SECTION SECTION 2983. Instances where the assuming of a dangerous position was negligence, but presented a question for the jury. § 2942. General Proposition.110-It is next proposed to consider a numerous class of cases where passengers have been injured while riding in improper and dangerous places or positions, or in an improper and dangerous manner, upon the vehicle of the carrier; which cases affirm the general proposition (subject to qualifications) that if an accident happens, and the passenger receives an injury in consequence of such misconduct or negligence on his part, which he would not have received if he had been riding in the proper place, position or manner,—he can not make his own fault the ground of recovering damages against the carrier. On the other hand, if the passenger is riding in his proper place in the vehicle of the carrier, and makes no exposure of his person to danger, but nevertheless is injured from some extraordinary cause attributed to the negligence of the carrier, such as the fall of a railway bridge,-no question of contributory negligence can arise.111 The general rule is that a passenger who, without the consent of the carrier, selects a place on the carrier's vehicle which is obviously not intended to be occupied by passengers, and, while occupying such place, receives an injury directly traceable to hazards peculiar to that position, can not recover damages of the carrier; for he is deemed in law to accept the risks peculiar to the position which he thus voluntarily assumes.112 But this act of mis 110 This section is cited in §§ 2671, dangerous position on the vehicle or 2923, 3104. 11 Louisville &c. R. Co. v. Snyder, 117 Ind. 435; s. c. 20 N. E. Rep. 284; 3 L. R. A. 434. 112 Carroll v. Interstate &c. Co., 107 Mo. 653; s. c. 17 S. W. Rep. 889; Willmot v. Corrigan &c. R. Co., 106 Mo. 535; s. c. 17 S. W. Rep. 490; Edgerton v. Baltimore &c. R. Co., 6 App. (D. C.) 516; s. c. 23 Wash. L. Rep. 369; Lehigh Valley R. Co. v. Greiner, 113 Pa. St. 600; s. c. 4 Cent. Rep. 898; Downey v. Chesapeake &c. R. Co., 28 W. Va. 732; Chicago &c. R. Co. v. Myers, 80 Fed. Rep. 361; s. c. 49 U. S. App. 279; 25 C. C. A. 486; Wilcox v. San Antonio &c. R. Co., 11 Tex. Civ. App. 487; s. c. 38 S. W. Rep. 379; Burr v. Pennsylvania R. Co., 64 N. J. L. 30; s. c. 44 Atl. Rep. 845. The case of Edgerton v. Baltimore &c. R. Co., 6 App. (D. C.) 516; s. c. 23 Wash. L. Rep. 369, was not the case of a passenger taking a train of the carrier, but that of a passenger standing on the edge of the station platform watching for an incoming train to slow up, in which position he was struck by a train coming in the other direction, at the rate of fifty miles an hour, which could have been seen for more than a mile. It was held that he could not recover, because he did not exercise ordinary care to protect himself from injury. It is scarcely necessary to add that where a passenger of his own volition and without invitation from some servant of the carrier, entitled to give him the invitation, and without other reasonable excuse, goes to a place on the carrier's train or other vehicle, where he has no right to go, and where the danger is obvious to a reasonably careful and prudent man, he can not excuse his own negligence and folly, and put the blame conduct or negligence on the part of the passenger clearly does not absolve the carrier from all duty in respect of his safety; but, under the operation of the doctrine of Davies v. Mann,118 the carrier will be liable to him in damages for an injury produced by his failure to exercise ordinary care to avoid injuring him after discovering his position of danger.114 The negligence of the passenger in this respect, as in other cases,115 will not bar a recovery of damages, unless it was the proximate cause of his injury. However negligent he may have been in placing himself in an improper position upon the carrier's vehicle, if his negligence did not contribute in any degree to the accident which befell him, but if that accident was the result of the negligence of the carrier, he may recover damages.116 § 2943. Riding upon the Engine.-There are certain portions of every carrier's vehicles which are so obviously dangerous for a passenger to occupy, and so plainly not designed for his reception, that the presence of the passenger there will constitute negligence as matter of law, and preclude him from claiming damages for injuries received while in such position. For instance, a locomotive engine attached to a railway train is obviously a place designed exclusively for the employés of the company in charge of it, so that a passenger who is injured in consequence of riding upon it, whether with or without the invitation of the conductor or engineer, or whether there be or be not a regulation forbidding the presence of passengers thereon, ought not to recover damages from the company, if, in an accident, he receives a hurt in consequence of riding in this dangerous position, which he would not have received if he had been riding in his proper place on the train. Therefore, a person who applied to the upon the carrier if he is injured in consequence of being in such an exposed place, on the ground that he supposed the place to be safe, and that other persons indulged in the same supposition: Chicago &c. R. Co. v. Myers, 80 Fed. Rep. 361; s. c. 49 U. S. App. 279; 25 C. C. A. 486. 