ger trains. And where a railroad company has so divided its traffic, the presumption will be that a person who was riding on one of its freight trains was not legally a passenger, and the burden of proof will be upon him to show that under the special circumstances of the case he occupied the relation of passenger to the company.2 But where a long continued and notorious disregard of a regulation of the railroad company prohibiting the carriage of passengers on freight trains is shown, the presumption will arise that a person who was traveling on one of the company's freight trains was a passenger.3 In the absence of any rule or established custom permitting passengers to ride on freight trains, the presumption will be that those in charge of such trains have no authority to authorize passengers to ride upon them; and certainly where an 1. The railroad company has the right to refuse to carry passengers upon its freight trains and may eject those seeking to ride upon them. Hobbs v. Railway Co., 49 Ark. 357; Arnold v. Railroad Co., 83 Ill. 273; Murch v. Railroad Co., 29 N. H. 9; Elkins v. Railroad Co., 23 N. H. 275; Thomas v. Railway Co., 72 Mich. 355; Railroad Co. v. Best, 169 Ill. 301, 48 N. E. Rep. 684, reversing 68 Ill. App. 532; Roberts v. Smith, 5 Arizona 368, 52 Pac. Rep. 1120; Railroad Co. v. Moss, 13 Ky. Law Rep. 684; Cross v. Railway Co., 56 Mo. App. 664; Gardner v. Railroad Co., Mo. App. 93 S. W. Rep. 917. So it may run a "pay train" and exclude passengers therefrom. Southwestern, etc. R. Co. v. Singleton, 66 Ga. 252. 2. Purple v. Railroad Co., 114 Fed. 123, 51 C. C. A. 564, 57 L. R. A. 700; Smith v. Railroad Co., 124 Ind. 395, 24 N. E. Rep. 753; Eaton v. Railroad Co., 57 N. Y. 382. There can be no presumption that a freight train is designed to carry passengers from the fact that it has a caboose attached to it, since a caboose is usually furnished for the employes' use. Railroad Co. v. Headland, 18 Colo. 477, 33 Pac. Rep. 185, 20 L. R. A. 822. 3. Greenfield v. Railway Co., 133 Mich. 557, 95 N. W. Rep. 546; Railway Co. v. Lynch, (Tex. Civ. App.) 40 S. W. Rep. 631. The person claiming protection under this rule, however, must not know of the company's regu lation. Railway Co. r. Huff, (Tex. Civ. App.) 78 S. W. Rep. 249; s. c. 81 S. W. Rep. 525. Tex. 4. Dysart v. Railway Co., 122 Fed. 228, 58 C. C. A. 592. But express rule exists denying to passengers the right to be carried on freight trains, the conductor on such a train cannot, by consenting that a person may ride upon it, impose upon the railroad company the duty of exercising toward him the care which it owes to a passenger.5 But a contrary view has been taken by some courts, and it has been held that where a person offers himself as a passenger upon a freight train without knowledge that the company refuses to receive passengers upon it, he will be justified in relying upon the authority of the conductor in charge of the train, and that if such conductor receives him as a passenger, he will be lawfully such although he pays no fare, and although the conductor, by so doing, violated his instructions. But such person will have no right to rely upon the authority of a brakeman or other inferior servant when a conductor is in charge of the train. And when the person so offering himself knows that the conductor has no authority to receive him as a passenger, and he colludes with the conductor to allow him to ride, he cannot claim the rights of a passenger.8 So the implied authority of the conductor this presumption may be overcome 6. Whitehead v. Railroad Co., 99 by proof of an order from the superior officer from whom conductors customarily receive such orders directing him to carry the person on his freight train. 