may be rebutted by evidence of the cause of the injury. One who had been in the employment of the company as an engineer and brakeman, until his train was discontinued a few days previous, and who had not been settled with or discharged, although not actually under pay at the time, and who signalled the train to take him up, and who took his seat in the baggage-car with the other employees of the company, and paid no fare and was not expected to, although at the time in pursuit of other employment, cannot be considered a passenger. If he would secure the immunities and rights of a passenger, he should have paid his fare and taken a seat in the passenger-car.

3. It will not deprive of his remedy a passenger who comes upon the train in that character, and is so received, that he is allowed as matter of courtesy to pass free, or to ride with the employees of the road in the baggage-car. But a passenger who * leaves the passenger carriages to go upon the platforms or into the baggage-car, unless compelled to do so for want of proper accommodations in the passenger carriages, or else by permission of the conductor of the train, must be regarded as depriving himself of the ordinary remedies against the company for injuries received, unless upon proof that his change of position did not conduce to the injury.2

2 Holmes, J. "The plaintiff below, an infant and only child of Thomas G. Higgins, who was killed while riding in a baggage-car on the Hannibal and St. Joseph Railroad, on the 16th day of September, 1861, brings this suit; the widow having failed to sue within six months to recover the $5,000, which are given by the second section of the act concerning damages (Rev. Stat. 1855, p. 647), where any passenger shall die from an injury resulting from or occasioned by any defect or insufficiency in any railroad.

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The petition is evidently framed upon that act, though the statute is not named or referred to by any express words. It contained two counts; one founded upon the second section, and the other upon the third section of the act.

"The verdict was for the plaintiff upon the first count, and for the defendant upon the second count; and the damages were assessed at $5,000. The defendant's motion for a new trial was overruled. The case came up by appeal, and stands here upon the first count only.

"The clause of the act on which this first count is founded relates exclusively to passengers, and to the cases of injury and death occasioned by some defect or insufficiency in the railroad. This statute makes the mere fact of an injury and death resulting from a cause of this nature, a prima facie case of negligence and liability on the part of the defendant, as a presumption of law. It is not a conclusive presumption, but disputable by proof that such defect or insufficiency

SECTION IV.

Injuries by defects in Highways caused by Company's Works.

§ 132. 1. Where a public company has the right, by law, of taking up the pavement of the street, the workmen they employ was not the result of negligence, nor does it preclude any other defence of a different nature. The act is to be interpreted and construed with reference to the state of the law as it stood before its passage. By the general principles of law, which were applicable to common carriers of passengers and to persons standing in that relation, the fact of an injury to a passenger, occasioned by a defective railroad car or coach, or by a defect in any part of the machinery, makes a prima facie case of negligence against the defendant sufficient to shift the burden of proof: and by that law carriers of passengers were held responsible for the utmost degree of care and diligence, and were liable for the slightest neglect. This act is evidently based upon the same principles: it is confined by its terms strictly to passengers and to injuries arising from cases of that peculiar nature only; and it must receive a construction in accordance with these principles. Viewed in this light, it is clear that the intent of this clause of the act was to provide greater security for the lives and safety of the passengers as such, and to enable the representatives of a deceased passenger to pursue the * 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

are bound to use such care and caution in doing the work as will protect the king's subjects, themselves using reasonable care, 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. 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. 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. 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

from injury. And if they so lay the stones as to give such an appearance of security as would induce a careful person, using 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.

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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 pro

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

vision 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 any thing 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 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 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 can fairly be allowed to demand the indemnity which passengers may by law require. If the person assumes one character for his 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.