All that a passenger under such circumstances can reasonably exact, is the exercise of such care and skill in the management and running of the train as prudent and cautious men, experienced in that business, are accustomed to use under similar circumstances. Such care implies a watchful attention to the working of the locomotive and machinery, the cars and their running gear, and an unfailing lookout at the condition of the roadbed.' So where a train is a special one, running for the particular purposes of the road, and not for the convenience of the traveling public, for whom trains were provided only on week days, the railroad is under no obligation to receive or transport passengers upon it. It is its privilege to do so, however; and if it does receive a person on its special train as a passenger for the purpose of being transported from one place to another, it assumes towards him the same duties as if he had been a passenger traveling on the same train on its regular trips; the passenger assuming no risks on this trip other than on a regular one, except such as were necessarily incident to the character of the train, and the purposes for which it was being run.' The same rule applies to freight trains accepting passengers, modified by the circumstances under which the service is undertaken. Carriers are not bound to adopt on freight or mixed trains all the appliances which they use on passenger trains, but are required merely to use the highest degree of care consistent with the practical operation of such trains.* Failure of a mixed train operated as a way freight and passenger accommodation combined, to have a bell rope, is not sufficient to show negligence, in the absence of other evidence.* But a railroad company that has for years been in the habit of carrying passengers on one of its local freight trains is required to exercise the highest possible degree of care and diligence of which such trains are susceptible. Where the caboose usually attached to a freight train habitually used for passengers is in the repair shop, and a common box car, with temporary rude 1Shoemaker v. Kingsbury, 79 U. S. 12 Wall. 369, 20 L. ed. 432. McGee v. Missouri Pac. R. Co. 10 West. Rep. 282, 92 Mo. 208; Wagner v. Missouri Puc. R. Co. 3 L. R. A. 156, 97 Mo. 512. 3Oviatt v. Dakota Cent. R. Co. 43 Minn. 300. Arkansas M. R. Co. v. Canman, 52 Ark. 517. seats, is substituted to accommodate passengers, and the use of such box car is more dangerous, the degree of care demanded on the part of the company is thereby increased.' A railroad company carrying passengers on its freight trains owes them the same degree of care as when they are on the regular trains except that in taking the freight train they accept and travel on it acquiescing in the usual incidents and conduct of a freight train managed by competent and prudent men. And the same rule applies to passengers carried on construction trains, as qualified above." A person taking a cattle train, the same as a person taking any other kind of a train, is entitled to the highest possible degree of care and diligence, reasonably consistent with the business of the carrier, and the means of conveyance employed. While it is true that one taking passage upon a freight train assumes the increased risk incident to its operation and management, yet when the company accepts him as a passenger on such train it becomes bound by all the obligations of a common carrier of passengers upon a regular passenger train." Whether a railroad company is guilty of negligence in running a freight train at the rate of 40 miles an hour, notwithstanding its track is in a good and safe condition and its cars properly equipped, will depend upon the particular circumstances,-as, the size of the train, the manner of loading the cars, the dangers of collisions, and the like. A rule of a railroad company that the speed of freight trains must not exceed 15 miles per hour, exclusive of stops, except in cases where schedules are run faster than 15 miles an hour, means that no more than 15 miles shall be run in an hour of actual running time, and not that at no time within the hour shall the highest speed exceed 15 miles an hour.' Missouri Pac. R. Co. v. Holcomb, 44 Kan. 332. 'McGee v. Missouri Pac. R. Co. 10 West. Rep. 282, 92 Mo. 208; Woolery v. Louisville, N. A. & C. R. Co. 5 West. Rep. 667, 107 Ind. 381; 27 Am. & Eng. R. Cas. 213, Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. ed. 898. Ohio & M. R. Co. v. Muhling, 30 Ill. 9. Indianapolis & St. L. R. Co. v. Horst, 93 U. S. 291, 23 L. ed. 898. Pennsylvania Co. v. Newmeyer (Ind.) Oct. 28. 1891; Woolery v. Louisville, N. A. & C. R. Co. 5 West. Rep. 667, 107 Ind. 381; Fisher v. Southern Pac. R. Co. 89 Cal. 399. Pennsylvania Co. v. Newmeyer (Ind.) Oct. 28, 1891. Sutherland v. Troy & B. R. Co. 28 N. Y. S. R. 201. One who voluntarily takes passage on a freight train, and receives an injury caused by a jolt or jar such as is usual and necessary in coupling cars, cannot recover damages for such injury.' But a railroad company admitting passengers to a freight train is liable for an injury occurring to them from negligence in the management of such a train, without contributory negligence on the part of the passengers, to the same extent as if they were on a passenger train. A passenger in charge of horses upon a stock train, who is informed by the conductor that the train will remain at a certain place for a specified time long enough for him to obtain a meal, and that he must thereafter ride in the car with the horses, has a right to assume that he may safely enter the car at any place at which he finds it within the time named.' But it is also true that one who takes passage on a freight train knowing the risks and inconvenience incident thereto, must exercise more care for his personal safety than would be required of him upon ordinary passenger trains; and in an action for injury received by him, proof that he was thrown down and received injuries by the sudden starting or jerking of the train, when other passengers, keeping their seats, were not