especially provided for that purpose. It cannot, however, be expected that a company will provide its freight trains with all the conveniences and safeguards against danger which may properly be demanded in the construction and operation of cars designed solely for the transportation of passengers; and the ordinary rule that the company must provide safe and convenient means of getting on and off trains obviously has but slight application to the case of a passenger on a freight train."

NEGLIGENCE OF
PASSENGER.

The defendant did not stop its train at the usual stopping-place, where it was safe for passengers to alight, but, on the contrary, at an unusual place, where it was unsafe and dangerous; before reaching which, the station "Paris" was announced, thereby inviting plaintiff,-nothing to the contrary appearing, to get off when and where it stopped. These facts, in connection with the further facts that the night was very dark, and that passengers in the caboose could not for that reason see the danger, and that the conductor, on leaving the caboose with the light, could or might have seen it, made his failure to warn and inform the passengers of the dangerous character of the surroundings gross negligence. But it is argued that plaintiff was also negligent in leaving the caboose under the circumstances, and that the demurrer to the evidence ought to have been sustained for that reason. We are of a different opinion. The slowing up of the train, as it approached Paris, the sounding of the whistle, the announcement by the brakeman of the station, stopping the train, the act of the conductor and brakeman leaving the caboose with the light, the detachment of the engine to take water, can be construed in no other light than as a direction to the passengers to alight then and there, and plaintiff, in the absence of anything appearing to the contrary, had a right to conclude that it would be safe for him to alight at that place. Leslie v. Wabash, St. L. & P. R. Co., 88 Mo. 51; Terre Haute & I. R. Co. v. Buck, 96 Ind. 347; Beach, Cont. Neg. pp. 173, 71, § 23, where it is said: "When the defendant, by his own negligent or wrongful acts or omissions, throws plaintiff off his guard, or when plaintiff acts, in a given instance, upon a reasonable supposition of safety induced by the defendant, when there is, in reality, danger to which plaintiff is exposing himself, in a way and to an extent which but for the defendant's inducement might be imputed to the plaintiff as negligence sufficient to prevent a recovery, such conduct on the part of plaintiff, so induced, will not constitute contributory negligence in law, and the defendant will not be heard to say that the plaintiff's conduct, under such circumstances, is negligent, for the purpose of a defense to the action. . . . If plaintiff exercises ordinary care and prudence, under the circumstances, in relying upon defendant's inducement, or in obeying defendant's orders and directions, he may have his action."

It is next insisted that the second instruction given for plaintiff is erroneous, because it is too general in telling the jury that if plaintiff exercised "due care," etc., and did not specifically set out all the circumstances tending to show contributory negligence. The instruction is as follows:

"2. If the jury find from the evidence that plaintiff was a passenger on defendant's said train, and that it was dark when said train arrived at Paris; and that defendant's agents and servants stopped said train so that the caboose stood upon a high embankment, the side of which was perpendicular; and that said place was a dangerous place for passengers to alight from said train; and that said place was not the usual and ordinary stopping-place for freight trains at said station; and that the brakeman of said train announced the station, and that plaintiff believing that said train was at its usual stopping-place, and that no other opportunity would be offered him to alight from said train at said station; and further find that defendant's said agents and servants neglected to warn plaintiff of the dangerous character of the place, or that he must not attempt to alight at said place; and that they carried away their lanterns and failed to furnish plaintiff any light by which to alight from said train, they will find defendant guilty of negligence toward plaintiff; and if the jury so find the defendant guilty of negligence toward plaintiff, and that as the direct and immediate consequence of such negligence on defendant's part, plaintiff, while exercising due care on his part. alighted from said train and fell down the embankment at said dangerous place and sustained the injuries complained of in plaintiff's petition, they will find a verdict for plaintiff."

We have already shown that it was not negligent in plaintiff in alighting from the train at the time he did; and inasmuch as there is nothing in the case before us to show that plaintiff, in leaving the caboose, was not exercising due care, the error complained of, if it may be so called, was immaterial; especially so in view of the evidence which would have justified the court in adding after the words "due care," "and there is no evidence tending to show that plaintiff was not exercising due care."

It is also insisted that the court erred in admitting evidence to show that it was the custom and usage for defendant's freight trains to carry passengers. The fact of such custom was testified to by a number of witnesses, and that it was notorious; and the reception of the evidence was warranted by the following authorities: Wood, Mast. & Serv. p. 791, § 401; Lawson, Customs, pp. 41, 42.

Nor was error committed in the reception of evidence to prove the usual stopping-place of freight trains at the station in Paris. Tibby v. Missouri Pac. R. Co., 82 Mo. 299; 84 N. Y. 241; 49 Mich. 372.

The cause having been fairly tried, the judgment is affirmed, with the concurrence of the other judges.

QUESTIONS TO THE EDITOR.

FEBRUARY 11, 1888.

DEAR SIR: Your letter of January 25th, received. I thank you sincerely for your kind offer. . . . The R. Co. has a positive rule prohibiting

passengers from riding on its freight trains, and discharges any employee who allows it. A man with full knowledge of this rule applied to the conductor of a freight, and was by him, be being his cousin, permitted to ride on it. A collision occurred and he was seriously hurt, and is now suing for $10,000.