113 Vol. I, §§ 234, 235. 114 Carrico v. West Virginia &c. R. Co., 35 W. Va. 389; s. c. 11 Rail. & Corp. L. J. 64; 14 S. E. Rep. 12. 21 N. E. Rep. 311; Brown v. Scarboro, 97 Ala. 316; s. c. 12 South. Rep. 289; Chicago &c. R. Co. V. Rielly, 40 Ill. App. 416; Downey v. Chesapeake &c. R. Co., 28 W. Va. 732; Hughes v. Detroit &c. R. Co., 78 Mich. 399; s. c. 44 N. W. Rep. 396; Wilcox v. San Antonio &c. R. Co., 11 Tex. Civ. App. 487; s. c. 38 S. W. Rep. 379 (riding on a switch engine. knowing that it is not used to carry passengers, and that he has no right to ride thereon). For instance, a passenger voluntarily got upon the tender of the engine to ride, and while in this position was killed by the engine breaking through a defective culvert. A caboose was attached to the train for passengers, and it appeared that if the deceased had been in it he would have engineer of a train for permission to ride upon his engine, and was informed that it was against the rules of the company to carry him in that place, but finally obtained the engineer's consent and rode there, paying no fare, and without the knowledge of the conductor, was held to be a wrongdoer, and unlawfully in such position, and was properly nonsuited in an action for damages received in consequence of the engine running upon an obstruction on the track.118 So also, a laborer in the employ of a railroad company on a construction train, being told by the person in charge of the train that they were behind time and must hurry, and to "jump on anywhere," climbed upon the pilot of the locomotive, and rode there until he was injured by a collision of the engine with cars standing upon the track. The train consisted of the locomotive, tender, and box car in which he ought to have ridden. He had previously been warned against riding on the pilot by the person who gave the order to jump on at this time. The Supreme Court of the United States held that riding in this position constituted negligence per se, and that neither the direction to "jump on anywhere," nor the knowledge of the engineer that he was riding in this position, in any manner justified his doing so. Swayne, J., said: "As well might he have obeyed a suggestion to ride on the cowcatcher, or put himself on the track before the advancing wheels of the locomotive."119 So, a messenger ordering freight cars who, for escaped injury. On these facts, he was held to have been clearly guilty of contributory negligence: Doggett v. Illinois &c. R. Co., 34 Iowa 284. 118 Robertson v. New York &c. R. Co., 22 Barb. (N. Y.) 91. See also Doggett v. Illinois &c. R. Co., 34 Iowa 284. Contra is the judgment of the Supreme Court of Indiana in an early case: Lawrenceburgh &c. R. Co. v. Montgomery, 7 Ind. 474. The plaintiff got upon a gravel train of the defendant, and was informed by the engineer having charge of the locomotive and train, of his orders to transport no passengers. However, he paid his fare to the engineer, who consented to his riding on the tender of the locomotive, but directed him not to go upon the cars. By a collision of trains the plaintiff was injured. It was held that although the plaintiff was acting at the time in disobedience of a proper order to secure his safety, it should also appear that the injury was occasioned by such disobedience. See Keith v. Pinkham, 43 Me. 501. 119 Railroad Co. v. Jones, 95 U. S. 439; s. c. 6 Cent. L. J. 45; Thomp. Carr. Pass., p. 248. Compare with this case a decision by the same learned justice (Indianapolis &c. R. Co. v. Horst, 93 U. S. 291; s. c. 15 Alb. L. J. 61), the facts of which were as follows: The plaintiff and other drovers, in charge of cattle upon a train, were directed by the conductor to get out of the caboose and get on top of the train, as the caboose was to be detached, stating that at some distance further up the road he would attach another. The train was at rest, and the plaintiff and others did as the conductor told them to do. By a violent jerking and backing of the train the plaintiff was thrown down between the ends of two cars. On these facts the court expressed itself as follows: "We have said that riding on the top of a freight car in the night involved peril. When commanded to go there, the plaintiff had no choice but to obey, or to leave his cattle to go forward without any one to accompany and take care of them. The command was his own convenience, gets on a locomotive, by invitation of the conductor, takes upon himself the risk of so doing, although he has previously done so, and has seen the local freight agent and a conductor ride on the locomotive.120 It has been held that where a railroad company is in the habit of carrying its shopmen to and from their work as a matter of accommodation, and without any agreement or compensation therefor, if its train is so crowded that one of the shopmen can not get a seat in the cars, that fact will not justify him in sitting on the pilot of the engine; and if he does improperly do so, it is his duty to leave the pilot and go down into the cars at his first opportunity.12 121 § 2944. To what Care a Passenger so Riding is Entitled Notwithstanding his own Fault.