Simmons v. Oregon R. Co.

• Decision Date: 30 June 1902
• Citation: 41 Or. 151,69 P. 440
• Parties: SIMMONS v. OREGON R. CO. [1]
• Court: Oregon Supreme Court

69 P. 440

41 Or. 151

SIMMONS v. OREGON R. CO. ^[1]

Supreme Court of Oregon

June 30, 1902

Appeal from circuit court, Umatilla county; W.R. Ellis, Judge.

Action by G.D. Simmons against the Oregon Railroad Company. From a judgment in favor of plaintiff, defendant appeals. Affirmed.

This is an action to recover damages for personal injuries suffered by the plaintiff through the negligence of the operators of a train upon which he was riding. For some 18 months prior to the accident he had been employed by the defendant company as a fireman on one of its helper engines at Kamela, a station on the summit of the Blue Mountains. He was paid by the "run," receiving no compensation when not at work. Under his contract of employment the company reserved from each check issued to him for wages 40 cents as a hospital fee, in consideration of which it agreed, in case of illness or injury, to provide him with medical services and medicine free, and, as the testimony tended to show, to transport him to and from points on the road wheel the company provided medical attendance for its employés. On the 17th of May 1900, being indisposed, he obtained a "lay-off," in order to go to La Grande, a station some 20 miles east of Kamela, to consult the company's physician and obtain medical service. He rode to La Grande on one of the company's trains, without a ticket or pass, and without paying fare, or having his right to travel in this manner questioned. After consulting the physician and transacting some other business in La Grande, he went to the depot, and got aboard the caboose car of what he then supposed was a regular freight train, but which, as a matter of fact, was an extra, although there was nothing in its outward appearance to indicate any difference between it and a regular freight. It was made up as were regular freight trains, and had attached to it a caboose car, fitted up for carrying passengers, like those used by the company on regular freight trains. The conductor was in the car when the plaintiff went aboard, inquired of him where he was going, and the plaintiff told him he was going home. Plaintiff paid no fare, none was demanded of him, nor had he any written evidence of his right to ride, yet the conductor allowed him to do so. When the train reached Kamela, in the course of the work required at that station it became necessary to detach the caboose and rear helper engine from the remainder of the train, and leave them standing on the track until the rest of the train was pulled west beyond the west switch, the purpose being to pick up a non-air car from the west spur, and attach it to the train. In order to do this, it was intended that the rear helper engine should take the caboose, go in on the spur track, pick up the car, and bring it out on the main track and attach it to the train. When, however, the engine with the caboose reached the west switch, instead of stopping, as it should have done, it was permitted, through the negligence and carelessness of the train employés, to move west on the main track until a collision occurred between the caboose and the main train, thereby severely and permanently injuring the plaintiff, who was then in the caboose. The rules of the company in force at the time provided that every person riding on its trains must present a ticket or pass or pay fare for each trip, and that conductors must not carry passengers or employés without tickets or passes. Rule 243 provided that: "Freight trains will not carry passengers, except as designated in the special rules. Trains so designated will carry employés with passes, and passengers when provide with proper transportation as required by the rules. Employés with passes may be carried on all freight trains between stations at which trains stop." The special rule governing the carrying of passengers on freight trains was as follows: "Passengers presenting permit form 208, accompanied by proper transportation, may be carried by regular freight trains between points [at] which they stop, subject to rules 218 and 243." Form 208 referred to, contained a written contract, wherein the person accepting the same agreed that the railroad company, in the operation of its freight trains should not be deemed a common carrier of passengers, and should not be liable to the holder as such common carrier. The plaintiff, however, had no knowledge of these rules or requirements, or of the conditions under which the defendant carried passengers on its freight trains. His work was in another department, and he was not called upon, nor was it necessary for him, to familiarize himself with the rules governing the company's transportation business. About the 1st of January, 1900, the defendant issued and delivered to the division engine foreman at La Grande an employés pass, No E17, for "one fireman," good between Kamela and La Grande, which the foreman was authorized to deliver to any fireman that the company might wish to transport between the stations named. In addition to this, such foreman had blank trip passes, which he was authorized to issue to employés going over the road. Employés of the company, however, when known to the conductors, were commonly permitted to travel without a pass or other written evidence of their right to transportation. Plaintiff knew of the existence of pass No. E17, and had used it on one or two occasions, but generally rode without it, and had been told by the person having it in charge that it was not necessary for him to procure it, as he was an "old man," and therefore known to the conductors on the road. The trial resulted in a verdict and judgment in favor of the plaintiff, and the defendant appeals.

