Purple v. Union Pac. R. Co.

• Decision Date: 10 March 1902
• Docket Number: 1,591.
• Citation: 114 F. 123
• Parties: PURPLE v. UNION PAC. R. CO.
• Court: U.S. Court of Appeals — Eighth Circuit

114 F. 123

PURPLE v. UNION PAC. R. CO.

No. 1,591.

United States Court of Appeals, Eighth Circuit.

March 10, 1902

Syllabus by the Court.

One who, knowing that a conductor has no authority to grant free transportation, enters and rides upon his train with the deliberate intention not to pay his fare, under an agreement or under a tacit understanding with the conductor that he shall ride free, commits a fraud upon the railroad company and is not a passenger, but is a mere trespasser, to whom the only duty of the company is to abstain from willful or reckless injury.

One who enters and rides upon a car or train which he knows, or by the exercise of reasonable diligence would know, is prohibited from carrying passengers, is a trespasser, and not a passenger, and the only duty of the railroad company toward him is to abstain from wanton or reckless injury to him.

In the absence of any rule or practice permitting freight trains to carry passengers, the presumption is that one riding for his own convenience on a freight train, an engine, a hand car, or any other carriage of a common carrier not designed for the transportation of passengers, is unlawfully there, and is a trespasser.

One about to board a train who has knowledge of facts which would put a person of ordinary prudence and diligence upon inquiry to ascertain whether or not the train is permitted to carry passengers is charged with a knowledge of all the facts which a reasonably diligent inquiry would discover.

It is not error to refuse to instruct the jury that a defendant is guilty of gross negligence as distinguished from ordinary negligence on the one hand, and willful or reckless negligence on the other, because there is no such legal degree of negligence as 'gross' negligence. The word 'gross' in this connection is a mere epithet used to characterize one of the two legal classes of negligence mentioned.

The statement of facts in a bill of exceptions is conclusive in an appellate court unless it is excepted to and the exceptions are recorded in the bill when it is settled.

On the 9th of January, 1900, Cassandra Purple, who is the widow of Harry G. Purple, brought an action against the Union Pacific Railroad Company for negligence causing his death. She alleged that on October 16, 1899, between Laramie and Cheyenne, in the state of Wyoming, he was a passenger upon a train of the railroad company, and was killed through the negligence of the latter by another train which ran into the rear of that upon which Purple was riding. The railroad company denied these allegations, and averred that Purple was riding upon an extra freight train, which was prohibited from carrying passengers, that he knew that this train was not authorized to carry passengers, and that he was riding without pass or other free transportation, with the intention of paying no fare. The issues presented by these pleadings were submitted to a jury, which returned a verdict for the defendant, and a writ of error has been sued out to reverse the judgment founded upon this verdict. The case is presented upon a bill of exceptions which contains but a portion of the evidence. It discloses these facts: The train upon which Purple was riding was an extra freight train running east from Laramie to Cheyenne. It was prohibited from carrying passengers by the rules of the company, but those rules permitted regular freight trains to take passengers. At Sherman, on its way from Laramie to Cheyenne, it became a section of passenger train No. 6. The sectionizing of a train is the act of the train dispatcher. It is an act of temporary application, and may be discontinued at any suitable point. Its sole purpose is to give certain track rights that a train does not possess before the order is issued. The order at Sherman which made this train a section of regular passenger No. 6 directed a freight train ahead of this one, this train regular passenger No. 6, another passenger train, and another freight train to sun sections 1, 2, 3, 4, and 5 of the regular passenger No. 6. These sections were running in this way when the accident occurred. The evidence of the defendant tended to show that an extra freight train did not lose its distinctive character as such by being made a section of a passenger train, but that it still remained an extra freight train. One of the rules of the company was that, where 'freight trains on which passengers are allowed to be carried are run in sections, the last section of the 'train only' will be permitted to carry passengers and another was that 'conductors will collect fare from all persons traveling without a ticket or pass, and will be allowed no discretion in the matter.'

