199

§ 2960. Exception where Rule against so Riding is Habitually Disregarded.-2. Where, although there may be a regulation of the company prohibiting passengers from so riding, yet such regulation has been relaxed by custom, that is to say, habitually disregarded.1 It has accordingly been held that a passenger on a railroad train, who, in ignorance of a rule requiring the employés on a train to prevent passengers from riding in baggage cars, goes into and is allowed to ride in a baggage compartment of a combination car upon finding himself unable to obtain a seat in the smoking compartment of such car, and who has frequently been permitted to ride in the baggage compartment, is not guilty of negligence, even though his presence there contributes to injuries received in a collision which occurs.

200

§ 2961. Exception where he is so Permitted to Ride by the Conductor or Baggage Master.-3. Where, although there may be a rule of the company, known to the passenger, prohibiting the passenger from so riding, yet the passenger is permitted so to ride, by the conductor and baggageman, without objection. Under such circumstances, the passenger does not forfeit his rights as a passenger, but the carrier is still under the obligation to exercise the highest care for his safety.201 The conductor is deemed to be vested with a discretion, in the discharge of his duties, to the end of relaxing such rule, and the company, and not the passenger, is held responsible for his exercise of it.202 On the contrary, it is reasoned in a modern decision that, although a carrier may abandon its rule prohibiting pas

72 Md. 36; s. c. 6 L. R. A. 706; 41 Am. & Eng. Rail. Cas. 126; 18 Atl. Rep. 1107.

199 Jones v. Chicago &c. R. Co., 43 Minn. 279; s. c. 44 N. W. Rep. 444.

200 New York &c. R. Co. v. Ball, 53 N. J. L. 283; s. c. 21 Atl. Rep. 1052.

201 Jacobus v. St. Paul &c. R. Co., 20 Minn. 125; s. c. 1 Cent. L. J. 375. See, also, Lehigh Valley R. Co. v. Greiner, 113 Pa. St. 600; s. c. 4 Cent. Rep. 898; and compare Pennsylvania R. Co. v. Langdon, 92 Pa. St. 21; s. c. 37 Am. Rep. 651.

202 O'Donnell v. Allegheny &c. R. Co., 59 Pa. St. 239; Watson v. Northern R. Co., 24 Upper Canada Q. B. 98; Carroll v. New York &c. R. Co., 1 Duer (N. Y.) 571. The language of Bosworth, J., in an important case, on this subject, fully explains the relations of passenger and carrier in cases of this kind: "He took

a seat in the postoffice apartment of the baggage car. The position was injudiciously chosen, and may be assumed to have been known to him to have been a far more dangerous one than a seat in a passenger car. But he took it with the assent of the conductor. He was not there as a trespasser, or wrongfully, as between him and the defendants. So far as all questions involved in the decision of this action are concerned, he was lawfully there. His being there was not such negligence, in the legal sense of the term, as exonerates the defendants from the consequences of injuring him by such culpable negligence as consists in running two trains of their cars so violently into each other as to entirely demolish the car in which he was sitting:" Carroll v. New York &c. R. Co., 1 Duer (N. Y.) 571.

sengers to ride in an express car, yet the mere delinquency of the conductor in enforcing the rule is not sufficient to constitute an abandonment, in the absence of such conduct as in effect establishes the concurrence of the carrier in the disregard of the regulation;203 so that if a passenger rides in an express car in violation of a known rule of the carrier, even with the permission, connivance or knowledge, of the conductor of the train, and is there injured through the negligence of the carrier, he can not recover, if he would not have been injured had he remained in the passenger car as required by the rules.204 These considerations seem to justify the view that where a passenger voluntarily and without necessity, and in violation of a known rule of the company, leaves his proper place in a passenger car to ride in the baggage car, and there receives an injury, which he probably would not have received had he remained in his proper place, he can not recover damages from the company.205

§ 2962. Effect of the Consent, Acquiescence or Invitation of the Servants of the Company.-Nor does the consent or passive acquiescence of the carrier, through its proper servant, relieve the passenger from the imputation of contributory negligence, where he takes a position on the train of such obvious danger,-as, for example, on the top of the car, or on the cowcatcher, or on the pilot of the engine, that no man of ordinary prudence would attempt to ride there, so as to give him any greater rights against the company on account of an injury received by him while so riding, than if the servants of the company had been wholly ignorant of the fact of his having taken such an exposed position.206 But this does not apply to the mere act of riding in an unusual place on the railroad train, with the consent or by the direction of the conductor, who is master of the train; as, for example, in the locomotive cab.206a

203 Florida &c. R. Co. v. Hirst. 30 Fla. 1; s. c. 16 L. R. A. 631; 12 Rail. & Corp. L. J. 218; 52 Am. & Eng. Rail. Cas. 409; 11 South. Rep. 506.

