The United States Express Company had the use of a portion of the baggage car on a passenger train of the Union Pacific Railway Company, Eastern Division, and their travelling agents, called express messengers, were allowed to ride on this car without paying fare. Other passengers were excluded therefrom.

The plaintiff by an arrangement with the express messenger and a local agent of the express company at the state line, went into this car for the purpose of learning the route so that he might take the express messenger's place in his absence. The plaintiff was introduced to the conductor by the express messenger, as an express messenger learning the route, and afterwards he acted as such, assisting the regular express messenger along the route. The conductor allowed him to ride in the baggage car without paying any fare. There was plenty of room in the passenger cars for him. He was not in fact an express messenger, nor was he in the employ of the express company in any manner whatever; the express messenger and the agent at the state line not having any authority to employ him in any capacity. The baggage car was turned over and the plaintiff injured. Held, in an action by the plaintiff against the railway company, for damages for such injuries, that the plaintiff was not a passenger, nor entitled to the rights of a passenger.

THIS was an action by Nichols to recover for injuries alleged to have been committed by the railway company. The petition of the plaintiff set forth that there was a contract between the parties; that the defendant undertook to carry the plaintiff as a passenger in a car used among other things for that purpose, from the state line near Kansas City to and beyond Monument Station, for a certain hire and reward, and that while so carrying the said plaintiff the said injuries were caused through the negligence of the agents and servants of the defendant.

The facts are stated in the opinion of the court.

J. P. Usher and Martin Burns & Case, for plaintiff in error. Clough & Wheat and T. P. Fenlon, for defendant in error.

Valentine, J.—The petition was not true, and there was no evidence to sustain some of the most material portions of it. We have all the evidence before us, and from that it unquestionably appears that there was no contract entered into between the plaintiff and the railway company; the plaintiff was not a passenger within the true legal signification of the term; he did not get into or ride in any passenger car, and he did not pay or agree to pay any hire or reward for his passage.

The only connection that the plaintiff had with the railway company was as follows: He went on the train without purchasing any ticket, not into any passenger car, but into the baggage car, and into that portion of the baggage car which was used and occupied exclusively by the United States Express Company for their business, and remained there until he received the injuries of which he now complains. When the conductor of the train met him in the baggage car, he did not offer to pay his fare, but allowed himself to be introduced to the conductor as an express messenger. He was so introduced by Porter Warner, who had been up to that time and then was, in fact, the regular express messenger for that train. And Warner also represented to the conductor that he "was learning the plaintiff the run." During the trip the plaintiff acted as express messenger, having the keys, and assisted Warner in handling and delivering the freight of the express company. The conductor, supposing the plaintiff to be an express messenger, and therefore entitled to ride in the baggage car, and to ride free, or rather, supposing that his fare was paid or arranged for by the express company in their contract with the railway company, allowed him to ride in the baggage car and collected no fare from him. The conductor made no contract with the plaintiff, but allowed him to ride on the contract made between the plaintiff's supposed employer, the express com pany, and the conductor's employer, the railway company. The conductor supposed that the plaintiff was riding in the baggage car, and free, by authority as high as his own, and by an authority which he had no power to revoke. The conductor therefore did not attempt to confer upon the plaintiff any right to ride upon that train, but simply left the plaintiff with the right which he

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supposed the plaintiff already had, independent of any authority from himself.

But the plaintiff had no such right, nor any right there. He was not an express messenger, nor was he in the employ of the express company in any manner whatever. He was there simply by a private arrangement between himself and Warner and one McNaughten, an agent of the express company at the state line, "for billing and transferring and delivering goods for the express company." He was there simply learning the route, so that he might be able to take the place of Warner during Warner's absence. But he was not there by any authority of the express company. Neither Warner or McNaughten or both together had any authority to put him there. None but the president, vicepresident, or general superintendent of the express company had any such authority. But the plaintiff did not even have the authority or consent of the local superintendent of the express company. Therefore he had no right whatever on said train.

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Before proceeding further, perhaps, it would be proper to state that the said baggage car ran off the track and was upset, about three miles east of Monument Station, because of a "low joint" in the rail, and injured the plaintiff and one or two others; that none of the passenger coaches went off the track so as to injure the coaches or any passengers;" that there were only about twenty passengers on the train during that trip, and that "there was room in the passenger cars for some fifty or sixty more passengers than were on the train;" that "the rules of the company prohibited passengers from riding in the express, mail, or baggage cars;" that the plaintiff was so injured as to impair his mind; and that the verdict of the jury and the judgment of the court was for $22,500.

