available under the present answer. Hathaway v. Hatchard, 160 Mass. 296. Dixon v. New England Railroad, 179 Mass. 242, 249. The conductor, if attacked during transportation, undoubtedly would have been justified in using sufficient force to repel the assault and protect himself, and this defense would be available in the defendant’s behalf when sued for his acts. New Orleans & Northeastern Railroad v. Jopes, 142. U. S. 18. It is plain upon the evidence, as it stood at the close of the trial, that a verdict for the defendant could not have been ordered, and, apparently with the consent of the parties, the judge submitted to the jury three questions, the answers to which it was assumed would be decisive of the defendant’s liability. The first question, however, was not answered; and, the answer to the third question simply having negatived any contention of the plaintiff that an attempt was made to eject him as he was leaving the car, the further issue, covered by the first question, whether he was assaulted before he ceased to be a passenger, was left undecided.-
But, if there was evidence that the assault took place on the car, the defendant, without any objection by the plaintiff that the defense was not open under the pleadings, took the position that a failure to answer the first question became immaterial, since, the jury having found in answer to the second question that the assault was provoked by the plaintiff, it was not liable even if the contract of carriage had not been terminated.
The evidence leaves no doubt, and the defendant concedes, that the only provocation during transportation was the offensive language which the plaintiff addressed to the conductor, and it [485]*485also should be borne in mind that the jury could find that, not only was the battery disproportionate to the insult given, but the assault was not delivered at the time of the alleged provocation, if the assailant waited until the plaintiff was leaving the car. In other words, the defense is, that because the plaintiff, while a passenger, insulted the conductor by the use of abusive language, he contributed to his own harm, or invited the punishment inflicted upon him, and thereafter during transportation the defendant was discharged from any further duty to protect him from an assault by its servant. If the plaintiff’s words absolved the defendant, then where a passenger purposely behaves in an insulting manner toward a servant, the passenger no longer can claim the protection of the carrier, but is pub in jeopardy of a retaliatory assault at any time before transportation has ended, if such be the pleasure of the servant. He may be seriously injured or crippled for life, but has no remedy except to sue the servant, while, in the meantime, all other duties arising out of the contract must be reasonably performed by the carrier. By the plaintiff’s contract, the duty rested upon the defendant of affording him full protection from unlawful violence at the hands of the conductor, to whom, as its representative, the management of the car had been entrusted. Ramsden v. Boston & Albany Railroad, 104 Mass. 117, 121. In Bryant v. Rich, 106 Mass. 180, 190, Chief Justice Chapman, in speaking of this duty, said, “ for a violation of such a contract either by force or negligence, the plaintiff may bring an action of tort, or an action of contract,” and in the case of Goddard v. Grand Trunk Railway, 57 Maine, 202, 213, which was referred to in the opinion with approval, it was said, “ the carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust.
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Braley, J.
The plaintiff, having entered the car and paid his fare, became a passenger, and when the evidence closed it was uncontroverted that he had been assaulted by the conductor, although the place of the assault was for the jury to decide, upon conflicting evidence.
During the first part of the journey, they engaged in a verbal quarrel, which resulted in ill feeling between them; but there was no testimony that during the last half of the journey the dispute was renewed, or that the plaintiff was told that if upon [483]*483request he did not depart he would be put off when the car stopped at the turnout, where the conductor was to set a switch and display a signal light.
If, as the defendant contended and its witnesses testified, the jury were satisfied that the encounter took place after the conductor returned from the switch, they could find that the plaintiff, having passed from the car, had become a traveller, and the defendant would not be responsible for an injury then inflicted out of a spirit of vindictiveness for what had taken place on the car, or by anger aroused by the insult with which as the conductor testified the plaintiff then greeted him. Creamer v. West End Street Railway, 156 Mass. 320. McGilvray v. West End Street Railway, 164 Mass. 122. Conroy v. Boston Elevated Railway, 188 Mass. 411.
The plaintiff however contended that upon arrival at the turnout he had reached the end of his journey and prepared to leave, and the jury would have been warranted in finding upon his evidence that as he stood with one foot on the platform and the other on the step, and while he was in the act of descending, the conductor, who was standing on the ground at the foot of the steps, seized, pulled him off and knocked him down. If the turnout was his destination, or if, in response to the conductor’s order, which the plaintiff said was given, he was leaving the car, as the evidence shows, without making any resistance and in an orderly manner, the use of violence upon his person was unjustifiable. St. John v. Eastern Railroad, 1 Allen, 544.
