remedy given by the act; and no other class of persons is intended within its purview. The first question here presented is, whether the deceased person was a passenger within the meaning of the act. The evidence shows he had been in the employ of the company as an engineer and brakeman for several years, with some intermission; that for several months previous to the accident, and down to the 4th day of September, 1861, when his train was stopped by guerillas, he had been continually on duty as a brakeman; and that, about that time, the interruptions occasioned by actual hostilities in that neighborhood had caused the train on which he was employed to cease running for a time; and that for several days before the day of his death he had not been in actual service upon any train, but his name still remained on the roll of the company's employees as before. He had never been paid off and discharged; his account was unsettled; there were arrears still due him at the time of his decease. It appears brakemen were paid monthly, but at the rate of so much per day for as many days as they actually worked during the month. These facts would all go to show that his employment still continued, and that his relations to the company was still that of an employee. On the morning of the accident he signalled the train to stop, and take him up where he was; he took his place on the baggage-car among other employees; he appears to have treated himself as an employee, and was treated by the conductor as an employee who was passing from one point to another on the road in the usual manner. He engaged no passage, took no seat in any passenger-car, paid no fare, and evidently did not expect to pay any; and none was exacted from him. He did not claim to be a passenger, nor was he treated otherwise than as an employee by the conductor. Upon a careful examination of the evidence on this point, we think it tended to prove that he was an employee, and not a passenger within the purview of this act, and that under all the circumstances the conductor had a right to presume he was travelling as an employee of the company merely. Such being the relation of the parties, the mere circumstances that he had been off duty as a brakeman for some days, or that he was then passing on his own private errand, and not immediately engaged on the business of the company or in running that very train, cannot be allowed to make any difference: Gilshannon v. Stony Brook Railw. Co., 10 Cush. 228. The conductor, knowing him only as an employee, was not bound to inquire into his particular errand; and though informed, by a casual conversation with him in the baggage-car, that he was looking for some temporary employment so as not to lose time, he still might be justified as treating him as an employee who had the privilege of free passage on the train as such. Under such circumstances it was his business, if he claimed to be a passenger, to engage or take a seat in the passenger-coach, or at least in some way to make it known to the conductor that he claimed to be travelling in the character of a passenger. Where a director was invited by the president to pass over the road as a passenger, without paying fare; Philadelphia and Reading Railroad Co. v. Derby, 14 How. (U. S.) 468; where a man was taken up by the engineer of a gravel train, to be carried as a passenger, paying fare as the practice had been, and was allowed to go from the tender to the gravel-car: Lawrenceburg & Upper Mississippi Railroad Co. v. Montgomery, 7 Ind. R. 474; and where a man who had been a work-hand on the road, but had left the service of the company two weeks before the accident, because they did not pay him, got upon the train to be carried as a passenger: Ohio and Mississippi Railroad Co. v. Muhlins, 30 Ill. R. 9; and where a house-carpenter was employed to build a bridge, and was sent by the company on their cars to another place to assist in loading timber for the bridge: Gillenwater v. Madison and Indiana Railroad Co., 5 Ind. R. 340; the injured person was held to be clothed with all the right and character of a passenger and a stranger; and that he was not to be considered as standing on the same footing as ordinary employees and fellow-servants of the company. If this party had been invited to go in the train as passenger, or had taken a seat in the passenger-car, or had been taken on board the train in the character of a passenger, and the conductor had merely waived his right to demand fare as an act of liberality or courtesy, and had then allowed him to pass into the baggage-car to ride there, the case would have been quite different, and might have fallen within the reasoning and the principles of these adjudicated cases. The benefit of this act was plainly intended for those only who stand, strictly speaking, in the relation of passengers, and between whom and the carrier there exists the privity of contract, with or without fare actually paid, and the peculiar responsibilities which are implied in that relation and depend wholly upon it. Where the relation is properly that of master and servant only, this particular clause of the act has no application. We think this matter was not fairly nor correctly laid before the jury by the instructions of the court below. Again, even if the deceased party would be considered as having been in any proper sense a passenger, there would not be the least doubt that he himself neglected all precautions and voluntarily placed himself in a position which he knew to be the most dangerous on the train for passengers. A baggage-car is certainly no place for a passenger, and as such the proof shows he had no business to be there at all. We are aware that it had been held in some cases, that if a passenger, who is travelling as such, is allowed to go into the baggage-car or into a part of the baggage-car which is used as a post-office, where passengers are sometimes permitted to be, as in Carrol v. New York and New Haven Railroad Co, 1 Duer, 571, and while there an accident and injury occur, by reason of negligence on the part of the company, and under such circumstances that his being in that place cannot be said to have materially contributed to produce the accident or injury, the defendant would still be held liable. In many cases of this kind, it might be difficult to determine whose negligence had been the real cause of the injury. But any question of this nature is removed from our consideration in this case by force of another statute which finds an apt and just application here. By the 64th section of the Act concerning Railroad Associations, Rev. Stat. 1855, p. 430, approved one day only after the act in question, it is expressly provided as follows: "In case any passenger on any railroad shall be injured while on the platform of a car, or in any baggage, wood, or freight-car, in violation of the printed regulations of the company, posted up at the time in a conspicuous place inside of its passenger-cars, then in the train, such company shall not be liable for the injury. Provided, said company at the time furnish room inside its passengercars sufficient for the proper accommodation of its passengers." This provision is by the 57th section of the same act made applicable to all existing railroads in this State: Ibid., p. 438. Under this section the exemption of the company is made to depend upon a violation by the passenger of the printed regulation hung up in the passenger-cars