St. Louis & S. F. R. Co. v. Kitchen

speaking for the court, said: "It is true there was no express contract between the plaintiff and the railway company; but, as the railway company undertook to carry him, it was bound to use every reasonable precaution to carry him safely. He could recover, therefore, in tort, just as any passenger may, for a violation of this general duty. All the cases upon this and analogous questions are to that effect."

Mr. Hutchinson says on this subject that: "As a general rule every one not an employee, being carried with the express or implied consent of the carrier upon a public conveyance usually employed in the carriage of passengers, is presumed to be a passenger." 4 Hutchinson on Carriers, § 997.

In another place the same learned author says this (section 1018): "It seems that if the person who is injured by the negligence of the carrier's employees is lawfully upon its conveyance, even though he is not strictly a passenger, he will be entitled, in the absence of a contract on his part to the contrary, to the same care and diligence for his safety as when he is strictly a passenger."

Some reliance is placed, as to the degree of care, on the Oklahoma statute, which provides that "a carrier of persons without reward must use ordinary care and diligence for their safe carriage." No decision of the Oklahoma court construing that statute has been brought to our attention; but, manifestly, it could only refer to persons who are carried gratuitously, as on a free pass, and does not cover cases where persons are carried on contract, either express or implied, even though customary fare be not paid.

It is next insisted that the railroad company owed deceased no duty to fence its right of way, notwithstanding the requirement of the Oklahoma statute, and that neither owed a duty to keep the right of way clear of weeds and brush, and that these omissions cannot be considered as the proximate cause of the injury.

It has been decided, under similar statutes, that the requirement is supposed to have been intended for the protection of all persons upon railroad trains who are exposed to dangers of travel, and that the person injured, by reason of the omission to comply with the statute, was entitled to recover on account thereof. Railway Co. v. Humes, 115 U. S. 522, 6 Sup. Ct. 110, 29 L. Ed. 463.

[5] Error of the court is assigned in giving the following instructions over defendant's objection:

"(6) The law requires the defendant to exercise the highest degree of care practicable in the running of its trains both as to speed and the manner of running it with reference to the place the engine occupies in the train, and if the defendant in this case has failed to exercise that high degree of care, which is explained

St. Louis & S. F. R. Co. v. Kitchen

in these instructions, in the respect just mentioned, and this want of care caused or was one of the causes of the death of Kitchen, at a time when he was exercising ordinary care for his own safety, you should find for plaintiff."

"(11) It is for you to say, among other things, whether or not Kitchen was wanting in ordinary care for his own safety considering all the circumstances that surrounded him at the time. It is also for you to say whether or not the defendant is guilty of negligence in any of the respects assigned; that is, as to the fence, the keeping of the right of way cleared, and the manner of running the train as to speed and position of the engine in the train. These are to be determined by all of the facts and circumstances in the case."

Error is also assigned in refusal of the court to give the fifth instruction requested by defendant: "(5) It is charged that the train was negligently backed, in that it was backed too rapidly. I charge you that there is no evidence that would warrant you in concluding that the train was backed too rapidly. You will therefore not consider the rate of speed at which the train was moving as tending to prove negligence."

It is said that there is no evidence to show that it constituted negligence to back the train under the circumstances, and that for this reason the court erred in giving the instructions mentioned above and in refusing the one requested by defendant. It will be noted, however, that in the instructions given the court said nothing about the backing of the train, but submitted only the question as to the manner of running the train with reference to its speed and the position of the engine in the train. If we should hold that, under the evidence in this case, the question of the backing of the train was not one to be considered by the jury as an act of negligence, still there was no error in these instructions, because, under the evidence adduced, it became a question for the jury to consider the speed of the train, together with the position of the engine in the train, in determining whether or not there was negligence in the operation of the train.