Harry G. Purple was an employe of the Union Pacific Railroad from 1884 until 1893, and part of the time was a conductor. The rules for the operation of this road in force at the time of his death were the same as those in force when he was employed upon the road, and at that time he was thoroughly familiar with them. The train upon which Purple rode left Laramie at 8:15 p.m. on October 15, 1899. Its conductor was an old friend and acquaintance of Purple. The train consisted of 27 or 28 freight cars and a caboose. Purple had been visiting at Laramie for two or three days, and he had in his pocket on this day a time card which disclosed the fact that this train which he boarded was not a regular freight train and therefore not entitled to carry passengers. He was in the train dispatcher's office before the departure of the train, and that dispatcher could have informed him that this was not a regular freight train. The evidence of the defendant tended to prove that he had no intention of paying the fare, and that there was a tacit understanding between him and Davis, the conductor of the freight train, that he was to be permitted to ride on this train from Laramie to Cheyenne without the payment of any fare. He did not pay of offer to pay fare, and nor did the conductor or any one else ask him to do so.

The bill of exceptions contains a statement that all evidence tending to show the fact or character of the defendant's negligence is found in it, and that there was no evidence in the case tending to show wanton, willful, or reckless disregard on the part of the company of the safety of the deceased. These are the principal facts disclosed by the record which condition the determination of the questions presented by the alleged errors specified in this case, which all relate to the charge of the court and to its refusal to give certain requested instructions.

L. W. Keplinger (C. F. Hutchings, on the brief), for plaintiff in error.

N. H. Loomis (A. L. Williams and R. W. Blair, on the brief), for defendant in error.

Before CALDWELL, SANBORN, and THAYER, Circuit Judges.

SANBORN Circuit Judge, after stating the case as above, .

The court refused to instruct the jury that the deceased was a passenger on the freight train of the defendant at the time he has injured, and that if he was killed by the negligence of the company the plaintiff was entitle to recover. This ruling is the first and the chief complaint of counsel for the plaintiff in error. There are, however, two reasons why this specification of error cannot be sustained.

In the first place, Purple had no pass, ticket, or permit to ride free upon this train, he paid no fare, there was evidence tending to prove that he did not intend to pay fare, and that there was a tacit understanding between him and the conductor, Davis, that he should ride free. He was a man of years, intelligence, and experience. He had been employed upon this railroad for about nine years. He knew that he had no right to ride, and that the conductor of the train had no authority to permit him to ride without the payment of fare. The rules governing the operation of this railroad during the nine years when he was employed upon it prohibited this course of action, and they forbade it when he was killed. He had been familiar with these rules during the nine years of his employment upon this railroad, from 1884, to 1893, and in the seven years which followed, from 1893 to 1899, before he was injured, it is hardly possible that he could have forgotten or could have become ignorant of the specific fact that conductors were not empowered to grant free transportation upon this railroad, or of the general and universally known fact that it is not the custom to permit them to do so upon any railroad. If knowing this fact, he entered and rode upon this train with the deliberate intention not to pay his fare, under the tacit understanding between himself and the conductor that he should not pay it and a deliberate attempt to appropriate transportation without compensation, in violation not only to the rules of the company, but also of the civil and the moral law. If he entered and continued upon this train under this understanding with the settled intention not to pay the fare, the relation of passenger and carrier was never created between him and the company, but he was a mere trespasser upon its property, fraudulently appropriating his ride, and the only duty which the company owed to him was to abstain from willfully or recklessly inflicting injury upon him. One, who, knowing that a conductor has no authority to grant free transportation, enters and rides upon his train with the deliberate intention not to pay his fare, under an agreement or under a tacit understanding with the conductor, that he shall ride free, commits a fraud upon the railroad company, and is not a passenger, but is a mere trespasser, to whom the only duty of the company is to abstain from willful or reckless injury. Condran v. Railroad Co., 67 F. 522, 523, 14 C.C.A. 506, 507, 508, 32 U.S.App. 182, 185, 28...