Eaton v. The D., L. & W. R. Co., 57 N. Y. 382; and Waterbury v. N. Y. C. & H. R. Co., 17 Fed. Rep. 671, are cases bearing on the point. I am satisfied he was an intruder and not entitled to recover; but it is a case of much interest with the profession as it involves the liability of railroads for a character of injuries that is becoming very common in the South where commercial travelers (drummers) to reach stations insist and persist in violating the rule.

Thanking you again for your kind offer, I am, with high regard,

Yours truly,

In the following note will be found a collection of cases which bear more or less directly upon the point mentioned in the above letter, and it is hoped they will prove not without general interest and value (Ed.).

Passengers on Freight Trains.-Railroad companies may, if they choose, carry passengers on their freight trains, and freight on their passenger trains, but are not obliged to do so. Chicago, etc., R. Co. v. Randolph, 53 Ill. 510; Houston, etc., R. Co. v. Moore, 49 Texas, 31.

Regulations as to Tickets.-Reasonable regulations, requiring tickets of a particular description to be procured before taking passage on freight trains will be upheld. Chicago, etc., R. Co. v. Flagg, 43 Ill. 364; Illinois, etc., R. Co. v. Johnson, 67 Ill. 312; St. Louis, etc., R. Co. v. Myrtle, 51 Ind. 566; Faulkner v. Ohio, etc., R. Co., 55 Ind. 369; Lake Shore, etc., R. Co. v. Greenwood, 79 Pa. St. 373.

Accommodations.-A passenger who takes a freight train takes it with the increased risks and diminution of comfort incident thereto. Chicago, etc., R. Co. v. Hazzard, 26 Ill. 373; Chicago, etc., R. Co. v. Fay, 16 Ill. 568: Ohio, etc., R. Co. v. Dickerson, 59 Ind. 317.

Freight trains cannot be expected to be provided with all the conveniences of passenger trains, such as air-brakes, bell cord, and a brakeman upon every car. Hazard v. Chicago, etc., R. Co., 26 Ill. 373, and 1 Biss. (C. C.) 503 Indianapolis, etc., R. Co. v. Beaver, 41 Ind. 493; Indianapolis, etc., R. Co. v. Horst, 93 W. S. 291, 297; Minch v. Concord R. Co., 29 N. H. 9, 42.

In Chicago, etc., R. Co. v. Hazard, 26 Ill. 373, the plaintiff was standing upon the rear platform of the caboose with the intention of getting off while the train was moving slowly, when the speed of the train was increased, the caboose jerked violently, and plaintiff thrown over the end of the caboose and injured on account of a lack of chain or bar in the centre of the rear platform. Held, that the jerking of the train and lack of a chain-guard upon the rear of the caboose were not negligence.

Degree of Care required of Passengers.-The dangers naturally incident to travel by rail are greater on freight than on passenger trains, and call for a correspondingly higher degree of care on the part of passengers. Harris v. Hannibal, etc., R. Co., 27 Am. & Eng. R. R. Cas. 216.

Degree of Care required of the Company.—But the responsibility of a railroad company for the safety of its passengers does not depend on the kind of cars in which they are carried, or on the fact of payment of fare by the passenger. Ohio, etc., R. v. Mahling, 30 Ill. 9; Phila., etc., R. v. Derby, 14 How. (U. S.) 468; Waterbury v. N. Y., etc., R., 17 Fed. Rep. 671.

Free Riders on Freight Trains.-A person riding on a freight trains on which passengers are allowed to be carried, is to be regarded as a passenger, although he may have boarded the train without the knowledge or permission of the conductor and paid no fare, if the conductor, after becoming aware of his presence, permits him to remain. Sherman v. The Hannibal, etc., R., 72

Mo. 62.

Where the company accepts the fare of a person and allows him to ride upon a freight train he is a passenger, and is entitled to the same degree of care and protection as if carried on a passenger train. Indianapolis & St. Louis R. v. Horst, 93 W. S. 291; Minch v. C. R., 29 N. H. 9; I. R. v. Beaver, 41 Md. 493; C. & G. R. v. Fay, 16 Ill. 568; Edgerton v. N. Y. & H. R. R., 39 N. Y. 227; International, etc., R. Co. v. Irvine, 23 Am. & Eng. R. R. Cas. 518; Dunn v. Grand Trunk R., 58 Me. 187; Second v. St. Paul M. & M. R. Co., 18 Fed. Rep. 221.

Though a train is not operated for the purpose of carrying passengers, yet if those in control thereof assume to carry a passenger, and he gets on the train by their invitation and direction, they are bound to operate the train in such a manner as due care and attention would suggest for the safety of the passenger. L. S. & M. S. R. v. Brown (Ill.), 14 N. E. Rep. 197; see also Int. & G. N. R. v. Cock. (Tex.) 5 S. W. Rep. 635.