The next question in the case, and one which has given the court most serious concern, is as to the contention that Kitchen was guilty of contributory negligence in riding on top of the train, and that the trial court should have so declared that as a matter of law. Defendant relies upon the case of Railway Co. v. Miles, supra, where, under a special finding of the jury that a shipper riding on a drover's pass was injured by reason of being on top of a car, this court held that he was guilty of contributory negligence which precluded a recovery of damages. from the railroad company. Judge Smith, in delivering the opinion in that case, said that: "A passenger who voluntarily and unnecessarily rides upon the engine or the tender, or upon

St. Louis & S. F. R. Co. v. Kitchen

the pilot or bumper of the locomotive, or upon the top of a car, or upon the platform, cannot be said to be in the exercise of that caution and discretion which the law requires of all persons who are of full age, of sound mind, and of ordinary intelligence." That was a case, however, where the shipper was riding on a train which carried him as passenger, where a place was provided for him to ride, and where he had, without authority from the conductor, deserted the place set apart for the carriage of passengers and had gone on top of the train.

[6] The facts of the present case are vastly different. Here the train was not carrying passengers and was not engaged on a regular run. It was going from place to place, picking up the railroad ties, first going backward and then forward. Those who were riding on the train had the right, to some extent, to consider the question of their own safety and to determine where the best place was for them to ride for their own safety and convenience. The foreman in charge of the train was on top of the car, and Kitchen went there with his consent, or at least, by his acquiescence, and the conductor was near them and acquiesced in their presence there. In the same case Judge Smith said this: "Another duty is to occupy a seat inside of the car provided for passengers when a seat is to be had. The conductor is charged with the administration of these rules, and doubtless if the passenger rides in an improper place, for example, in the baggage, express or postal car, or in a caboose attached to the train or on the platform, by the conductor's permission, or with his acquiescence, this would exempt the passenger from blame, and, in case of accident to him resulting from the company's negligence, he might recover damages."

The decision of the United States Circuit Court of Appeals for the Sixth Circuit in the case of Winters v. B. & O. Rv. Co., 177 Fed. 44, 100 C. C. A. 462, states the controlling principle here, where, under circumstances not dissimilar, it was held that the question should be submitted to the jury whether or not an injured party was guilty of negligence.

There are other alleged errors of the court pressed upon our attention; but, on consideration, we conclude that they are not well founded, and that they are not of sufficient importance to call for discussion here. Suffice it to say that the evidence is legally sufficient to sustain the finding of the jury upon the allegations of negligence which were submitted to the jury by the court in the instructions given. The instructions correctly submitted those questions to the jury and properly limited the consideration to the allegations of negligence which the evidence tended to sustain.

Finding no error in the record, the judgment is affirmed.

LUGNER V. MILWAUKEE ELECTRIC RY. & LIGHT CO.

(Supreme Court of Wisconsin, May 2, 1911.)

[131 N. W. Rep. 342.]

Carriers Carriage of Passengers-Existence of Relation—Evidence. Evidence held to justify a finding that one was a passenger on a street car at the time of his ejection.

Carriers Carriage of "Passenger"-Existence of Relation.*—One does not need to have paid his fare, or even to have entered a carrier's car, to become entitled to the rights of a passenger; but if he has entered the carrier's station with the good faith intent to take passage and ability to pay his fare, he becomes a passenger, and, if he has boarded a car prepared and willing to pay his fare in case he could not obtain a free ride, the fact that he asks for a free ride does not deprive him of his character as a passenger; it being the refusal to pay fare on proper demand or the entry upon a car, with intent not to pay, which has such effect.

Carriers Carriage of Passengers-Wrongful Conduct of Conductor-Assault in Ejecting Person on Car-Scope of Employment.† -It is the duty of the conductor of a street car to eject persons who refuse to pay fare, and if, in his endeavor to carry out such duty, he makes a wrongful assault upon a person, such course is within the

*For the authorities in this series on the subject of the existence of the relation of carrier and passenger as affected by failure to purchase ticket or pay fare, see last paragraph of foot-note of Thompson v. Nashville, etc., Ry. (Ala.), 34 R. R. R. 171, 57 Am. & Eng. R. Cas., N. S., 171.