5. Eaton v. Railroad Co., 57 N. Y. 382, 15 Am. Rep. 513; Smith v. Railroad Co., 124 Ind. 394, 24 N. E. Rep. 753; Stalcup v. Railway Co., 16 Ind. App. 584, 45 N. E. Rep. 802; Railroad Co. v. Berry, 53 Kan. 112, 36 Pac. Rep. 53, 42 Am. St. Rep. 278; Powers v. Railroad Co., 153 Mass. 188, 26 N. E. Rep. 446; Railway Co. v. Cox, 66 Ohio St. 276, 64 N. E. Rep. 119, 90 Am. St. Rep. 583; Railroad Co. v. Hailey, 94 Tenn. 383,' 29 S. W. Rep. 367, 27 L. R. A. 549; Railway Co. v. Block, 87 Tex. 160, 27 S. W. Rep. 118. Mo. 263, 11 S. W. Rep. 751; McGee v. Railroad Co., 92 Mo. 208, 4 S. W. Rep. 739; Gradin v. Railway Co., 30 Minn. 217; Dunn v. Railroad Co., 58 Me. 187, 4 Am. Rep. 267; Hanson v. Transportation Co., 38 La. Ann. 111; Burke v. Railway Co., 51 Mo. App. 491; Railroad Co. v. Frazer, 55 Kan. 582, 40 Pac. Rep. 923 (construction train). 7. Candiff v. Railway Co., 42 La. Ann. 477; Reary v. Railway Co., 40 La. Ann. 33; Brevig v. Railway Co., 64 Minn. 168, 66 N. W. Rep. 403; McNamara v. Railway Co., 61 Minn. 296, 63 N. W. Rep. 726. 8. Gulf, etc. R'y Co. v. Campbell, 76 Tex. 174; Railroad Co. v. White, (Tex. Civ. App.) 34 S. W. can go no further, under ordinary circumstances, than to receive him as a passenger in that part of the train upon which passengers might properly be expected to be carried, and he cannot claim the rights of a passenger when he accepts carriage elsewhere, as upon the engine attached to the train.o But where a railroad company receives and undertakes to carry passengers upon its freight trains, it thereby, so far as the public is concerned, gives to its conductors upon such trains an apparent authority to accept persons upon them as passengers; and if any such conductor has been given instructions not to carry passengers on his train, such instructions will be considered as secret limitations upon his apparent authority, and they will not be binding on third persons unless such persons have actual knowledge that they have been given. This is a familiar principle of the law of agency, and no reason is perceived why it is not applicable to railroad companies.10 So the principle is well settled that if a passenger, who has purchased a ticket, enters a freight train by the direction of a station agent of the railroad company, and without notice of a regulation that passengers are not carried on freight trains, he is not a trespasser and will, at least until advised of the regulation and given an opportunity to alight in safety, be considered as lawfully on the train. And if he is ejected while Rep. 1042; Toledo, etc. R'y Co. v. Brooks, 81 Ill. 245; Smith v. R. & Banking Co., 113 Ga. 9, 38 S. E. Rep. 330; Railroad Co. v. Hailey, 94 Tenn. 383, 29 S. W. Rep. 367, 27 L. R. A. 549; McVeety v. Railroad Co., 45 Minn. 268, 47 N. W. Rep. 809; Hoehn v. Railroad Co., 52 Ill. App. 662; affirmed, 152 Ill. 223, 38 N. E. Rep. 549; Railroad Co. v. Best, 169 Ill. 301, 48 N. E. Rep. 684, reversing 68 Ill. App. 532; Greenfield v. Railway Co., 133 Mich. 557, 95 N. W. Rep. 546; Purple v. Railway Co., 114 Fed. 123, 57 L. R. A. 700, 51 C. C. A. 564; Railroad Co. v. Frazer, 55 Kan. 582, 40 Pac. Rep. 923 (construction train). 9. Files V. Railroad Co., 149 Mass. 204; Woolsey v. Railroad Co., 39 Neb. 798, 58 N. W. Rep. 444, 25 L. R. A. 79; Railroad Co. v. Michie, 83 Ill. 427; Nightingale v. Union Colliery Co., 9 British Columbia, R. 453, 2 Can. Ry. Cases, 47. But see Hanson v. Transportation Co., 38 La. Ann. 111. 10. Lucas v. Railway Co., 33 Wis. 41; Simmons v. Railroad Co., 41 Ore. 151, 69 Pac. Rep. 440; rehearing denied, 69 Pac. Rep. 1022; Fitzgibbon v. Railway Co., 108 Iowa, 614, 79 N. W. Rep. 477; s. c. the train is in motion, or at a dangerous and improper place, the company will be liable if he is thereby injured.11 If the company has made known that it will carry passengers upon its freight trains only upon the passenger's complying with certain requirements, one who seeks to recover for not being so carried must show either that he had complied with the requirements or had used reasonable efforts to comply and had been prevented by the fault or negligence of the carrier or its servants.12 It is a matter of common knowledge, also, that riding upon freight trains is unavoidably accompanied with more delay, discomfort and danger than upon trains devoted exclusively to passengers, and the passenger who accepts carriage upon a freight train must be deemed thereby to have assumed these necessary incidents.13 Sec. 965. Same subject-Right to be carried on special or emergency trains.