113 Pa. St. 600; s. c. 4 Cent. Rep. 898.

206 Downey v. Chesapeake &c. R. Co.. 28 W. Va. 732.

204 Florida &c. R. Co. V. Hirst, supra. See, also, in confirmation of the text, Pennsylvania &c. R. Co. v. Langdon, 92 Pa. St. 21; s. c. 37 Am. Rep. 651; Houston &c. R. Co. v. Clemmons, 55 Tex. 88; s. c. 40 Am. Rep. 799; Hickey v. Boston &c. R. Co., 14 Allen (Mass.) 429; Ohio &c. R. Co. v. Allender, 47 Ill. App. 484. 205 Lehigh Valley R. Co. v. Greiner, &c. Co., 38 La. An. 111.

206a Hanson v. Mansfield R. &c. Co., 38 La. An. 111; Chicago &c. R. Co. v. Doherty, 53 Ill. App. 282 (where the passenger rode in the locomotive cab at the invitation of the engineer, who was in sole charge of the train,-this not being negligence per se). Or on the platform of a car: Hanson v. Mansfield R.

cars.

207

In the dis

§ 2963. Contributory Negligence of Stockmen.-Shippers of stock on cattle trains, who accompany their stock for the purpose of caring for them en route, travelling on a pass granted by the railroad company, which is generally known as a drover's pass, are, as we have seen, passengers for hire, and are entitled, regard being had to the difference between a cattle train and a passenger train, to the exercise on the part of the carrier of the same high degree of care for their protection as the law demands of him in favor of ordinary passengers. The position of a shipper of stock is at its best far more dangerous than that of an ordinary passenger on a passenger train. charge of his duty of taking care of his animals, he is obliged to move about constantly, even while the train is in motion. This may require him to pass from one car to another, along the tops of the Nevertheless, most railway companies which ship cattle make it a condition in the drover's pass which they grant to the person in charge of the cattle, that while the train is in motion, he will remain in the caboose. For a drover to violate this stipulation by voluntarily standing or walking upon the top of a moving car, is contributory negligence, which will preclude a recovery of damages in case he is killed or injured in consequence of so doing. 208 With such a provision in his contract of passage, a shipper of stock who goes into a freight car to water his stock by the direction of the conductor, ist guilty of contributory negligence which will prevent him from recovering damages for injuries received by being thrown from the car, if he remains there longer than is necessary properly to care for the stock; but not if, without his fault, he is not allowed a reasonable time to give the stock proper care, and has no notice that the train is about to start.209 So, a shipper of the movables of immigrants, including a span of horses, who, notwithstanding the objection of the conductor, and in violation of the contract upon which he is riding, which requires him to ride in the caboose when the train. is in motion, rides in the car with his property, and by reason of so riding sustains a fatal injury, is precluded from recovering damages by reason of his contributory negligence, in the absence of gross negligence on the part of the company.210 Where a drover, entitled to

207 Ante, § 2648.

208 Ft. Scott &c. R. Co. v. Sparks, 55 Kan. 288; s. c. 39 Pac. Rep. 1032. 200 Illinois &c. R. Co. v. Beebe, 69 Ill. App. 363; s. c. aff'd 174 Ill. 13; s. c. 43 L. R. A. 210.

210 Heumphreus v. Fremont &c. R. Co., 8 S. D. 103; s. c. 2 Am. & Eng. Rail. Cas. (N. S.) 546; 65 N. W. Rep.

466. The exception in the case of gross negligence on the part of the company is unjuridical, or at least out of line with most of the American doctrine, unless by the phrase is meant wantonness, or an intention to inflict injury: See Vol. I, § 1920.

ride in the caboose of a freight train, was some distance ahead of it when the train started, and attempted to reach it by clambering upon one of the forward cars, in the nighttime, one hand being incumbered with a lantern and prod-pole, and, while so attempting, fell and was run over, it was held that he was guilty of contributory negli gence.211 It has even been held that while a drover, riding on the usual drover's pass, is deemed to be a passenger for hire, he can not recover damages for an injury sustained through the negligence of the railroad company by reason of his being on the top of a cattle car, although he was instructed by the station agent to ride there, instead of riding in the caboose,-the theory of the court being that the station agent had no authority in the premises, and the conductor of the train being ignorant that he was riding in that position.212

