Fortune, the engineer, and Reynolds, the fireman. Payne at once opened the throttle-valve, and started the engine forward towards Rocky Mount. It was then between 7 and 8 o'clock, very dark, and raining. As the conductor started the engine, he handed a newspaper to the engineer, calling his attention to a paragraph of a few lines about a negro mason in Texas which amused him. The engineer read it, handed it back to the, conductor and then took charge of the engine. A mile and a half beyond Sandy Level the engine and the whole train, consisting of a box or freight car, and a passenger car, ran off the track, the engine and tender on one side, and the rest of the train on the other, and all on board the engine were more or less hurt. Roach, the plaintiff, was scalded on his body and face by hot water from the engine. He was attended by a physician 10 days, and was confined to his room for a month. He paid a doctor's bill of twenty-four dollars, which the company refused to pay for him. There was a conflict of opinion as to the speed at which the train was going. The witnesses for the plaintiff thought it faster than usual, and the only two passengers on the train testified that the motion of the train alarmed them, and they moved their seats away from the stove for fear of an accident. No one except those on the engine was hurt by the accident. The rules of the company prohibit any one but the engineer and certain employees from riding on the engine. They also require every employee to learn them. Roach, the plaintiff, had theretofore served as fireman for four or five months, though for several weeks he had not been in the service of the company, and testified that he was not aware of any such rule when he got on the engine. He did not pay any fare for his ride.

Plaintiff & trespasser on the train.

Now, if we treat the certificate in this case as it really is,as a certificate of evidence, although it purports to be a certificate of facts, and under the long and well-settled rule of this court can consider only the evidence introduced by the party who prevailed below, it must be conceded that there is evidence of such negligence as would make the company clearly liable in damages to any passenger on the train. But Roach was not a passenger, but a mere trespasser or intruder, because he was not lawfully on the train. It is true, he says that he was invited to ride by the engineer, but no one knew, or, what is the same thing, ought to have known, better than he that neither the engineer nor conductor, nor both, could give him the right to ride upon the engine. He was not only a fireman, but had been an employee of this very road for months, and must be charged with knowledge of what he would have

learned if he had discharged his duty, and read the printed regulations which had been furnished, namely, that neither the engineer nor conductor had authority to invite him to ride in such an exposed position. The conductor, of course, had control of the train, and the right to assign passengers seats; but this, as has been well said, would not authorize him to assign him a seat upon the cow-catcher. On the contrary, his duty to his company requires him to see that its passengers are safely seated, and that all persons not entitled to be carried should be excluded from the train; and it is therefore clear that Roach could not derive any authority to ride from him. But if we look at the evidence of the defendant in error himself it will distinctly appear that the claim of Roach that he was riding at the invitation of the conductor was plainly an after-thought, for he had twice gotten upon the engine, at the invitation of the engineer, before he saw the conductor, and then all the invitation he received from the conductor must be found in the language, "Hello! Where are you going?" and the circumstance that he did not warn him off.

The case before us is clearly distinguishable from the cases where injured passengers recovered damages although, at the time they were hurt, they were not in cars where the passengers usually ride. For in such cases, as the court said in Robertson v. Railroad. Co., 22 Barb. 93,-" the injured passengers were lawfully and rightfully upon the trains, and were only guilty of an impropriety in selecting the car or seats in which they rode, whereas," as we have seen in this case, "the plaintiff never was rightfully upon the train." As was said by the court in that case, "the plaintiff was a wrong-doer the moment he stepped his foot upon the engine, and so continued until he was injured, and cannot sustain this action." Duff v. Railroad Co., 91 Pa. St. 458; Beach, Contributory Neg. 161, 177-179.

The judgment must be reversed, the verdict be set aside, and the suit of the plaintiff be dismissed.

LEWIS, J. not sitting.

Passengers Riding in Dangerous Place-Consent and Authority of Servants See Lake Shore, etc., R. Co. v. Brown, and note, 31 Am. & Eng. R. R. Cas. 61, 72.

34 A. & E. R. Cas.-18.

ROSENBAUM

ย.

ST. PAUL AND DULUTH R. Co.

(Minnesota Supreme Court. February 8, 1888.)

Construction Train-Permission to Ride-Grader. The presumption that one who is permitted by an employee of a railroad company to ride upon a construction train is not lawfully thereon may be overcome by special circumstances implying the authority of such employee to grant such privilege.

Same-Gravel Train-Trespasser.-Plaintiff, a grader in the employment of the defendant, was injured by an accident which occurred while he was riding upon a gravel train. The graders had returned to the camp during the day and were informed that they would not be required to go out again during that day. Plaintiff went upon the gravel train for the purpose of getting his coat which he had left at the place where he worked, and was returning when the accident happened. The company was in the habit of transporting employees on the train daily, and the conductor had consented to plaintiff's riding upon it on the particular occasion. Held, that plaintiff was not a mere trespasser upon the train, and that defendant was responsible for defects in the track causing the accident.