Now, so far as the argument or the decision of this case is concerned, it will be admitted that all the rulings of the court below were correct if the plaintiff had been a passenger within the true sense of that term. Also, that a regular express messenger is a passenger entitled to receive the same care as any other passenger, so far as the same can be exercised toward him, although nothing be paid for his transportation, except what the express company pays to the railway company for transportation generally of their freight and agents. Also, that any person may be a passenger entitled to all the rights and privileges of

other passengers without the payment of any fare, if he be on the train with the consent of the company or its officers, provided said consent be obtained without any fraud, or provided said company or its officers have a full knowledge of all the facts. Also, that a regular passenger may be allowed by the conductor the privilege of walking through the cars or getting on the platform or into the baggage car without forfeiting any of his rights as a passenger. And, also, that the obligations of common carriers of passengers do not rest wholly or even mainly upon contract, but principally upon the laws of the state in which such carriers do business. But it will not be admitted that any and every person who may enter a car or go upon a train is a passenger or entitled to all the rights and privileges of a passenger.

The employees of the railway company are not passengers, although they may do more riding upon the road than any other class of persons. (See the numerous decisions concerning the liability of railroad companies for injuries done to their employees through the negligence of other employees: 1 Redfield on Railways 520 to 537, and cases there cited: Shearman and Redfield on Negligence 101 to 127, chap. 6, and cases there cited.) A person who enters the cars to see a friend safely seated is not a passenger: Lucas v. New Bedford and Taunton Railroad Co., 6 Gray 64. A person who rides upon the engine of a train with the consent of the engineer, but contrary to a rule of the company, of which he is informed, is not a passenger: Robertson v. New York and Erie Railway Co., 22 Barb. 91. And generally whenever a person goes upon a train or on any part of the train without authority, he is not a passenger: Moss v. Johnson, 22 Ill. 633. It is probably true that the obligation of a common carrier of persons does not rest wholly or even mainly upon contract, but still no person can become a passenger except by a contract either express or implied. "A passenger is a person who undertakes, with the consent of the carrier, to travel in the conveyance provided by the latter, other than in the service of the carrier as such:" Shearman and Redfield on Negligence 292, sec. 262. It is true that whenever a person who desires to become a passenger on a railroad, does all that the law and the rules of the company require of him for that purpose, it will be presumed that the company has given its consent, and that the requisite contract has been made, for in such a case the company could not

legally withhold its consent; but whenever it is shown that such person has not done what is required of him, no contract will be presumed. It will then devolve upon such person to show affirmatively that a contract has been made to show affirmatively that the consent of the company has been given.

In the present case the plaintiff did not do what was required of him, in order that he might become a passenger; he did not himself make a contract with the railroad company or any of its agents; and he had no right to ride under the contract made between the express company and the railway company. The consent obtained from the conductor was the consent that an express messenger might ride in the baggage car, and without paying his fare. Such consent did not apply to the plaintiff. But if it be said that the conductor applied to the plaintiff, then it may be answered that it was so done under a misapprehension, induced by the plaintiff himself, in allowing himself to be introduced to the conductor as an express messenger, and represented to be such, when in truth and in fact he was not such. This was a legal fraud upon the conductor and upon the railway company, whatever may have been the intentions of the plaintiff.

There was but little conflict in the evidence in this case-none upon the points we have been discussing. Therefore, whether the plaintiff was a passenger or not was purely a question of law. If he was a passenger, he was undoubtedly entitled to recover, for the railway company was unquestionably guilty of some negligence in allowing the track of the railroad to get out of repair. Whether he was a passenger or not seems to have been considered by the court below, as resting almost exclusively upon the moral intentions of the plaintiff. If the plaintiff honestly believed that he did right in doing as he did, or if he honestly believed that the circumstances of the case gave him the right to do as he did, then, according to the view of the court below, he was a passenger. But on the other hand, if he knowingly practised a fraud and deception upon the conductor whereby he was allowed to ride in the baggage car without the payment of fare, he was not a passenger. This theory seems to have run through the whole charge of the court, and the whole case seems to have turned upon it. The court below, therefore, erred in its charge, in some of the instructions that it gave and in some of the instructions that it refused. We think, however, that it made no differ