§ 214. DROVER ACCOMPANYING STOCK.

A drover transported over a railroad on a pass for the purpose of taking care of his stock is not a servant of the railroad company, but a passenger.' He performs no duty on the train, is not connected in any manner with its management and operation, is not subject to the carrier's orders in that behalf, and owes no obedience, at least in the sense in which such duties commonly exist between master and servant.2 But a stipulation in a bill of lading that the shipper designated in it may accompany the stock on the freight train, free of charge, can be availed of only by him. Another, though assisting the shipper, and claiming an interest in the stock, who, without procuring a ticket or tendering fare, also boards the train with the shipper, intend

a railroad company occupies a very peculiar relation to these porters, for they are invariably held to be the servants of the railroad company in so far as to charge the company with liability for their torts to passengers. See post, § 347.

§ 214. 1 Flinn v. Railroad Co., 1 Houst. (Del.) 469; Little Rock & Ft. S. R. Co. v. Miles, 40 Ark. 298; Ohio & M. R. Co. v. Nickless, 71 Ind. 271; Receivers of International & G. N. Ry. Co. v. Armstrong, 4 Tex. Civ. App. 146, 23 S. W. 236. A drover riding on a freight train in charge of stock, with the consent of the railroad company, whether on a regular ticket or on a drover's pass, is a passenger; and the carrier owes him the same duty as to other passengers. New York, C. & St. L. R. Co. v. Blumenthal, 160 Ill. 40, 43 N. E. 809. The fact that a drover's pass contains a condition prohibiting minors from riding thereon does not deprive a 10 year old boy traveling on such a pass of any of the rights of a passenger, where the conductor received him on the train as a passenger, with knowledge of the facts. Texas & P. R. Co. v. Garcia, 62 Tex. 285.

2 Carroll v. Railway Co., 88 Mo. 239.

ing to ride free, does not thereby become a passenger, but is a trespasser.3

It has been held, however, that a shipper of cattle, who, for the purpose of enabling him to care for his stock in transit, receives a drover's pass, is not, while accompanying his stock, entitled to all the rights and privileges of an ordinary passenger for hire; but he takes passage under the implied condition that he will submit to whatever inconveniences are necessarily incident to his undertaking to look after the stock.

But

a condition in a pass given to a shipper of stock that he shall be deemed an employé of the company while trav eling with the stock, and that the liability of the company to him shall be that of master, is ineffectual to deprive him of the rights of a passenger, except as to

Richmond & D. R. Co. v. Burnsed, 70 Miss. 437, 12 South. 958. So though he intends to pay fare when called upon. Gardner v. New Haven & N. Co., 51 Conn. 143. A shipper of stock and household goods employed plaintiff to accompany him, and take care of the property. Plaintiff rode in the box car with the stock, and paid his fare to the conductor. At the end of this conductor's division, the car was side tracked, and the next morning was placed in another train, in charge of a different conductor and crew. Plaintiff again got into the box car, without notifying any of the train hands, and they locked the car door in the usual manner, without knowledge of plaintiff's presence in the car. Later the goods caught fire from sparks from the locomotive, and plaintiff was burned before the door was opened. Held that, since pla...tiff was riding in a box car without the knowledge of the train hands, the relation of carrier and passenger did not exist, and the fact that plaintiff had paid his fare, and that the conductor of the first train knew of his riding in the box car on the preceding day, does not alter the case. Jenkins v. Railway Co., 41 Wis. 112.

4 Omaha & R. V. R. Co. v. Crow, 47 Neb. 84, 66 N. W. 21.

such risks and inconveniences as necessarily attend on caring for stock."

§ 215. PERSON ENGAGED IN BUSINESS ON CARRIER'S VEHICLE.

