priety, the author thinks-that an invitation of the motorman of an electric car, in sole charge of the car, extended to a boy, to ride on the car, is an act within the scope of his employment; so that if the boy accepts the invitation innocently, he does not become a trespasser, but it becomes the duty of the company, through its servants, to extend to him the care due to passengers of his age and discretion.225 § 2669. Who not Deemed such a Passenger.-If, on the other hand, a person boards a freight train, having no right to take passage thereon, but being a mere trespasser, he can not, by that unlawful act, create, as between the railway company and himself, the relation of carrier and passenger; so that, if he is injured by a servant of the company, the liability or exoneration of the company will be referable merely to the law of agency.226 § 2670. Idlers and Spectators upon the Carrier's Premises.— While the carrier is bound, as we shall hereafter see,2 227 to keep his stations, platforms, gang planks, and means of ingress and egress to and from his vehicles of transportation, reasonably safe; and while the exact degree of care and diligence which the law puts upon him in his relation of carrier extends to the safety of these means of ingress and egress;-yet no such severe rule of diligence rests upon him in favor of mere idlers and spectators, who go upon his premises for some other purpose than that of taking carriage on his vehicles or assisting others who come to take such carriage. One court has held that a person who goes to a railroad station and on the 225 Little Rock Traction &c. Co. v. Nelson, 66 Ark. 494; s. c. 52 S. W. Rep. 7. The fact that there is a statute providing that no minor child, not being a passenger, shall be allowed upon the platform or steps of any street car, etc., does not prevent the maintaining of an action against the owner of a wagon which runs into a street car, injuring a boy so riding, who has got upon the platform by the invitation of the conductor, to receive a penny for turning a switch: Connolly v. Knickerbocker Ice Co., 114 N. Y. 104; s. c. 22 N. Y. St. Rep. 675. A person who enters the caboose of a freight train, with the intention of taking passage thereon in accordance with a notorious custom on the part of the company to permit passengers to ride on such train, which had existed for more than a year, must be treated as a regular passen ger and given all the rights belonging to such, notwithstanding a rule of the company, known only to its servants, that passengers will not be received on that train, if he is not informed of such rule prior to the time the train starts: Burke v. Missouri &c. R. Co., 51 Mo. App. 491. Constitutionality and construction of Ohio statute (Ohio Rev. Stat., § 3375a) authorizing sheriffs, when in the performance of their official duties, to ride upon freight trains: Allen v. Lake Shore &c. R. Co., 57 Ohio St. 79; s. c. 47 N. E. Rep. 1037; 38 Ohio L. J. 245; 9 Am. & Eng. Rail. Cas. (N. S.) 25; s. c. in court below, sub nom. Lake Shore &c. R. Co. v. Allen, 2 Ohio Dec. 666. 226 Farber v. Missouri &c. R. Co., 116 Mo. 81; s. c. 20 L. R. A. 350; 22 S. W. Rep. 631. 227 Post, § 2678. platform, as a mere spectator for his own pleasure and convenience, is there at his own risk and peril, and can not recover for injuries received in consequence of a defect in the platform, unless there was gross and wanton negligence on the company's part equivalent to intentional mischief.228 So, in a case where a depot platform gave way on account of a great crowd which had assembled to hear the President of the United States speak, and many persons were thereby injured and some killed, the court said: "Had it been the hour for the arrival or departure of a train, and he [the plaintiff] had gone there to welcome a coming or speed a parting guest, it might very well be contended that he was there by the authority of defendants, as much as if he was actually a passenger, and it would then matter not how unusual might have been the crowd, the defendants would have been responsible. As to all such persons to whom they stood in such a relation as required care on their part, they were bound to have the structure strong enough to bear all who could stand on it; as to all others, they were liable only for wanton or intentional injury. The plaintiff was on the spot merely to enjoy himself, to gratify his curiosity, or to give vent to his patriotic feelings. The defendants had nothing to do with that." 97229 § 2671. Person Riding in Improper Place on Carrier's Vehicle.Although the rights of a passenger who is injured through the negligence of the carrier or his servants while riding in an improper or forbidden place upon the carrier's vehicle are more properly referable to the subject of contributory negligence of the passenger, a subject separately considered,230-yet cases are sometimes met with which deal with it with reference to the question whether, by reason of such misconduct of the passenger, the relation of carrier and passenger is to be deemed to have been temporarily terminated. Clearly, the relation of carrier and passenger does not begin where a person goes upon a forbidden place upon the carrier's vehicle, as upon a car platform, and who, while there, pays his fare to a servant of the company not authorized to receive it, as where there is a conspicuous notice posted outside the door of the car that passengers are not allowed to ride on the platform while the cars are in motion, and the passenger so riding pays his fare not to the conductor, but to a brakeman.231 Nor does such relation begin where the holder 228 Burbank v. Illinois &c. R. Co., 42 La. An. 1156; s. c. 11 L. R. A. 720; 8 South. Rep. 580. 