Kruse v. St. Louis, Iron Mountain & Southern Railway Co.

• Decision Date: 02 January 1911
• Parties: KRUSE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY
• Court: Arkansas Supreme Court

133 S.W. 841

97 Ark. 137

KRUSE v. ST. LOUIS, IRON MOUNTAIN & SOUTHERN RAILWAY COMPANY

Supreme Court of Arkansas

January 2, 1911

Appeal from Faulkner Circuit Court; Eugene Lankford, Judge affirmed.

Judgment affirmed.

J. A Watkins and T. G. Malloy, for appellant.

Where one who is able and willing to pay his fare takes passage on a freight train not intended for carriage of passengers by direction and permission of the company's agent and conductor, he cannot be regarded as a trespasser, even though he has not paid the fare. 5 Am. & Eng. Enc. of L. 514, note 1; 83 Ala. 238; 3 Am. St. Rep. 715; 99 Mo. 263; 92 Mo. 208; 1 Am. St. Rep. 760; 31 Am. & Eng. Ry. Cases 1; 9 Utah 340. And such person is entitled to the privileges and protection of a passenger. 38 La.Ann. 111. There is no presumption in this State that a person found on a freight train is not legally there or that he is a trespasser; the law is to the contrary. Kirby's Digest, § 6705. Plaintiff had the right to presume that the train was a local freight, even if it had not been one. 63 Ark. 491. Notwithstanding any rules of the company, when its agent, whose duty it was to inform passengers what trains to take, directed plaintiff to take passage upon this train, he became on entrance therein a passenger. 92 Mo. 208; 1 Am. St. Rep. 760; 31 Am. & Eng. Ry Cases 1; 6 L. R. A. 409; White on Personal Injuries on Railroads, § 555, and cases cited; 49 Ark. 360; 4 Am. & Eng. Ry. Cases 589; 72 Mo. 62; 58 Am. Rep. (La.) 162; 5 Am. St. Rep. 510. The trial was rendered a nullity by the action of the presiding judge in absenting himself from the court room without suspending the trial. 71 Ark. 112; 6 Col. 574; 39 Ind. 369; 14 Gratt. (Va.) 447; 95 Wis. 558.

Lovick P. Miles and Thos. B. Pryor, for appellee.

The evidence is clear that appellant knew that it was a violation of the company's rules for the conductor to carry him on this train, and also that it was understood that he was to be carried without the payment of any fare. He was a trespasser. "When there is a division of freight and passenger business of a railroad, the presumption is that a person found on a freight train is not legally a passenger; and if he claims that he is, it devolves upon him to show a state of case that will rebut the presumption. 76 Ark. 106; 49 Ark. 360; 114 F. 123; 57 N.Y. 382; 59 Ark. 403. Appellant cannot complain because of the absence of the presiding judge, since he raised no objection thereto at the time, and voluntarily continued his argument. 71 Ark. 112; 52 Ark. 285; 88 Ark. 70; 52 Ark. 6; 56 Ark. 515.

MCCULLOCH C. J., KIRBY, J., dissenting. Mr. Justice HART concurs in this opinion.

OPINION

MCCULLOCH, C. J.

Plaintiff, C. H. Kruse, instituted this action in the circuit court of Faulkner County to recover damages for personal injuries received while riding on one of appellee's freight trains which he had boarded at Malvern, Ark., en route to Texarkana. His injuries were caused by a collision with another train at Witherspoon, Ark. He alleged that he was a passenger on the train, and had paid his fare to Texarkana. The answer denied that plaintiff was a passenger, alleged that the train was one on which passengers were not allowed, and that plaintiff was a trespasser on the train, and had not paid his fare. The jury returned a verdict in favor of defendant, and plaintiff appealed.

Plaintiff was a telegraph operator, and had been sojourning in Hot Springs. He came to Malvern over another railroad, and desired to go to Texarkana on one of defendant's trains. He testified that he was waiting in the station at Malvern when the freight train came, and asked the conductor if the train carried passengers, and was told that it did; that he inquired of the conductor what the fare was to Texarkana, and was told that it was two dollars; that he paid that sum to the conductor, who pointed out the caboose and told him to get on.

The testimony adduced by defendant tended to show that the train was a through freight, on which passengers were not allowed to travel without special permission of the trainmaster or superintendent, and that plaintiff knew this when he boarded the train; that plaintiff neither paid nor offered to pay fare, nor intended to pay any, but that, on the contrary, he was permitted by the conductor to ride free in violation of the rules of the company. Plaintiff introduced one witness whose testimony tended to show that the train on which plaintiff rode was a local freight and carried passengers, but the preponderance of the evidence was to the effect that it was a through freight and did not carry passengers.

