far as his ticket will carry him under the rules of the company, if he chooses.198 Other courts have held that the relation was terminated under the following circumstances:-Where the passenger alighted from the train at a station, and proceeded towards a section house connected with the station, for the purpose of engaging in his business, which was that of a peddler;199 where the passenger had actually left the premises of the railroad company and accepted entertainment at a hotel, although he intended to resume his journey the next day;200 where an intoxicated passenger safely alighted and left the depot at his place of destination;201 where a person entered the wrong train, and, on discovering his mistake, voluntarily got off and undertook to walk to a place where he could get his proper train, the conclusion being that he ceased to be a passenger after he got off;202 where, the train having temporarily stopped before reaching the station, a passenger left it at that place, for the sole purpose of going to his home, which was nearer from that point than from the station, and was injured while walking along the track;203 where the passenger, after reaching the station which was his destination, crossed over to the opposite side of the train for the purpose of seeing the engineer on private business, and, while subsequently recrossing on the rear platform of the baggage car, tripped over an obstruction and was hurt;2 ;204 where the passenger left the train at a station platform and proceeded along the track en route to her home, she not being, while so proceeding, entitled to that high degree of care which the law demands of carriers for the protection of their passengers.205 But where the passenger left the way car of a freight train in which he was riding, and ran on a flat car in front of it in order to avoid a collision which was imminent between the car and a train approaching from behind, and after he got out the collision took place, injuring him, it was held that the relation had terminated.206 It may be added that, if the railroad company af

198 Toledo &c. St. R. Co. v. Fuller,

9 Ohio C. D. 123; s. c. 17 Ohio C. C. 562.

199 Krantz v. Rio Grande &c. R. Co., 12 Utah 104; s. c. 30 L. R. A. 297; 41 Pac. Rep. 417; 2 Am. & Eng. Rail. Cas. (N. S.) 432.

200 King v. Central &c. R. Co., 107 Ga. 754; s. c. 33 S. E. Rep. 839.

201 Rozwadosiskie v. International &c. R. Co., 1 Tex. Civ. App. 487.

202 Finnegan v. Chicago &c. R. Co., 48 Minn. 378; s. c. 15 L. R. A. 399.

203 Buckley v. Old Colony R. Co., 161 Mass. 26; s. c. 36 N. E. Rep. 583.

204 Hendrick v. Chicago &c. R. Co., 136 Mo. 548; s. c. 38 S. W. Rep. 297.

205 St. Louis &c. R. Co. v. Beecher, 65 Ark. 64; s. c. 44 S. W. Rep. 715; 10 Am. & Eng. Rail. Cas. (N. S.) 557.

206 Gradert v. Chicago &c. R. Co., 109 Iowa 547; s. c. 80 N. W. Rep. 559. The fact that the passenger left the car to avoid an impending collision may be inferred from evidence to the effect that he ran out of the car and upon a flat car in front of it, just as the collision occurred: Gradert v. Chicago &c. R. Co., supra.

fords a passenger reasonable time to alight after the train arrives at the station which is his destination, and after the station is announced, and the passenger negligently or willfully fails to get off, and is carried beyond the station, he becomes a trespasser, and the railway company ceases to owe him that high degree of care which it owes to passengers, but, in general, owes him no duty except to refrain from injuring him willfully or wantonly.207

210

§ 2666. Who Deemed Passengers on Freight Trains.208-It is a sound conclusion that where a person, seeking a passage, is directed by an agent of the railway company, whose duty it is to give directions to persons seeking to take passage on the train, he becomes. a passenger, notwithstanding a rule of the company, unknown to him, forbidding passengers from riding upon that train.209 More than this, it has been held that where the holder of a railway passage ticket boards a freight train, supposing the ticket to be good upon such train, he is to be treated as a passenger, although the freight train does not in fact carry passengers." We shall see, when dealing with the subject of trespassers on the vehicles of carriers as distinguished from passengers, that, in the opinion of many courts, the fact that a person is permitted to ride on a train by the conductor or other persons having the authority to exclude persons from the train, entitles him to the protection of a passenger while so doing.211 But with regard to freight trains which, prima facie, do not carry passengers, the rule established by the weight of authority seems to be that persons who travel on such trains, knowing that in so doing they are violating the rules of the company, are not entitled to the rights or to the measure of care due to passengers, although they may be riding with the permission of the conductor or other employés of the company,212-unless the company has managed its business in.