229 Gilis v. Pennsylvania R. Co., 59 Pa. St. 129, 143; s. c. 8 Am. L. Reg. (N. S.) 729. See, also, Keokuk 231 Chicago &c. R. Co. v. Field, 7 Ind. App. 172; s. c. 34 N. E. Rep. 406. 232 of a free pass over a railroad gets upon the platform of a baggage car next to the tender, when the train is in motion, after it has left the station, and tries to open the door of the baggage car, and is killed by a collision while he is thus on the platform of the car. Nor does the knowledge of the conductor that some one has boarded his train while in motion, in the manner just pointed out, amount to an acceptance of the person as a passenger, when the conductor does not know what his purpose is in taking that position.233 Nor is the relation of carrier and passenger established, so as to make the carrier liable to a person as for an injury to a passenger, who boards the front platform of an express car, the door of which is locked, upon the invitation of the engineer, who has no authority to invite passengers to board the train.23 On the other hand, it has 232 Illinois &c. R. Co. v. O'Keefe, 168 Ill. 115; s. c. 48 N. E. Rep. 294; rev'g s. c. 63 Ill. App. 102. 233 Illinois &c. R. Co. v. O'Keefe, supra. 234 Ohio &c. R. Co. v. Allender, 59 Ill. App. 620. As to the want of authority of an engineer to give such an invitation, see ante, § 2668; post, § 3321. A person was killed while stealing a ride on the brake underneath the defendant's passenger car. Two witnesses testified that, as the train pulled out of the station, they saw him under the car, and that a porter on the train stood on the steps and appeared to be watching him. The accident occurred before the train had gone three hundred and fifty feet from the station. It was held insufficient to show any liability for the injury sustained: Handley v. Missouri &c. R. Co., 61 Kan. 237; s. c. 59 Pac. Rep. 271. Contrary to the above text, and seemingly unsound, is a decision to the effect that a person having a railroad ticket entitling him to ride on a passenger car of a given train, is not, as matter of law, a trespasser where he gets on the platform of a combination baggage and passenger car, though he gets on the baggage end when it is slowly moving, with the intention of riding on the passenger part of the car, and passengers had previously ridden on such platform, and whenever seen by the baggage master were brought inside: Martin v. Southern R. Co., 51 S. C. 150; s. c. 28 S. E. Rep. 303; citing Missouri &c. R. Co. v. Williams (Tex. Civ. App.), 40 S. W. Rep. 350 (no off. rep.). Circumstances under which a person paid a brakeman a sum of money which was less than the proper fare, and was directed to ride on the foot-board of the engine, and, while climbing over the tender to get into the cab of the engine, at the invitation of the engineer, the engine gave a lurch forward, causing him to fall, and the question of his negligence was held to be a question for the jury,-see Claiborne v. Missouri &c. R. Co. (Tex. Civ. App.), 57 S. W. Rep. 336. That the engineer was bound to use ordinary care to avoid injury to the plaintiff, provided he knew of his perilous position, was the view on which the court proceeded under the above state of facts: Claiborne v. Missouri &c. R. Co. (Tex. Civ. App.), 57 S. W. Rep. 336. A railroad company was held not liable for an injury to a person who had been admitted into the baggage car of a passenger train by certain employés of the company, including the baggage master, caused by the act of the baggage master in compelling him to jump from the car while it was rapidly moving, after it has passed, without stopping, the station where the person was to get off. The trespasser had endeavored to get a pass and had failed. He nevertheless endeavored to make the transit through collusion with the baggage master and in fraud of the rights of the company. The decision proceeds on the ground that the wrong done him was the personal wrong of the baggage master, who was not acting within the scope of his au been held that where the relation has begun, it does not cease by reason of the fact that the passenger leaves his place on the car, at the request of the fireman of the engine, and goes upon the engine to rub the headlight, although such position is dangerous.235 A person employed by a street railway company, who had been directed. to go home on a street passenger car of the company after his day's work was done, because of the absence of the hand car by which the employés were usually taken home, was not deemed a trespasser because of the fact that he rode on the motor, instead of riding in the car because the latter was filled with passengers, although he was not required to pay fare. Although it may have been contributory negligence for him to ride on the motor, if those in charge of the motor and car, with the knowledge of his exposed situation, could have averted the injury which he received by the exercise of ordinary care, and failed to do so, the company became liable to him in damages. 