Same-Defective Track-Assumption of Risks.—A person riding on such train, and over and upon side tracks, constructed in the ordinary manner, is deemed to consent to and accept risks incident to such a train and a track of that character; but if, through the neglect of the company to keep such track in suitable repair for the ordinary purposes for which it was constructed and used, an injury occurs to one lawfully upon the train, and without fault on his part, he may recover.

APPEAL from District Court, Ramsey County.

Action to recover damages sustained by plaintiff. Defendant appeals from a judgment for the plaintiff. The opinion states the case.

James Smith, Jr., and O'Brien & O'Brien, for St. Paul & D. R. Co., appellant.

Propping & Markham, for Rosenbaum, respondent.

Presumptions

VANDERBURGH, J.-1. The presumption of law is that persons riding on construction trains, and not employed in actual service thereon or in connection therewith, are not as to riding on lawfully there, and, if permitted to be there by the employees of the company, the presumption is against their authority to bind the company. Waterbury v. Railroad Co., 17 Fed. Rep. 673; Prince v. Railway

construction

trains.

Co., 64 Tex. 144. But this presumption may be overcome by special circumstances; as where, for instance, the company is in the habit of allowing its employees to ride on such trains to and from their work or their homes. In the case at bar the company was engaged in repairing its track. Separate companies of men were employed about the work. Some were engaged in loading the cars at the gravel pit; others accompanied the cars, and unloaded the gravel along the track; and others were graders, engaged in ballasting the track. The plaintiff belonged to the third class.

up

Facts.

The men so employed were all boarded and lodged at the boarding cars of the defendant stationed on a side track, and they were daily transported on the construction train to and from the boarding place and their work. And there was a side track near the boarding cars about 500 feet long, upon which the construction train, which was made of flat cars, was run when it came to the boarding car. The plaintiff was in the habit of being so carried with others daily. On the day in question when the alleged injury occurred, the train brought plaintiff and others engaged in the same work in the middle of the afternoon to the camp, and they were notified that they were not required to go out again to work that afternoon. He had left his coat at the place where he worked, and he thereupon rode back on a train loaded with gravel to get it, in company with the men who were unloading the cars, and with the consent of the conductor in charge of the train, who knew that he was not there to help unload the cars. The train came up to the camp from the south, when plaintiff got on board to go for his coat, and when it came back to the camp for the day with plaintiff and other employees it was run over the side track where the accident complained of occurred.

Plaintiff not a trespasser.

Under these circumstances, we do not think that the plaintiff ought to be considered a trespasser on the train, or that the defendant owed him no duty in respect to the condition of its track. It was the established practice of the company to transport employees, including the plaintiff, on this train every day. He was still an employee, though not working at that time, and was riding with others engaged in the same general employment. In view of the fact that these employees were all permitted to ride daily, and that the train was under the general direction and management of the conductor, who also had general charge of the work and the men, it should be held to be fairly within. his reasonable discretion to allow the plaintiff to ride, under the circumstances of this case. The plaintiff, therefore, having no knowledge of any rule forbidding the conductor to

grant such permission, might presume such authority from the nature of the business, and the manner in which it was conducted. It may be a question whether the instructions of the court in this case were in all respects strictly accurate, but, as no exceptions were taken to the charge, we need not consider such instructions. The defendant's first and second requests were properly refused, because their effect was to take the case from the jury. The court was right in refusing the third and fourth requests, and charging in lieu thereof "that, if the conductor was forbidden to carry passengers upon the train at the time in question, the plaintiff could not recover for the injury, unless the circumstances for which the company was responsible were such as to lead the plaintiff, as a reasonable man, to understand that he had such authority." The question was for the jury, upon the evidence in the

case.

Defective track-Assumption of risk.

2. The negligence complained of was solely in respect to the condition of the side track. The court charged the jury, at the defendant's request, that, if plaintiff knew the manner in which the side track was constructed, he assumed the risk necessarily incident to such construction. In riding on this train, he consented to, and accepted all the usual incidents to such a train. He cannot recover for injuries resulting from the condition of the side track, if the same was constructed in the usual way, though the grade was imperfect or uneven, and the track unballasted. But if through failure to spike the rails, or neglect to keep it in suitable repair for the temporary purposes for which it was constructed, and used, an injury occurred to one lawfully on the train, without fault on his part, he would be entitled to recover. Shoemaker v. Kingsbury, 12 Wall, 369; Hazard v. Railroad Co., 1 Biss. 503. The defect complained of by the plaintiff arose chiefly from the fact that the rails were not properly spiked to the ties. The evidence on this question was properly received, and the determination of the trial court thereon must be considered as final. Order affirmed.

Risks Assumed by Servant.-See Meloy v. Chicago & N. W. R. Co., 33 Am. & Eng. R. R. Cas. 358; Indianapolis, etc., R. Co. v. Watson, and note, 33 Ib. 334, 346; Wilson v. Winona and St. P. R. Co., and note, 31 Ib. 246.