The law is well settled in this State that when one enters a train such as a through freight, which he knows or has reason to believe is not intended to carry passengers, and on which the rules of the company forbid passengers to ride, he is not a passenger in a legal sense, but is a trespasser, and cannot recover damages for injuries received while on the train unless they have been wilfully or wantonly inflicted by servants of the railway company. St. Louis, I. M. & S. Ry. Co. v. Reed, 76 Ark. 106, 88 S.W. 836.

Chief Justice COCKRILL, speaking for this court in such a case, said: "Where there is a division of the freight and passenger business of a railroad, the common presumption is that a person found on a freight train is not legally a passenger; and if he claims that he is, it devolves upon him to show a state of case that will rebut the presumption." Hobbs v. Texas & Pac. Ry. Co., 49 Ark. 357, 5 S.W. 586.

The same learned judge, speaking for the court in another such case, said that if a person "through his own neglect had embarked on a mere wild train which the conductor could not delay without the danger of throwing the passenger and freight travel of the road into confusion, it was his duty to refuse to stop merely for a passenger's accommodation. The fact that he took the appellee's ticket could not alter the rule under such circumstances. " St. Louis, I. M. & S. Ry. Co. v. Rosenberry, 45 Ark. 256.

We deem it to be equally sound in justice to say that when a person enters a train without any intention to pay fare, but under a collusive agreement with the conductor to ride free in violation of the rules of the company, and does not pay any fare, he does not legally become a passenger, and the railway company is not responsible for his safety as a passenger. Quoting from the language of Judge RIDDICK in the Reed case, supra, if, under those circumstances, he "is carried safely to his destination, he gains that much at the expense of the company. On the other hand, if an accident happens, and he is injured, there is no reason or justice in requiring the company to pay for his injuries, unless they have been wantonly or wilfully inflicted."

The authorities which sustain the proposition are numerous, and among them are found the following, which include cases where persons ride under collusive agreements with the conductor not to pay fare, or to pay less than full fare, and also where persons ride on a pass or ticket procured from the company by fraud. Fitzmaurice v. N.Y. etc., Rd. Co., 192 Mass. 159, 7 Am. & Eng. Ann. Cas. 586, 78 N.E. 418; note to Vassar v. Atl. Coast Line R. Co., 9 A. & E. Ann. Cas. 535; 2 Shearman & Redf. on Neg., § 489; 2 Jaggard on Torts, § 1081; Toledo, etc., Ry. Co. v. Beggs, 85 Ill. 80; Purple v. R. Co., 114 F. 123; Duff v. Ry. Co., 91 Pa. 458; Mendenhall v. Ry. Co., 66 Kan. 438; Way v. Chicago, R. I. & P. Ry. Co., 64 Iowa 48, 19 N.W. 828; Condran v. Ry. Co., 67 F. 522; Williams v. M. & O. Ry. Co., 19 So. 90.

We have no question presented here of the status of a person who attempts in good faith to ride on a ticket or pass on which he is in fact not entitled to ride, but is permitted to ride by the conductor. Many cases hold that under those circumstances he is deemed to be a passenger and entitled to protection as such, the test being the question of good faith. But where a person attempts in bad faith to defraud the company by riding free or for less than full fare, even with the consent of the conductor of the train, according to sound reason and authority he is a trespasser, and the company is not responsible for injuries not wantonly or wilfully inflicted.

The instructions given by the court on this subject conform to the law as here expressed, and were therefore correct.

The court gave the following instruction over the objection of the plaintiff: "The court instructs you that the presumption is that a person found upon a freight train is not legally a passenger, and if he claims that he is it devolves upon him to show a state of case that will rebut the presumption. He must show that he entered the train with the bona fide intention of becoming a passenger thereon; that is, that he either procured a ticket of defendant to ride upon said train, or that he intended in good faith to pay his fare."

The first part of this instruction is erroneous in saying that "the presumption is that a person upon a freight train is not legally a passenger." The language employed is almost identical with that of Chief Justice COCKRILL in Hobbs v. Texas & Pac. Ry. Co., supra; but when that opinion was written we had no statute, such as was afterwards enacted, requiring railroads to carry passengers on local freight trains. Since there is a statute compelling railroads to carry passengers on local freight trains, when a person is permitted to enter a freight train as a passenger, there is no presumption arising that he is not legally a passenger. Ark. Midland Ry. Co. v. Griffith, 63 Ark. 491, 39 S.W. 550.

We conclude, however, that the last sentence of the instruction rendered the error in the first harmless, for it correctly...