236 § 2672. Persons Riding on Hand Cars.-Although the relation of carrier and passenger may not subsist as between a railway company and one who, without the payment of fare, is riding on so unusual a vehicle as a railway hand car,-yet if the person is lawfully upon the hand car by the invitation of a servant of the company having thority so as to bind the company: Yazoo &c. R. Co. v. Anderson. 77 Miss. 28; s. c. 14 Am. & Eng. Rail. Cas. 412; 25 South. Rep. 865. It is not to be inferred from anything in the preceding note that the fact of riding in a baggage car will, under all circumstances, amount to a renunciation of the right of the person to have the care for his safety exercised which is due to a passenger. It was so held in a case where a woman took passage in a baggage car under the stress of an emergency calling for her immediate transportation, where no passenger cars were provided for the train: Baltimore &c. R. Co. v. Swann, 81 Md. 400; s. c. 32 Atl. Rep. 175. 235 Brown v. Scarboro, 97 Ala. 316; s. c. 12 South, Rep. 289. There is a seemingly untenable holding to the effect that the mere fact that a person rode between stations on a platform of a baggage car of a train, next the tender, with intent to evade payment of his fare, does not deprive him of the right to become a passenger at a regular station, where no demand has been made for his fare, and no disturbance or breach of the peace has been committed by him, so as to relieve the railroad company from liability for his subsequent ejection without giving him an opportunity to pay his fare: Fordyce v. Beecher, 2 Tex. Civ. App. 29; s. c. 21 S. W. Rep. 179. It has been held that a shipper of a horse has a right to rely on the statement of the agent who made the contract of shipment, having the authority to do so, that a passenger ticket shown him after the execution of the contract entitled him to ride on the same car with the horse, as a waiver of a stipulation in the contract of shipment, that he must remain in the caboose car, and leave it at his own risk of personal injury: Missouri &c. R. Co. v. Cook, 8 Tex. Civ. App. 376; s. c. 27 S. W. Rep. 769. 236 Denver &c. Transit Co. V. Dwyer, 20 Colo. 132; s. c. 36 Pac. Rep. 1106; rev'g s. c. 3 Colo. App. 408; s. c. 33 Pac. Rep. 818. 237 authority to invite him so to ride, and, while so riding, is injured through the failure of the servants of the company to exercise in his behalf reasonable or ordinary care, he may clearly recover damages." One who rides on a railway hand car by the invitation or permission of the section foreman or "boss" of the company, is not a passenger unless it is shown that the company carries passengers in that way, and that he was accepted as a passenger; but he is at most a bare licensee and assumes the usual risks of that mode of travel, upon principles elsewhere discussed.238 One of these risks is the risk of an injury by the negligence of the employés of the company in the management of a train which runs into the hand car. If, therefore, he is injured in consequence of such negligence, he has no action against the company.239 But, in the view of one court, the railroad company is not thereby relieved from liability, if it injures him by its gross negligence in running a train at a high rate of speed out of its schedule time, without notice to the foreman in charge of the hand car, and without any signal or headlight on the locomotive,—the night being dark and a storm raging.240 In such a case it has been held that evidence that the train-master, who authorized plaintiff to ride on the car, was the representative of the company on that part of the road in respect to all matters connected with the use of the road, cars of all kinds, and the services of its employés,-is sufficient to justify a finding that the train-master had authority to use the hand car for transporting passengers.241 Where a person, injured while so riding, had been at divers times employed by the railway company as a detective in cases of property stolen from its cars, and was requested by its agent, duly authorized for that purpose, to go from. one station to another, to aid in ferreting out a theft of property at the latter station, and the means of conveyance furnished for such transit was a hand car,-it was held that he might recover damages for an injury received while riding thereon, caused either by the unfitness of that means of conveyance, or by the negligence of the servants of the company in running the same.242 company was under no duty of finding out the fact of his presence, and of taking any special precaution in his favor. He could not, by thus becoming an interloper upon one of its hand cars, put it under any special duty to him, except that of refraining from injuring him willfully or wantonly: Post, § 3302, et seq. 241 International &c. R. Co. V. Prince, 77 Tex. 560; s. c. 14 S. W. Rep. 171. 242 Pool v. Chicago &c. R. Co., 53 |