injured, should be submitted to the jury on the question of contributory negligence. And even though the carrier because of the character of its train may not be responsible for the extraordinary care common carriers of passengers are required to exercise, still it would under all circumstances be liable for failure to exercise slight or ordinary care if such negligence cause injury to a passenger without his fault." Men making up a construction train, engaged in building a railroad which crosses another, are not relieved from liability for negligence in leaving one end of a car projecting over the other track, because no train is due according to schedule time on the other road, where a train running under special order comes into collision with such car. 1Crine v. East Tennessee, V. & G. R. Co. 84 Ga. 651. New York, C. & St. L. R. Co. v. Doane, 1 L. R. A. 157, 115 Ind. 435. Wallace v. Western N. C. R. Co. 98 N. C. 494. Shoemaker v. Kingsbury, 79 U. S. 12 Wall. 369, 20 L. ed. 432; St. Joseph & W. R. Co. v. Wheeler, 35 Kan. 185, 188. *Albert v. Sweet, 116 N. Y. 363. § 76. Traveling on Freight Train or Baggage Car with Knowledge of Conductor. Persons are not presumed to have knowledge of rules prohibiting their presence on freight trains,' nor that tickets must be purchased before entrance to car; but payment of fare will be presumed. A passenger allowed to ride on a special train, who has no notice of any want of authority to grant the permission, whether pays fare or not, in the absence of collusion between him and the conductor to defraud the company of its fare, becomes a passenger, and, as such, is entitled to have the train on which he travels managed with the care that is due from a common carrier to passengers on a train of that character." he A person riding on a railroad without paying fare, by permission of the conductor, is not a trespasser, though the train is not intended and operated for the carriage of passengers, and though the conductor has no authority to permit such person to ride." The corporation selects and employs its servants and it should be responsible for their conduct while in its employ. It has been held that one who is on a freight train, with the knowledge and consent of the agent having charge of it, cannot be said to be there wrongfully, although he had knowledge that he was on the train in violation of the rules of the company; and the company owes him a duty although he is there against the rules of the company. The permission of the conductor of a freight train having entire charge thereof, to ride on such train, although he was forbidden to carry passengers on that train, and although the person permitted to ride was not required to pay fare, is within the scope of 1Dunn v. Grand Trunk R. Co. 58 Me. 187. Brown v. Kansas City, Ft. S. & G. R. Co. 38 Kan. 634. 3 Louisville, N. A. & C. R. Co. v. Thompson, 5 West. Rep. 938, 107 Ind. 442. 4 Wagner v. Missouri Pac. R Co. 3 L. R. A. 155, 97 Mo. 512; Creed v. Pennsylvania R. Co. 86 Pa. 139; St. Joseph & W. R. Co. v. Wheeer, 35 Kan. 185; Dunn v. Grand Trunk R. Co. 58 Me. 187; Wilton v. Middlesex R. Co. 107 Mass. 108; Ohio & M. R. Co. v. Muhling, 30 Ill. 9; Sherman v. Hannibal & St. J. R. Co. 72 Mo. 63; Muehlhausen v. St. Louis R. Co. 6 West. Rep. 857, 91 Mo. 344; Jacobus v. St. Paul & C. R. Co. 20 Minn. 125 (Gil. 110). Alabama G. S. R. Co. v. Yarbrough, 83 Ala. 238. "Dunn v. Grand Trunk R. Co. 5 Me. 187, 192; Creed v. Pennsylvania R. Co. 86 Pa. 139; East Saginaw City R. Co. v. Bohn, 27 Mich. 503; Wilton v. Middlesex R. Co. 107 Mass. 105, 125 Mass. 130; Lucas v. Milwaukee & St. P. R. Co. 33 Wis. 41; Washburn v. Nashville & C. R. Co. 3 Head, 638. the conductor's authority, so far as to render the company liable for an injury resulting from lack of ordinary care on the part of the employés of the company.' The correct rule seems to be that where a person knowing the rules to forbid such action gets upon a freight train, even with the assent of the conductor, and pays no fare, he cannot be regarded as a passenger. The true rule in such a case is that where one fraudulently induces an agent of the company to disregard his duty, and permit him to ride free, he is not a passenger in the strict legal sense of the word." If a conductor of a freight train tells a person, before he gets on, that he is not authorized or permitted to carry passengers, and still such person enters the car, with or without the knowledge and consent of the conductor, he is not a lawful passenger, and cannot recover as such, against the company, for an injury sustained while riding on the train. A conductor cannot relax régulations of a railroad company prohibiting passengers from riding on freight trains, without consent of the company, so as to render the latter liable as a carrier to a passenger, to one injured while riding on a freight train knowing the rule.* An express rule of a railroad company forbidding the carrying of passengers upon a freight or construction train, except under special circumstances, is not to be construed as being limited to passengers for hire. An express agreement in a mileage ticket will not be affected by a subsequent advertisement announcing the passengers "with tickets" might ride on freight trains. A brakeman employed on a freight train in charge of a conductor has no implied authority to bind the company by a contract of passage; and his permission to a person to ride does not make such a person a passenger. But a passenger going on a freight train and taking a seat in the cab of locomotive, by the direction of the engineer, is not, by so doing, guilty of contributory negligence. 'Whitehead v. St. Louis, I. M. & S. R. Co. 6 L. R. A. 409, 99 Mo. 263. Houston & T. C. R. Co. v. Moore, 49 Tex. 31, 30 Am. Rep. 98; Eaton v. Delaware, L. & W. R. Co. 57 N. Y. 382. Toledo, W. & W. R. Co. v. Brooks, 81 Ill. 245. "Gulf, C. & S. F. R. Co. v. Campbell, 76 Tex. 174, 41 Am. & Eng. R. Cas. 100. Powers v. Boston & M. R. Co. 153 Mass. 188. 'Dunlap v. Northern Pac. R. Co. 35 Minn. 203. 'Cundiff v. Louisville, N. O. & T. R. Co. 42 La. Ann. 477. |