only. They are not required to be posted up in a baggage-car: it is presumed that no passenger will ever be found there. There was evidence in the case tending to prove that the provision of the statute had been complied with on the part of the defendant; but the printed forms used had been changed since that time, and no copy of the former cards had been found, and on proof made of the loss of them secondary evidence was offered to prove their contents. This evidence was excluded as irrelevant and having no bearing upon the case. In the view we have taken of this statute the evidence was certainly very material and should have been admitted. It is true such notice would have given this party no information, for the reason he did not go in the passenger-car; the evidence tended to show that he was in fact well acquainted with these regulations; and this consideration, so far from weighing anything in his favor, would rather tend to strengthen the inference that he was not a passenger at all. This statute proceeds again upon the general principles of law in relation to contributory negligence, and it supposes that a passenger who has had the warning of this notice, and yet has placed himself in a situation so dangerous as a baggage-car, is to be considered as contributing by his own negligence to produce the injury, and therefore that the company is not to be held liable in such cases. We think that the first and second instructions asked for by defendant should have been given, and that the fifth, sixth, and seventh instructions asked for by plaintiff should have been refused. It is not deemed necessary more particularly to notice the other instructions. The judgment is reversed and the cause remanded. concur. The other judges The foregoing opinion seems to us to present several interesting practical points, in a very judicious and sensible light. It is sometimes difficult to determine, with exact precision, when a person ceases to be an employee of the road and becomes a passenger. There is perhaps no fairer test than the one presented in this case, to allow his own claim and conduct at the time, and the acquiescence of the company, to determine that question. At the time, one who has recently been in the employment of the company has a motive to claim the privileges of the employment, by passing without the payment of fare. And if he claims the privilege, and it is acceded to by the officers of the company, there is great injustice in allowing the person at the same time to hold the company up to the higher responsibility which it owes to passengers, from whom it derives revenue. It should therefore be made to appear, that one who passes in the character of an employee of the road was really a passenger, before he * SECTION IV. Injuries by defects in Highways caused by Company's Works. 1. Liable for injuries caused by leaving streets in insecure condition. 2. Municipalities liable primarily to travellers suffering injury. 3. They may recover indemnity of the company. 4. Towns liable to indictment. Company lia ble to mandamus or action. 10 7. Bound to keep highways in repair. 8. Municipalities not responsible for injuries by such grant. 9. Canal company not excused from maintaining farm accommodations by railway interference. 5. Construction of a grant to use streets of a 11. city. 6. Such grant does not give the public any right to use the tracks. Railway track crossing private way. of * § 132. 1. Where a public company has the right, by law, of taking up the pavement of the street, the workmen they employ are bound to use such care and caution in doing the work as will protect the king's subjects, themselves using reasonable care, from injury. And if they so lay the stones as to give such an appearance of security as would induce a careful person, using reasonable caution, to tread upon them, as safe, when in fact they are not so, the company will be answerable in damages for any injury such person may sustain in consequence.1 And in a more recent case,2 a canal and railway company, as early as the 28 Geo. 2., had acquired the right, by act of parliament, to construct a canal and take tolls thereon, and had built the same across an ancient highway near St. Helens, a small village, and had made a swivel bridge across the canal for the passage of the highway; and by subsequent acts, reciting the can fairly be allowed to demand the indemnity which passengers may by law require. If the person assumes one character for advantage, and the company accede to the claim, he ought not to be allowed the benefits of any other character, unless it is very clear such was his real position, and that this was understood by the company. The effect of free passes, and of the passenger being out of his place in the carriages, is very fairly presented, as it seems to us, in the foregoing opinion, and the principal cases are referred to upon all the points. 1 Drew v. The New River Co., 6 Carr. & P. 754. 2 Manley v. The St. Helens Canal & Railw. Co., 2 H. & N. 840. existence of such works, all persons were to have free liberty with boats to navigate the canal for the transportation of goods, and penalties were imposed upon such persons as should leave open the drawbridges. The company maintained the works and received a toll from all others using them. A boatman having opened the swivel bridge, to allow his boat to pass through, in the night time, a person walking along the road fell into the canal and was drowned, just as the boat was coming up. When the bridge was open the highway was wholly unfenced. Two lamps had formerly been kept burning, of which one had been removed and the other was out of repair at the time. The jury found that the deceased was drowned by reason of the neglect of reasonable precautions on the part of the canal company, without any fault on his own part. Held that the defendants, having a beneficial interest in the tolls, were liable to an action, the same as any owner of private property would be for a nuisance arising therefrom. That the bridge being in the possession of defendants, the action was properly brought against them and not against the boatman. That the passing the subsequent acts, recognizing the existence of the bridge, was not a legislative declaration of its sufficiency. It was further held, that even if the bridge had been sufficient at the time of its erection, it was the duty of the company so to alter and improve its structure, from time to time, as at all times to maintain a bridge sufficient, with reference to the existing state of circumstances, and that the jury were warranted in considering the bridge, in the state in which it was, insufficient. 2. But it has been held, that where such companies, having the power, by law, to cut through and alter highways, either temporarily or permanently, do it in such a manner as to leave them unsafe for travellers, who in consequence sustain injury without fault on their part, that the towns or cities in which such highways or public streets are situated are primarily liable for all such injuries. 3 3 Willard v. Newbury, 22 Vt. R. 458; Batty v. Duxbury, 24 Vt. R. 155; Currier v. Lowell, 16 Pick. 170; Buffalo v. Holloway, 14 Barb. 101. In this last case an opinion is intimated, that a contractor for such works is not liable to make such precautionary erections as may be requisite to guard the public against injury, no such provision being found in his contract. But is not that a |