For the authorities in this series on the question whether a person may be a passenger before he boards a train or street car, see last foot-note of Philadelphia, etc., R. Co. v. Crawford (Md.), 38 R. R. R. 14, 61 Am. & Eng. R. Cas., N. S., 14; last foot-note of Schuyler v. Southern Pac. Co. (Utah), 37 R. R. R. 521, 60 Am. & Eng. R. Cas., N. S., 521; first head-note of Texas Midland R. Co. v. Geraldon (Tex.), 37 R. R. R. 106, 60 Am. & Eng. R. Cas., N. S., 106; second head-note of Metcalf v. Yazoo, etc., R. Co. (Miss.), 36 R. R. R. 743, 59 Am. & Eng. R. Cas., N. S., 743.

For the authorities in this series on the question whether a master is liable for the malicious and willful torts of his servants, see foot-note of Berryman v. Pennsylvania R. Co. (Pa.), 38 R. R. R. 728, 61 Am. & Eng. R. Cas., N. S., 728; foot-note of Moore v. Atchison, etc., Ry. Co. (Okla.), 37 R. R. R. 776, 60 Am. & Eng. R. Cas., N. S., 776; first foot-note of Baltimore, etc., R. Co. v. Strube (Md.), 37 R. R. R. 319, 60 Am. & Eng. R. Cas., N. S., 319.

For the authorities in this series on the question what acts are, and are not, within the scope of employment of a railroad employee, see last foot-note of Alabama, etc., Ry. Co. v. Sampley (Ala.), 38 R. R. R. 528, 61 Am. & Eng. R. Cas., N. S., 528; first foot-note of Duvall . Seaboard A. L. Ry. (N. C.), 36 R. R. R. 532, 59 Am. & Eng. R. Cas., N. S., 532; last head-note of Heilig . Southern Ry. Co. (N. C.), 36 R. R. R. 501, 59 Am. & Eng. R. Cas.. N. S., 501; second headnote of Conchin v. El Paso, etc., R. Co. (Ariz.), 36 R. R. R. 192, 59 Am. & Eng. R. Cas., N. S., 192.

Lugner v. Milwaukee Electric Ry. & Light Co

scope of his employment, though not authorized by his master, for which the master is liable.

Carriers Carriage of Passengers-Ejection of Passengers-Liability. Where a street car conductor wrongfully ordered from the car a boy who was a passenger, kicking at him as he jumped off, and the boy ran around the rear of the car, whereupon the conductor thrust his head and shoulders out of the rear window, and the boy, thinking that the conductor was attempting to grab him, was so frightened that he jumped into the side of a car on the other track and was injured, the conductor's appearance at the window was simply the concluding act of his endeavor to prevent the boy from riding on the car, his conduct being one continuous wrongful action, rendering the carrier liable for the injuries, though he, in fact, made no motion to grab the boy from the rear window.

Appeal from Circuit Court, Milwaukee County; W. J. Turner, Judge.

Action by Harry Lugner, by his guardian, against the Milwaukee Electric Railway & Light Company. Judgment for plaintiff, and defendant appeals. Affirmed.

The defendant operates a street railway system in Milwaukee, and this action is brought by the plaintiff for personal injuries resulting, as is alleged, from an assault and improper ejection from one of the defendant's cars by the conductor, on the evening of January 10, 1908. The plaintiff, a boy 15 years and 4 months of age, had been skating with several boy companions on the evening in question at a park in the western part of the city, some distance from his home and returned homeward, reaching the corner of Clybourn and Thirty-Fifth streets at about 9:30 o'clock. The Clybourn Street line of the defendant's railways ends here, and a car had just arrived at the terminus and was standing on the north track, preparing to start eastward as the boys arrived at the corner. The plaintiff and one of his companions, named Guy Raymond, 14 years of age, started for the car as it was standing still, intending to get a free ride, if possible; the conductor had just opened the vestibule doors on the south side and swung the trolley around, and at this time was just about starting the car eastward. At this point the accounts of the transaction differ as to what followed.

The plaintiff testifies that Guy asked for a free ride to TwentySeventh street just before they got on the car; that the conductor said nothing in reply to the question, and they got on the rear platform and repeated their request, when the conductor was near the stove in the middle of the car, and that he turned and ran towards them, with his hands up above his head, and said, "Get off, or I will kick you off;" that they immediately started and jumped off, and as they were doing so the conductor, who was then on the back platform, kicked at them; that he and