Creed v. Pennsylvania Railroad Co.

• Decision Date: 11 February 1878
• Parties: Creed <I>versus</I> Pennsylvania Railroad Company.
• Court: Pennsylvania Supreme Court

86 Pa. 139

Creed versus Pennsylvania Railroad Company.

Supreme Court of Pennsylvania.

January 21, 1878.

February 11, 1878.

January 21st 1878.

Before AGNEW, C. J., SHARSWOOD, MERCUR, GORDON, PAXSON, WOODWARD and TRUNKEY, JJ.

Error to the Court of Common Pleas No. 1, of Philadelphia county: Of January Term 1877, No. 21.

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Pierce Archer, Jr., and Lewis C. Cassidy, for plaintiff in error. —Caboose-cars are constantly used by railroad companies, under their rules for the carriage of passengers for hire, and damages may be recovered for injuries sustained while riding therein: Lake Shore and Michigan Southern Railroad Co. v. Greenwood, 29 P. F. Smith 373; Indianapolis, B. and W. Railroad Co. v. Beaver, 41 Indiana 493; Chicago, Burlington and Quincy Railroad Co. v. Hazzard, 26 Ill. 373. If the conductor, in his discretion, permitted the decedent to ride in the caboose, he was rightfully there: O'Donnell v. Allegheny Valley Railroad Co., 9 P. F. Smith 249; Lackawanna and B. Railroad Co. v. Chenewith, 2 Id. 382; Carroll v. New York and New Haven Railroad Co., 1 Duer 571; Wharton's Law of Negligence 354; Redfield on Railways 332; Washburn v. The Nashville and Chattanooga Railroad Co., 3 Head 638; Dunn v. Grand Trunk Railroad Co., 58 Maine 187. The carrier who, instead of expelling a trespasser, permits him to remain in the carriage, enters into a contract of common carriage with him, and he stands, so far as concerns protection from neglect, on the same footing as the ordinary passenger: Wharton's Law of Negligence 354; Wilton v. Middlesex Railroad Co., 107 Mass. 108. Every one riding in a railroad car is presumed prima facie to be there lawfully, as a passenger having paid, or being liable when called on to pay his fare, and the onus is upon the carrier to prove affirmatively that he was a trespasser: Pennsylvania Railroad Co. v. Books, 7 P. F. Smith 339; Canal Co. v. Graham, 13 Id. 299; Flower v. Pennsylvania Railroad Co., 19 Id. 215. There are a number of decisions fixing the liability of carriers to passengers, riding on free passes, for negligence: Pennsylvania Railroad Co. v. Butler, 7 P. F. Smith 335; Same v. Henderson, 1 Id. 315; P. and R. Railroad Co. v. Derby, 14 How. 468; Pitts. Railroad Co. v. Caldwell, 24 P. F. Smith 421; Wharton's Law of Negligence 501, 641 and note. The case of The Union Railway Co. v. Nichols, 8 Kansas 505, relied upon by defendants, has no application to the case at bar, as there the plaintiff practised a deceit and falsely claimed to be an express agent to secure a free ride in the baggage-car, and the court properly held that the fraud barred a recovery. That case, too, has been criticised and condemned as unsound, in an elaborate review of all the cases, in Wharton's Law of Negligence 356, note 3; Redfield on Carriers 386.

Chapman Biddle, for defendant in error.—The two issues raised by the pleadings are, whether Creed was a passenger by contract or by presumption of law, at the time the accident occurred. As there was no evidence as to the first issue, the case is narrowed to the legal relation which Creed bore to the defendant.

A passenger by presumption of law may be defined to be one who takes his seat openly in a carriage, in the place assigned to passengers generally (Wharton on Negligence, § 354); is both ready and willing to pay his fare when called upon (Railroad Co. v. Books, 7 P. F. Smith 346), and consents to all the reasonable rules of the company for entering, occupying and leaving their cars: Sullivan v. The Reading Railroad Co., 6 Casey 238; Railroad Co. v. Zebe, 9 Id. 326.

Railway companies are authorized to make all reasonable rules and regulations for the carriage of their passengers: Dietrich v. Railroad Co., 21 P. F. Smith 436; Long v. New York Central Railroad Co., 50 New York 76. In the present instance, by the written order or regulation of the defendants, conductors were prohibited from carrying passengers in a caboose-car, which regulation was, moreover, in contemplation of law, known to Creed.

A person on a freight train is not a passenger, and no act of a conductor of a freight train will bind a company, unless it assents thereto: Eaton v. Delaware and Lackawanna Railroad Co., 57 N. Y. 382; Lygo v. Newbold, 9 Exch. 302. The case of the Lake Shore and Michigan Southern Railroad Co. is distinguishable from this case, as there the only coach provided on the way freight was the caboose; but here there were passenger-cars, and the use of the caboose by passengers was forbidden by the rules of the company. Creed, therefore, was clearly not a passenger by presumption of law; so that his status or relation to the company must have been either that of a trespasser or of an interloper. But in neither would he have been entitled to recover from the company in case of injury: Robertson v. New York and Erie Railroad Co., 22 Barb. 91; Union Pacific Railroad Co. v. Nichols, 8 Kansas 505.

Mr. Justice GORDON delivered the opinion of the court, February 11th 1878.

From the evidence it appears that Henry Creed, the husband of the plaintiff, from the death of whom the present action has resulted, was a passenger upon a mixed freight and passenger train of the defendant, running from Jersey City to Philadelphia. At the time of the accident, which resulted in his death, Creed was in the caboose, the hindmost car of the train, immediately in front of which were the passenger-cars, so that there was ready and easy access from the latter to the former. This caboose-car was one set apart and especially designed for the use and occupancy of the employees engaged in running the train, and by the rules of the company no other persons were permitted to enter it. It is quite clear, from the evidence, that Creed boarded this train at Jersey City, for Brannig, the freight conductor, says he saw him first on the afternoon of November 5th, the day of the accident, in that city, and that he next noticed him at Newark in the lookout of the caboose, and as this train left Jersey City in the evening, there can be but little doubt that the deceased got upon it at that point. It is also in evidence, that though Brannig had the full and entire charge of the train from the time it left Newark, yet he had no authority to receive passengers or to examine or lift the tickets of such as remained on the train after passing that station, at which point the passenger conductor, who had charge of the cars from Jersey City, left the train. Whether Creed paid his fare or not is unknown. Brannig's duties did not lead him to inquire, and the passenger conductor was not called. He may have had a ticket, or he may have been surreptitiously on the train through the connivance of the train hands, to whom he may have been known, as he formerly had a position on this road. Presumptively he was rightfully there; certainly he was there with the knowledge and acquiescence of one of the conductors, if not of both. Under this condition of affairs the learned judge of the court below charged the jury as follows:

"1. There is no direct proof of negligence on his, Creed's, part, unless it may be considered in connection with the position which he occupied in the cars as riding in the caboose." This point was reserved.

"2. We have no evidence of payment of money by him; but I think there is a reasonable and fair presumption, that if a person, not connected with the company, travels by a passenger train, presumably he is travelling as a passenger and for a consideration." This point was also reserved. The verdict was for the plaintiff but the court, without giving any opinion, entered judgment for the defendant non obstante veredicto. It follows, that the converse, of one or both of the above propositions, was finally held by the court. That is to say; first, that there was a legal presumption of negligence, on the part of Creed, arising from the fact of his being in a car, when the accident happened, not intended for the use of passengers; second, that, although travelling by a passenger train, and not connected with the company, the legal presumption is that he was not...