It is only where a passenger refuses to comply with a lawful order, that, if he resists, reasonable force may be used to eject him. Coleman v. New York & New Haven Railroad, 106 Mass. 160. Conklin v. Consolidated Railway, 196 Mass. 302. And, if he uses violence on his part beyond what is necessary to prevent blows or to protect himself from excessive force, the burden is on him to prove that his illegal acts did not contribute to the injury. Coleman v. New York & New Haven Railroad, 106 Mass. 160.
The declaration, which is for an assault and battery upon the plaintiff, alleges that the assault was committed by the defendant’s conductor while the plaintiff was a passenger, and the answer, after a denial of these allegations, raised by further averments the issues that, if an assault was committed, the con[484]*484ductor at the time was not acting within the scope of his employment, or, if he was so acting, that the force used was not excessive but was justifiable in self-defense, to repel an attack by the plaintiff. But there is no evidence to which this last averment is applicable. It appears that neither in the car nor while passing from the car to the ground did the plaintiff threaten him with bodily harm or lay hands upon the person of the conductor.
If the defendant intended to rely upon the defense that the plaintiff was rightly ejected with the use of no more force than was necessary, it should have pleaded the avoidance. It was not available under the present answer. Hathaway v. Hatchard, 160 Mass. 296. Dixon v. New England Railroad, 179 Mass. 242, 249. The conductor, if attacked during transportation, undoubtedly would have been justified in using sufficient force to repel the assault and protect himself, and this defense would be available in the defendant’s behalf when sued for his acts. New Orleans & Northeastern Railroad v. Jopes, 142. U. S. 18. It is plain upon the evidence, as it stood at the close of the trial, that a verdict for the defendant could not have been ordered, and, apparently with the consent of the parties, the judge submitted to the jury three questions, the answers to which it was assumed would be decisive of the defendant’s liability. The first question, however, was not answered; and, the answer to the third question simply having negatived any contention of the plaintiff that an attempt was made to eject him as he was leaving the car, the further issue, covered by the first question, whether he was assaulted before he ceased to be a passenger, was left undecided.-
But, if there was evidence that the assault took place on the car, the defendant, without any objection by the plaintiff that the defense was not open under the pleadings, took the position that a failure to answer the first question became immaterial, since, the jury having found in answer to the second question that the assault was provoked by the plaintiff, it was not liable even if the contract of carriage had not been terminated.
The evidence leaves no doubt, and the defendant concedes, that the only provocation during transportation was the offensive language which the plaintiff addressed to the conductor, and it [485]*485also should be borne in mind that the jury could find that, not only was the battery disproportionate to the insult given, but the assault was not delivered at the time of the alleged provocation, if the assailant waited until the plaintiff was leaving the car. In other words, the defense is, that because the plaintiff, while a passenger, insulted the conductor by the use of abusive language, he contributed to his own harm, or invited the punishment inflicted upon him, and thereafter during transportation the defendant was discharged from any further duty to protect him from an assault by its servant. If the plaintiff’s words absolved the defendant, then where a passenger purposely behaves in an insulting manner toward a servant, the passenger no longer can claim the protection of the carrier, but is pub in jeopardy of a retaliatory assault at any time before transportation has ended, if such be the pleasure of the servant. He may be seriously injured or crippled for life, but has no remedy except to sue the servant, while, in the meantime, all other duties arising out of the contract must be reasonably performed by the carrier. By the plaintiff’s contract, the duty rested upon the defendant of affording him full protection from unlawful violence at the hands of the conductor, to whom, as its representative, the management of the car had been entrusted. Ramsden v. Boston & Albany Railroad, 104 Mass. 117, 121. In Bryant v. Rich, 106 Mass. 180, 190, Chief Justice Chapman, in speaking of this duty, said, “ for a violation of such a contract either by force or negligence, the plaintiff may bring an action of tort, or an action of contract,” and in the case of Goddard v. Grand Trunk Railway, 57 Maine, 202, 213, which was referred to in the opinion with approval, it was said, “ the carrier’s obligation is to carry his passenger safely and properly, and to treat him respectfully, and if he entrusts the performance of this duty to his servants, the law holds him responsible for the manner in which they execute the trust. The law seems to be now well settled that the carrier is obliged to protect his passengers from violence and insult, from whatever source arising. . . . He must not only protect his passenger against the violence and insults of strangers and co-passengers, but a fortiori against the violence and insults of his own servants. If this duty to the passenger is not performed, if this protection is not furnished, but on the contrary the passenger [486]*486is assaulted and insulted, through the negligence or the wilful misconduct of the carrier’s servant, the carrier is necessarily responsible.”