W.W. Cotton, for appellant.

T.G. Hailey and A.S. Bennett, for respondent.

BEAN C.J. (after stating the facts).

There are numerous assignments of error referred to and discussed in the briefs, but they are all grounded, substantially, upon the contention that the relation of passenger and carrier did not exist between the plaintiff and defendant at the time of the injury, and that the defendant was, therefore, not liable to him for an injury received through the negligence of the train operatives. The question thus presented naturally divides itself into two special subjects of inquiry: First, whether the conductor of the train upon which the plaintiff was riding had apparent authority to accept him as a passenger, and to create the relationship of passenger and carrier between him and the defendant; and, second, if so, whether he is to be regarded as a passenger or an employé at the time of the injury.

A passenger is sometimes defined to be a person whom a railway company, in the performance of its duty as a common carrier, has contracted to carry from one place to another, for a valuable consideration, and whom the company, in the performance of the contract, has received at its station, or in its car, or under its care. Patt.Ry.Acc.Law, § 210. But the payment of fare or of a consideration for the carriage is not necessary to create that relationship, so far as it is involved in an action for a personal injury received while on the train. Where a person goes aboard a railway train in good faith for the purpose of being carried from one place to another, and is permitted by the conductor to ride, the company is liable, in the absence of a special contract, for an injury arising from the carrier's negligence, if the conductor was expressly or impliedly authorized to bind the company by such permission, even though such person was traveling gratuitously, and the conductor had violated his instructions by allowing him to remain on the train. 2 Shear. & R.Neg. (4th Ed.) § 491; Beach, Cont.Neg. (3d Ed.) § 165; 2 Wood, R.R. (Minor's Ed.) 1207; Washburn v. Railroad Co., 75 Am.Dec. 784; Wilton v. Railroad Co., 107 Mass. 108, 9 Am.Rep. 11; Edgerton v. Railroad Co., 39 N.Y. 227; Brennan v. Railroad Co., 45 Conn. 284, 29 Am.Rep. 679; Railroad Co. v. Scott's Adm'r (Ky.) 56 S.W. 674, 50 L.R.A. 381; Waterbury v. Railroad Co. (C.C.) 17 F. 674, note. The fact, therefore, that the plaintiff was being carried gratuitously is immaterial, if the company accepted him as a passenger, and expressly or impliedly agreed to transport him as such.

Nor do we regard as material the question of his inherent right to ride, or whether he should have had a pass or other written evidence of his right to transportation. He was lawfully on the train for the purpose of being carried home, with the consent and by the permission of the conductor. If the conductor had authority to bind the company by allowing him to ride on the train, the relation of passenger and carrier was thus created between him and the company, regardless of the question whether he could have been lawfully ejected from the train or denied the right to ride thereon, unless he is to be regarded as an employé, instead of a passenger. This brings us to the inquiry whether the conductor of the train upon which plaintiff was riding had authority, real or apparent, to create the relation of passenger and carrier between the company and one riding upon his train. A railway company may separate its passenger and freight business, providing certain trains in which people may be carried as passengers, and other trains devoted exclusively to the transportation of freight. In case of such a complete separation between its freight and passenger business, the conductor of a freight train has no implied authority to receive passengers thereon, or to bind the company by his act in so doing. And, again, where one gets on a train made up exclusively of cars appropriate alone to the carrying of freight, he is, under many of the authorities bound to take notice that such train is not intended for passengers, and,...