213

§ 2964. Riding in Caboose Car of Freight Train.-Whether contributory negligence will be imputable to one from the fact of his riding in the caboose car of a freight train will, of course, depend upon the question whether the railway company provides that place for the accommodation of the passengers, or allows them to ride in it. It has been held that contributory negligence is not imputable because of the mere fact of entering the caboose car of a freight train, which is not allowed to carry passengers, unless the person so entering remains after being admonished of the danger of so riding, or after otherwise becoming aware that his position is dangerous. But upon a mixed train, where passengers are permitted to occupy the caboose as a smoking car, a passenger so riding is not precluded from recovering damages for injuries by the mere fact that he was riding there.214 Nor is a woman so riding guilty of contributory negligence as matter of law, in leaving her seat to get a drink for her child, so as to preclude her from recovering damages for injuries. received in consequence of the sudden stopping of the train.215 Many cases are found which impute contributory negligence to passengers riding in the caboose of freight trains, who, in consequence of negli gently leaving their seats and standing up, or otherwise taking dangerous positions, or attitudes, are thrown down by the sudden jerking, jarring and lurching which are so common in the movement of freight

211 McCorkle v. Chicago &c. R. Co., 61 Iowa 555.

212 Little Rock &c. R. Co. v. Miles, 40 Ark. 298.

213 Everett v. Oregon &c. R. Co., 9 Utah 340; s. c. 34 Pac. Rep. 289.

214 Ephland v. Missouri &c. R. Co., 57 Mo. App. 147.

215 Indiana &c. R. Co. v. Masterson, 16 Ind. App. 323; s. c. 44 N. E. Rep. 1004.

trains.2 216 It was so held where a passenger was riding in this way, while standing up instead of keeping his seat.217 In the case where a passenger so riding is injured by being thrown down by a sudden jerk of the car, overturning a chair in which he is sitting, it has been reasoned that, although the caboose is supplied with stationary seats around its sides, yet if the passenger sees a chair therein, he is not imputable with negligence in drawing the inference that it was placed there to be used as a seat, and that it may be safely so used.218 On the other hand, where the passenger rides on the seat, and is thrown down and injured by a sudden jerking of the train, the fact that none of the other passengers are so injured, is deemed some evidence to show contributory negligence on the part of the one who was injured.219

§ 2965. Riding on the Top of Cars.220-The top of a car, whether it be a freight or a passenger car, is a position of such obvious danger that if a passenger presumes to ride in that position and is injured, and under such circumstances that he would not have been injured if he had been riding inside a car of the train, he is plainly guilty of contributory negligence. The fact that a railway car is so crowded that there is no room on the inside, does not, it has been held, authorize a passenger to go on top of the car, if that place has not been allotted by the company for the use of passengers, although the conductor may have consented thereto.2 221 Even stockmen or drovers in charge of cattle or horses on the train, who may have occasion in the discharge of their duties, to pass from one portion of the train to another, are generally adjudged guilty of contributory negligence where they pass back and forth on the top of the cars while the train is in motion.222 But it has been held that the fact that a passenger moves about on the

216 Moore v. Saginaw &c. R. Co., 115 Mich. 103; s. c. 72 N. W. Rep. 1112; 4 Det. L. N. 781; Felton v. Horner, 97 Tenn. 579; s. c. 37 S. W. Rep. 696 (old woman left her seat and stood up, knowing or under the duty of knowing that the train had been stopped to do switching, and was thrown down by a jerk not more violent than usual or necessary); Atchison &c. R. Co. v. Johnson, 3 Okla. 41; s. c. 41 Pac. Rep. 641 (passenger on a freight train, instead of riding in the caboose, voluntarily placed himself in a box car and was thrown from the train while stand

ing in the door by the jerking of the train and injured).

217 Harris v. Hannibal &c. R. Co., 89 Mo. 233.

218 Quackenbush v. Chicago &c. R. Co., 73 Iowa 458; s. c. 35 N. W. Rep. 523.

219 Wallace v. Western R. Co., 98 N. C. 494; s. c. 2 Am. St. Rep. 346; 4 S. E. Rep. 503.

220 This section is cited in § 2913. 221 St. Louis &c. R. Co. v. Rice, 9 Tex. Civ. App. 509; s. c. 29 S. W. Rep. 525.

222

Ante, § 2913; post, § 2966.