Hemingway, J. 1. Railway regulation-Chair car. The payment of first-class passenger fare . OOeS not entitle one to demand carnage in a car equipped with adjustable reclining chairs and lavatory and served by a special porter. And where a railway company furnishes sufficient first-class cars with the usual appliances and service, for the accommodation of those entitled to first-class, passage, and upon the same train carries a chair car which furnishes the extra service and accommodations above indicated, it may lawfully demand a reasonable extra compensation of passengers who from choice take passage in it, and this right is not denied or restricted by the statute which limits the sum railways may charge for “ first-class passage.” The facts being undisputed, it is the province of the court to declare the regulation reasonable. Railway v. Adcock, 52 Ark., 406.
2. Removal of passenger. If a passenger declines to pay a proper extra charge for passage in a chair car, he should leave it and accept a seat in the first-class car; if, upon request, he declines to do this, he cannot complain if he is conducted from the car in which he is not entitled to passage to one in which he is-entitled to it, provided his removal is accompanied by no unnecessary or improper violence or force.
3. Advertise-men t of free chaircar-DamAn advertisement by the railway in which it was stated generally that free reclining chair cars would be run upon its-road, and specially that free reclining chair cars would be run to Fort Worth, does not warrant the inference that such cars were free to all passengers under all circumstances, or that they were free at all except to those taking passage to Fort Worth; but if such inference could be drawn, it would not warrant a recovery except upon a showing that the plaintiff had been .misled in that regard, and thereby sustained some loss—facts not appearing in this case.
As the instructions may be tested by the principles announced, we deem it unnecessary to consider them. There was no evidence to sustain a recovery for the statutory penalty, for the charge was not excessive; there was none to sustain a recovery for damages, for the defendant did no wrong, and the plaintiff sustained no loss. The motion for a new trial should have been granted, and for the error in refusing-it the judgment must be reversed.