207 Houston &c. R. Co. v. Cohn, 22 Tex. Civ. App. 11; s. c. 53 S. W. Rep. 698.

208 This section is cited in §§ 2634, 2815, 3154, 3304.

** McGee v. Missouri &c. R. Co., 92 Mo. 208; s. c. 4 S. W. Rep. 739; 10 West. Rep. 282.

210 Boggess v. Chesapeake &c. R. Co., 37 W. Va. 297; s. c. 16 S. E. Rep. 525. In this case the plaintiff was required to jump from the train while it was going at a rate of speed dangerous for that purpose. The plaintiff supposed he had a right to ride on the train, and the ticket gave no notice to the contrary, but a rule of the company forbade conductors

of freight trains to take on passer-
gers. The court recognized the right
of the conductor to eject the holder
of the ticket, and, if necessary, by
force, but in the manner required
by law, and admitted that this
would be true even if he were a
trespasser. But the court said that he
was a passenger under the circum-
stances, and entitled to the rights
of a passenger while on the train.
211 Post, §§ 3321, 3322.

212 Woolsey v. Chicago &c. R. Co.. 39 Neb. 798; s. c. 25 L. R. A. 79; McVeety v. St. Paul &c. R. Co., 45 Minn. 268; s. c. 11 L. R. A. 174; McNamara v. Great Northern R. Co., 61 Minn. 296; Canadian &c. R. Co.

such a way as to lead the public to believe that passengers will be carried upon its freight trains for hire or otherwise.213 But it has been held that occasional or even frequent violations by trainmen of a rule of the railroad company forbidding the carriage of passengers on freight trains, do not charge the company with the liability of a carrier of passengers as to one so riding, where it has used reasonable efforts to suppress the violation of the rule and enforce obedience to it,214

§ 2667. Person Riding on Freight Train by the Mere Permission of the Conductor.-We shall discover, from an examination of the decisions collected in a future chapter,215 a difference of opinion among the courts on the question whether the invitation or permission of the conductor of a railway train, that a person shall ride upon the train, entitles such person to the protection which is due to a passenger. As elsewhere indicated, the writer is of the opinion that, it being the office of the conductor to determine on the spot who is and who is not entitled to the right to ride on his train, his invitation or permission, accepted and acted upon, makes the person a passenger, unless such person, knowing that the conductor has no right to give such invitation or such permission, connives with the conductor and acts in fraud of the rights of the company. In conformity with this view, it has been held that, in the absence of knowledge of a rule of the railroad company forbidding his riding on such train, a person riding on a freight train by permission of the conductor or engineer, is entitled to the protection of a passenger, although the officer was forbidden to receive passengers on such trains.216 The

freight train of the fare of a person coming on board for transportation does not make him a passenger, where the company has a rule forbidding passengers to ride on freight trains: St. Louis &c. R. Co. v. White (Tex. Civ. App.), 34 S. W. Rep. 1042 (no off. rep.); Gulf &c. R. Co. v. Campbell, 76 Tex. 174; s. c. 41 Am. & Eng. Rail. Cas. 100; 13 S. W. Rep. 19; Cleveland &c. R. Co. v. Best, 169 Ill. 301; s. c. 9 Am. & Eng. Rail. Cas. (N. S.) 660; 48 N. E. Rep. 684; rev'g 68 Ill. App. 532; s. c. 29 Chicago Leg. News 189; 2 Chic. L. J. Wkly. 111. But these decisions are