Passengers upon Freight Trains by Permission of the Conductor but Contrary to the Rules. When the rules of the company forbid the carrying of passengers on freight trains, but the conductor relaxes the rules and permits passengers to be carried, the better opinion seems to be that the company will be responsible for want of care in their transportation. Dunn v. Grand Trunk R., 58 Me. 187; Creed v. Pa. R. Co., 86 Pa. St. 139; Lackawanna, etc., R. Co. v. Chenewith, 42 Pa. St. 382; Lucas v. Milwaukee, etc., R. Co., 33 Wis. 41; Wilton v. Middlesex R. Co., 107 Mass. 108, 125 Mass. 130; Jacobus v. St. Paul, etc., R. Co., 20 Minn. 125; see also, Jenkins v. Chicago, etc., R. Co., 41 Wis. 112.

In Dunn v. Grand Trunk R., 58 Me. 187, the plaintiff entered the salooncar attached to the defendant's freight train, and when the train started, without being requested or directed to leave, remained there as a passenger, contrary to the rules of the company, but with the knowledge of the conductor who received from him the usual fare. The saloon-car was thrown off the track by a broken rail and plaintiff injured. Held, that the company was liable. Appleton, C. J., said: "The regulations of the defendant corporation are binding on its servants. Passengers are not presumed to know them. Their knowledge must be affirmatively proved. If the servants of the corporation, who are bound to know its regulations, neglect or violate them, the principal should bear the loss or injury arising from such neglect or violation rather than strangers. . . . The plaintiff was not entitled by law to be carried on the freight train contrary to the regulations of the defendant company. They might have refused to carry him, and have used force to remove him from the train. Not doing this, nor even requesting him to leave, but suffering him to remain, and receiving from him the ordinary fare, they must be held justly responsible for negligence or want of care in his transportation.

Where the conductor permits a passenger to ride in a caboose attached to the train, although contrary to the rules of the company, and an accident occurs through the company's negligence, whereby the passenger is injured, he may recover damages. Creed v. Pa. R. Co., 86 Pa. St. 139.

If a passenger by a freight train has ample time to get on the caboose, he is not justified in getting into a freight car. Plager v. Burlington, etc., R., 12 Am. & Eng. R. R. Cas. 112.

In Waterbury v. N. Y. C. & H. R. R. (C. C.), 17 Fed. Rep. 671, it was held that where a drover riding on an engine, who has sued for injuries sustained though the negligence of the defendant company, claims that he was riding on the engine by the consent of the engineer to look after his cattle, as was customary, and the defendant claims that it was contrary to orders for anybody to ride on an engine, it is a question of fact for the jury whether the defendant had, notwithstanding its rules, by its conduct held out its employees to the plaintiff as authorized under the circumstance to consent to his being carried on the train with his cattle.

Wallace, J., said: "If it should appear that its employees have been accustomed to allow drovers to accompany their cattle on the cattle trains so generally and constantly that the officers of the company must have known it, the consent of the company may be predicated upon acquiescence and ratification."

"The evidence shows," said Walker, J., in Ohio, etc., R. v. Mahling, 30 Ill. 9, "that the road had been carrying passengers on their construction trains, and they must be held to the same degree of diligence with that character of train, as with their regular passenger coaches, for the safety of the persons and lives of their passengers."

Contrary Doctrine.-It has been held, however, that as railroad companies have the right to make a complete separation between their freight and passenger business, where this is done the conductor of a freight train has no power whatever as to the transportation of passengers, and notice of this limited authority will be implied from the nature and apparent division of the business.

Eaton v. Delaware, etc., R., 57 N. Y. 382, where Dunn v. Grand Trunk R., 58 Me. 187, is questioned and distinguished. In the New York case, just cited, the plaintiff was invited by the conductor of a coal train to ride upon the train with the promise to get him employment as a brakeman. There was a "caboose" at the rear of the train, for the carriage of train implements and the accommodation of defendant's employees, in which the plaintiff rode, but paid no fare. Through the negligence of defendant's employees, a collision occurred and plaintiff was injured. By the regulations of the company, of which plaintiff had no actual notice, passengers were forbidden to ride on coal trains. Held, that the conductor had acted in violation of express instructions and that the plaintiff was not lawfully on the train and could not recover. Dwight, C., said: "No act of a conductor of a freight train will bind the company as to carrying passengers, unless the principal in some way assents to it. In the present case, it was distinctly proved that the company forbade the act, and there was no evidence of any form of assent to its exercise, except that which may be inferred from the use of the caboose."

Where the rules forbid the carrying of passengers on freight trains, and the conductor has no authority to relax them, a passenger who knows of the regulations in this particular and takes passage and is injured, cannot recover. Houston, etc., R. Co. v. Moore, 49 Tex. 31.

Rule where some Freight Trains carry Passengers.-Where a railroad company permits passengers to be carried on some of its freight trains, if a person takes passage on one, in good faith, supposing it to be a freight train on which passengers are carried and not being informed to the contrary before receiving personal injuries caused by mismanagement of the train, and especially if directed by the conductor of the train to go aboard, although unauthorized by the company to do so, such person will have the rights of a