As a general rule, one who, with the carrier's consent, goes upon its trains or boats to carry on a business for his own profit, is a passenger. Thus, one who rents a room on a steamboat at a stipulated monthly rental, for the purpose of selling liquor and cigars, and who is entitled to his carriage and board as part of the contract, is not an employé of the steamboat company, but a passenger, so far as the company's liability for injuries to him is concerned.1 So, one who agrees to pay a railroad company a specified sum per annum, and to supply passengers on one of its trains with iced water, for the privilege of selling popped corn on its trains, and for free passage on its regular trains, is, while traveling on the railroad under this contract, a passenger, and not a servant of the railroad company.2

But a different rule prevails when one seeks to carry on his business in the carrier's vehicles without the

Missouri Pac. Ry. Co. v. Tietken (Neb.) 68 N. W. 336.

§ 215. 1 Yeomans v. Navigation Co., 44 Cal. 71.

2 Com. v. Vermont & M. R. Co., 108 Mass. 7. A newsboy who, with the implied permission of a street-car company, jumps on a street car to sell his papers to passengers, is not engaged or employed about the car, within the meaning of the Pennsylvania statute which makes a person so employed a fellow servant with the conductor, and the company is liable for injuries sustained by the boy by reason of the conductor's negligence. Philadelphia Traction Co. v. Orbann, 119 Pa. St. 37, 12 Atl. 816.

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Thus, a boy riding

carrier's knowledge and consent. on a train from day to day, not as a passenger or employé, but by the connivance of the conductor, and in violation of the known rules of the company, in order to sell newspapers, is a trespasser on the train, and the company owes him no duty of care. So, a newsboy who boards a street car to sell papers, without objection by the employés on the car, is, at most, a mere licensee or volunteer, and not a gratuitous passenger, and must take the car as he finds it.*

§ 216. PERSON ASSISTING CARRIER'S SERVANT.

It is generally held that one who voluntarily undertakes to perform service for another, or to assist the servants of another in the service of the master, either at the request or without the request of such servants, who have no authority to employ other servants, is a volunteer or intermeddler, to whom no duty of care is due. Thus one who goes on a train to assist the brakeman, at the request of the conductor or other train hands, is a trespasser, if the conductor had no express authority to employ him, and there was no exigency which called for the exercise of implied au

8 Duff v. Railroad Co., 91 Pa. St. 438.

4 Blackmore v. Railway Co., 38 U. C. Q. B. 172; North Chicago St. Ry. Co. v. Thurston, 43 Ill. App. 587. In an action for injuries to a newsboy while attempting to take passage in an elevator, it is competent to show that plaintiff was notified of the fact, prior to the accident, that newsboys were not allowed in the elevator, and that he could not do so, since in that event he would be a mere trespasser. Springer v. Byram, 137 Ind. 15, 36 N. E. 361.

thority. So, one who rides on a locomotive engine under an agreement with the fireman that he is to shovel coal in consideration for his ride, but without the knowledge of the conductor in charge of the train, is not a passenger, but a trespasser engaged in an attempt to defraud the company.2

But, in the case of a bona fide passenger, the fact that he undertakes to assist the carrier's servants does not necessarily terminate the relation. Thus, a passenger on a street car, who, at the driver's request, assists in pushing the car on a side track, so as to enable another car to pass, is, while so engaged, still a passenger, and is neither a servant of the company nor a trespasser or volunteer. So the relation of carrier and passenger is not terminated by the fact that the passenger alights from the train, and aids the carrier's servants in identifying and removing his baggage, nor does the act of so doing make him a servant of the carrier.*

§ 216. 1 Railroad Co. v. Dial, 58 Ark. 318, 24 S. W. 500; Cooper v. Railroad Co., 136 Ind. 366, 36 N. E. 272; Everhart v. Railroad Co., 78 Ind. 292.

2 Woolsey v. Railroad Co., 39 Neb. 798, 58 N. W. 444.

3 Street Ry. Co. v. Bolton, 43 Ohio St. 224, 1 N. E. 333. But it has been held that one who voluntarily undertakes to perform a service while on a train that he is under no obligation to perform, although undertaken at the request of the foreman of the train gang, becomes a fellow servant with the engineer and fireman, and, if injured by their negligence, cannot recover. Texas & N. O. Ry. Co. v. Skinner, 4 Tex. Civ. App. 661, 23 S. W. 1001.

4 Ormond v. Hayes, 60 Tex. 180.

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