v. Johnson, Montreal L. Rep. 6 Q. B. 213; Powers v. Boston &c. R. Co., 153 Mass. 188; Arkansas &c. R. Co. v. Griffith, 63 Ark. 491; s. c. 39 S. W. Rep. 550; Texas &c. R. Co. v. Hayden, 6 Tex. Civ. App. 745; s. c. 26 S. W. Rep. 331; Louisville &c. R. Co. v. Hailey, 94 Tenn. 383; s. c. 27 L. R. A. 549; 29 S. W. Rep. 367; St. Louis &c. R. Co. v. White (Tex. Civ. App.), 34 S. W. Rep. 1042 (no off. rep.); following Texas &c. R. Co. v. Black, 87 Tex. 160; s. c. 27 S. W. Rep. 118. 213 Arkansas &c. R. Co. v. Griffith, 63 Ark. 491; s. c. 39 S. W. Rep. 550. Antonio &c. R. Co. V. Lynch, 8 Tex. Civ. App. 513; s. c. 28 obviously unsound and worthless. S. W. Rep. 252.

214 San

215 Post, §§ 3320, 3321, 3322.

216 Hanson v. Mansfield &c. R. Co., 38 La. An. 111. It has been held that the acceptance by conductor of a

Contrary to this, it has been held that one who boards a freight train with consent of conductor, and pays his fare to him, has a right to assume that the train is a local one

Supreme Court of Texas have held that where the conductor of a freight train tells a person before he gets on, that he is not authorized or permitted to carry passengers, and still such person enters the car, with or without the knowledge and consent of the conductor, but with the consent of some train official, presumably a brakeman, he is not a lawful passenger, and can not recover against the railroad company for an injury sustained while riding on the train, there being no evidence of gross negligence on the part of the company.217 It is not perceived why the company should be exonerated from liability in the absence of gross negligence, unless this expression is understood as being synonymous with willful or wanton negligence. There is really no such thing as gross negligence;218 and what is sometimes called gross negligence is not equivalent to willful or wanton negligence.219

within

Sands & H. Ark. Dig., § 6284, providing that local freight trains shall carry passengers: Arkansas &c. R. Co. v. Griffith, 62 Ark. 491; s. c. 39 S. W. Rep. 550.

217 Gulf &c. R. Co. v. Campbell, 76 Tex. 174; s. c. 41 Am. & Eng. Rail. Cas. 100; 13 S. W. Rep. 19. The theory of the Texas courts seems to be that the conductor of a freight train can not dispense with a regulation of the company prohibiting passengers from riding on such trains, so as to render the company liable to one who is injured while so riding, in the absence of gross negligence: Gulf &c. R. Co. V. Campbell, 76 Tex. 174; s. c. 41 Am. & Eng. Rail. Cas. 100; 13 S. W. Rep. 19. The propriety of this rule seems to depend entirely upon the question whether the person so riding knows of the regulation and of the want of power in the conductor to dispense with it. The conductor may be the only visible representative of the company with whom the person so taking passage comes in contact. In the absence of a scienter, he is manifestly entitled to rely upon the representations of the conductor in this particular, and the company ought to be estopped by his representations. But the rule manifestly ought to be, and is, different, where, knowing of the regulation and the want of authority in the conductor to relax it, he takes passage by collusion with the conductor, and in fraud of the rights of the company. Hence, it has been held that one riding on a freight

train free of charge, at the mere in-
vitation of the conductor, who has
no authority to invite persons to
ride, is not a passenger nor one
towards whom the company owes
any legal obligation: Stalcup v.
Louisville &c. R. Co., 16 Ind. App.
584; s. c. 45 N. E. Rep. 802.
218 Vol. I, § 19.