It is to be presumed that the defendant did not authorize the acts complained of, and no question of the conductor’s authority is involved. The plaintiff’s contract was with the defendant, whose liability for the consequences which could have been found to have followed from neglect of its duty to protect the plaintiff while he remained a passenger from the conductor’s violence is established not only by our own decisions but by the great weight of authority. Moore v. Fitchburg Railroad, 4 Gray, 465. St. John v. Eastern Railroad, 1 Allen, 544. Ramsden v. Boston & Albany Railroad, 104 Mass. 117,121. Bryant v. Rich, 106 Mass. 180. Brooks v. Old Colony Railroad, 168 Mass. 164, 165. Levins v. New York, New Haven, & Hartford Railroad, 183 Mass. 175,177. Hayne v. Union Street Railway, 189 Mass. 551. Kuhlen v. Boston & Northern Street Railway, 193 Mass. 341, 346. Busch v. Interborough Rapid Transit Co. 187 N. Y. 388, 392. Hanson v. European & North American Railway, 62 Maine, 84, 88. Pittsburg & Connellsville Railroad v. Pillow, 76 Penn. St. 510. Craker v. Chicago & Northwestern Railway, 36 Wis. 657. Chicago & Eastern Railroad v. Flexman, 103 Ill. 546. Williams v. Gill, 122 N. C. 967. Birmingham Railway, Light & Power Co. v. Mullen, 138 Ala. 614. Spohn v. Missouri Pacific Railway, 101 Mo. 417. New Orleans, St. Louis & Chicago Railroad v. Burke, 53 Miss. 200. McKinley v. Chicago & Northwestern Railroad, 44 Iowa, 314, 318. Louisville & Nashville Railroad v. Kelly, 92 Ind. 371. Sherley v. Billings, 8 Bush, 147. Baltimore & Ohio Railroad v. Barger, 80 Md. 23. Haver v. Central Railroad, 33 Vroom, 282, 285. Knoxville Traction Co. v. Lane, 103 Tenn. 376. Mahoning Valley Railway v. DePascale, 70 Ohio St. 179. Lafitte v. New Orleans, City & Lake Railroad, 43 La. Ann. 34. Houston & Texas Central Railway v. Batchler, 32 Tex. Civ. App. 14, 17. Haman v. Omaha Horse Railway, 35 Neb. 74. Smith v. Norfolk & Western Railway, 48 W. Va. 69, 70. Texas & Pacific Railway v. Williams, 62 Fed. Rep. 440. Harrison v. Fink, 42 Fed. Rep. 787. New Jersey Steamboat Co. v. Brockett, 121 U. S. 637. New Orleans & Northeastern Railroad v. Jopes, 142 U. S. 18. It [487]*487results from the application of this rule that the servant is justified in using force upon a passenger only to protect himself from bodily harm, but even then he cannot lawfully go further than is reasonably necessary for his defense, and the proper management of the carrier’s business.
If provocation by mere words therefore does not exonerate the carrier, yet when sued for the assault, evidence of insulting language and insolent conduct of the passenger which induced the attack is admissible in mitigation of compensatory damages, where it appears that the provocation and the blow were substantially coincident. Child v. Homer, 13 Pick. 503, 507. Brown v. Gordon, 1 Gray, 102. St. John v. Eastern Railroad, 1 Allen, 544. Tyson v. Booth, 100 Mass. 258. Bonino v. Caledonio, 144 Mass. 299. Kiff v. Youmans, 86 N. Y. 324, 330. Robison v. Rupert, 23 Penn. St. 523. Baltimore & Ohio Railroad v. Barger, 80 Md. 23, 24.
We find nothing in the cases cited by the learned counsel for the defendant which materially modifies or affects the conclusion to which we have come, except the case of Scott v. Central Park, North & East River Railroad, 53 Hun, 414, where a contrary decision was made by a divided court. But that case was doubted, criticised and not followed in Weber v. Brooklyn, Queens County & Suburban Railroad, 47 App. Div. (N. Y.) 306; S. C. 62 N. Y. Supp. 1. The use of opprobrious and hot tempered language by the plaintiff, even though it was justly provocative of anger and, with his partial intoxication, might have warranted his ejection as a passenger, did not justify the use of physical force upon his person by the conductor, whatever may have been the motive by which he was prompted, and the defendant’s duty had not been discharged until the plaintiff had a reasonable opportunity to pass unmolested from the car and to depart. The substantial error of the trial arose from the assumption that under the circumstances verbal provocation was the legal equivalent of justification, and, the special findings of the jury not having determined the rights of the parties if the assault was committed as described by the plaintiff, the judge could not properly order a verdict for the defendant. Hurley v. Boston, 202 Mass. 68.
We do not find it necessary to consider more specifically the [488]*488rulings given and refused. In accordance with the terms of the report a majority of the court are of opinion that the verdict must be set aside and a new trial granted.
So ordered.