-Another class of cases assimilate the rights of a passenger or employé, when riding upon the locomotive, to those which have been accorded to a trespasser upon the vehicle of the carrier, by holding that he is precluded by his fault in assuming the improper position, from recovering damages, except such as are inflicted upon him by the wanton or intentional negligence or misconduct of the railroad company or its servants.122 But in dealing with the case of trespassers,' 123 we shall endeavor to show that the real meaning of this class of holdings is that the carrier will be held liable for any act of negligence or wantonness directed specially toward the trespasser and involving a careless or wanton disregard of his safety. The fact that a person, whether a passenger or a trespasser, assumes a dangerous and improper position upon the train or the engine, will not relieve the company from liability for an act of negligence special to him, and which, having reference to his ex wrong. To give him no warning was an aggravation of the wrong. He, however, rode safely to the switch, standing in one place. He had a right to assume that the posture and place would continue to be safe. He had no foreknowledge of the coming shock. The conductor knew it, but gave him no word of caution or notice. He was unaware of danger until the catastrophe was upon him. The behavior of the conductor was inexcusable. If there was fault on the part of the plaintiff, in what did it consist? We find nothing in the record which affords any warrant for such an imputation." A regulation by which a passenger with live stock on the freight train is required to remain on the cars which contain his stock is not so transgressed by his being in another part of the train, when it is at rest, by the direction of the conductor, as to make him a contrib utor to his own injury by that train being run into by another: Pennsylvania R. Co. v. McCloskey's Administrator, 23 Pa. St. 526. 120 Files v. Boston R. Co., 149 Mass. 204; s. c. 21 N. E. Rep. 311. 121 Downey v. Chesapeake &c. R. Co., 28 W. Va. 732. 122 Brown v. Scarboro, 97 Ala. 316; s. c. 12 South. Rep. 289: Chicago &c. R. Co. v. Doherty, 53 Ill. App. 282. Substantially to this effect is Hughes v. Detroit &c. R. Co., 78 Mich. 399; s. c. 44 N. W. Rep. 396. 123 Post, $3307. posed position, known to its servants, constitutes as to him the failure to exercise ordinary care, or a wanton or malicious act.124 Seemingly in this line of thought, one case is found which holds that where a stockman, by the invitation and direction of the carrier's servants, gets upon the footboard of an engine, the carrier's servants are bound to exercise a degree of care corresponding to the degree of danger to which they expose him.125 But this necessarily proceeds on the premise that the duties of the stockman, in relation to the locomotive, were such that the carrier's servants in charge of the locomotive might lawfully invite him to ride upon it. Otherwise their invitation could not be regarded as the invitation of the carrier, and he would not be chargeable, under the rule of respondeat superior, for their want of care in not paying special attention to his safety, any more than in case of his being a mere stranger or trespasser.126 124 Thus, where a boy got upon the footboard of an engine which was moving very slowly, and could have got off in safety, but for the act of the engineer in throwing a chunk of coal at him and knocking him from the footboard, neither his contributory negligence nor his trespass operated to prevent a recovery of damages: Chicago &c. R. Co. v. Doherty, 53 Ill. App. 282. 125 Lake Shore &c. R. Co. v. Brown, 123 III. 162; s. c. 14 N. E. Rep. 197. 126 In a case in the United States Circuit Court for the Eastern District of Virginia, it appeared that a small lame boy, eight years of age, who had been suffered to run upon the streets, got stealthily upon the fore part of a locomotive, as it was moving slowly through the streets of the city of Norfolk, pushing from the rear a train of cars. There was a lookout on the forward car, and one on the rear car, and the engineer and fireman were on the locomotive. The engineer was looking out on one side of the engine, and the fireman on the other. The boy got upon the locomotive on the side on which the fireman was looking out. The fireman, seeing the boy's danger, cried to him to hold on, and immediately notified the engineer of the situation. The engineer, according to the rule, stopped and reversed his engine. This caused a slacking of the cars and a jerk. The boy. either intentionally or by force of the jar. let go his hold, and leaped down, but, on account of his lameness, was caught by the machinery of the cylinder and dragged down |