219

19 Vol. I, § 20. Where an agent of a railway company, such as a conductor of a freight train, permits a person to ride upon a freight train, which is forbidden by the rules of the company to carry passengers, nevertheless if the person acts in good faith, he will be held entitled to the rights of a passenger, and can recover for an injury caused by a freight car being negligently driven by a switch engine against the caboose in which he is riding: Everett v. Oregon &c. R. Co., 9 Utah 340; s. c. 34 Pac. Rep. 289. Another court has held that the permission, granted by the conductor of a freight train, who has entire charge of it, and who is, so to speak, the master of the train, to a person to ride upon such train, is to be regarded as within the scope of the authority of the conductor, although he is forbidden to carry passengers on that train, and although the person so permitted to ride is not required to pay fare,with the conclusion that, although the person is not a trespasser on the train of the company, nor yet a passenger, he is rightfully on such train, and may recover damages from the company for an injury re

§ 2668. Person Riding on Freight Train by Invitation of Inferior Train Servants.-But whatever may be the rule with reference to persons who ride upon freight trains by the invitation or consent of the conductor, who is the master of the train,-it is clear that a brakeman employed upon such a train, which is in charge of a conductor, has no implied authority to bind the company by a contract of passage, and his permission to a person to ride does not make such person a passenger. 220 In like manner, the engineer of a train, whether it be a passenger train221 or a freight train,222-has presumptively no power to create the relation of carrier and passenger between the company and a third person, by permitting such person to ride upon the train. 223 Still less can such an authority be implied in case of a fireman.224 But it has been held-with doubtful pro

ceived while so riding, resulting from a lack of ordinary care on the part of the employés of the company: Whitehead v. St. Louis &c. R. Co., 99 Mo. 263; s. c. 11 S. W. Rep. 751.

220 Candiff v. Louisville &c. R. Co., 42 La. An. 477; s. c. 7 South. Rep. 601; Janny v. Great Northern R. Co., 63 Minn. 380; s. c. 65 N. W. Rep. 450. But it does not follow from this that, because the person is a trespasser and not a passenger, the railway company may not be liable for the misconduct of a brakeman in compelling him to get off the train while it is in motion,-as was held by a Texas court: Galaviz v. International &c. R. Co., 15 Tex. Civ. App. 61; s. c. 38 S. W. Rep. 234 (holding that, as the brakeman had no authority to eject him, the company was not liable). A trespasser can not be thus wantonly injured: Post, $$ 3302, 3307. It is quite clear, therefore, that a person who, on the invitation of the brakeman of a freight train having no authority to receive passengers or collect fares, takes passage in a freight car loaded with grain, paying less than the regular fare, is not a passenger, and can not recover from the company for a robbery and assault committed on him while in such car: v. Great Northern R. Co., 63 Minn. 380; s. c. 65 N. W. Rep. 450.

Janny

221 Ohio &c. R. Co. v. Allender, 59

Ill. App. 620.

222 Chicago &c. R. Co. v. Casey, 9 Ill. App. 632.

223 An engineer gave to a boy, thir

teen years old, permission to ride upon a freight train. It was held that the company was not liable for an injury sustained by the boy, as the engineer's permission was not within the scope of his authority: Chicago &c. R. Co. v. Casey, 9 Ill. App. 632.

224 It follows that a person riding on the locomotive of a freight train without the conductor's knowledge or consent, by agreement with the fireman to shovel coal for the privilege of riding, is not a passenger: Woolsey v. Chicago &c. R. Co., 39 Neb. 798; s. c. 25 L. R. A. 79; 58 N. W. Rep. 444. In like manner, one who made an unauthorized arrangement with the crew of a railroad train to work his passage on the train, and who was assaulted and robbed and dashed off the car by the crew, had no right of action against the company: Alabama &c. R. Co. v. McAfee, 71 Miss. 70; s. c. 14 South. Rep. 260. So, a recovery was denied against a railroad company for injuries sustained by plaintiff while assisting the brakeman in switching cars, where he was permitted by the conductor and brakeman to ride on a freight train on condition of assisting them during the trip, where they had no authority to employ assistants, and no emergency was shown for his employment, and there was no custom or rule permitting him to ride in consideration of the assistance rendered: Cooper v. Lake Erie &c. R. Co., 136 Ind. 366; s. c. 36 N. E. Rep. 272.