-A railroad company is under no legal duty to receive and transport passengers on a special train, made up for some emergency, as for the purpose of going to and returning from a wreck on the company's line. And one who, with knowledge of the circumstances, contracts with the conductor to be carried as a passenger on such train to and from 119 Iowa, 261, 93 N. W. Rep. 276; Everett v. Railway Co., 9 Utah, 340, 34 Pac. Rep. 289; Boggess v. Railway Co., 37 W. Va. 297, 16 S. E. Rep. 525, 23 L. R. A. 777. 11. Railroad Co. v. Davenport, 177 Ill. 110, 52 N. E. Rep. 266, affirming 75 Ill. App. 579; Railway Co. v. Ditto, 158 Ind. 669, 64 N. E. Rep. 222. 12. Indianapolis, etc. R. Co. v. Kennedy, 77 Ind. 507; Connell v. Railroad Co., (Miss.) 7 S. Rep. 344; Burlington, etc. R. Co. v. Rose, 11 Neb. 177; Thomas v. Railway Co., 72 Mich. 355; McCook v. Northup, 65 Ark. 225, 45 S. W. Rep. 547; Railway Co. v. Jackson, 3 Tex. Ct. R. 479, 61 S. W. Rep. 440; Railway Co. v. Stell, 28 Tex. Civ. App. 280, 67 S. W. Rep. 537; Ellis v. Railway Co., 30 Tex. Civ. App. 172, 70 S. W. Rep. 114; Railroad Co. v. Berry, (Tex. Civ. App.) 84 S. W. Rep. 258; Reed. v. Railway Co., 76 Minn. 163, 78 N. W. Rep. 974. the wreck, and who pays fare for his passage in going, has no right to an action ex delicto against the company for a breach of contract in failing to furnish him return transportation on the same train.14 Sec. 966. What persons the carrier may refuse to accept.As the common carrier holds himself out as the carrier of only such goods as are in a fit condition to be carried, and may, as has been seen, notwithstanding his public profession, refuse to accept such as are unfit to be carried on account of their kind, the unsuitable manner in which they are prepared for transportation, or the insecurity or damage which they may occasion to the goods of other shippers or to the carrier himself, so the carrier of passengers, however publicly he may hold himself out or be engaged as such carrier, may refuse to accept persons offering themselves as passengers who are unfit to be carried, either because such persons, from bad character, from being afflicted by contagious disease,15 from apprehended evil designs,16 either upon the carrier himself or his passengers, or from drunkenness or insanity, would be unfit associates for them or unsafe for the carrier; or if any person refuses to pay his fare, or to submit to the reasonable regulations of the carrier, or if his purpose in seeking a passage is to interfere with or injure the business of the proprietors of the conveyance, or to make an assault upon another passenger, or if there be no room for him, or even if the carrying of the person offering himself as a passenger wouuld probably excite a passenger. But where the action is for a breach of contract, the carrier, to escape liability, must have offered to return the 14. Railroad Co. v. DuBose, 120 Ga. 339, 47 S. E. Rep. 917; Du Bose v. Railroad Co., 121 Ga. 308, 4S S. E. Rep. 913. 15. Walsh v. Railroad Co., 42 purchase money. Pullman Co. v.. Wis. 23. If, after making a contract to carry a person afflicted with an infectious or contagious disease, the carrier becomes aware of such person's condition, the carrier may put an end to the contract and decline to admit or carry him as Krauss, Ala. 40 So. 16. Gamblers and monte men may be excluded, or, if found plying their nefarious practices, may be ejected. Thurston v. Railroad Co., 4 Dill. 321. |