Berry v. Missouri Pacific Railway Co.

25 S.W. 229, 124 Mo. 223, 1894 Mo. LEXIS 284

• Court: Supreme Court of Missouri
• Decided: February 5, 1894
• Status: Published

Opinions

Alexander Martin, Special Judge.

These separate actions were commenced in April, 1882, under section 2121 of the Revised Statutes of 1879, which constitutes section 4425 of the Revised Statutes of 1889, in behalf of widows to recover damages for the death of their husbands, charged to have been caused by the negligence of appellant, a railway company, in operating and managing its train of cars, while they were being carried upon it.

On Sunday, December 18, 1881, the appellant was operating, by its officers and employee’s, a train and cars on the Jefferson City, Lebanon & Southwestern Eailway, which was under its control as a branch road, between Jefferson City and- Eussellville. The train consisted of an engine and tender reversed, the tender being in the lead, a flat car following the engine, which was itself succeeded by a box car, and four more flat cars. The train was on its way to Jefferson City, and was in charge of a conductor, engineer, fireman and two brakemen. On the flat car next to the engine and in front of the box ear five persons were riding, viz: Green 0. Berry, Christopher Wagner, William Zuendt, Oscar Monnig, and Christopher Gemeinhart. The train had gone about two miles from Eussellville towards Jefferson City; while descending a grade in the road at that point, the tender and engine jumped from the track, followed by the flat car next to the engine along with the box car and another flat car. The flat car next to the engine was thrown so that one end rested on the pilot; the box car was forced over a part of the flat car, and the flat car next to it was lifted from the track. The engine, tender and first flat car were badly broken. The box car and flat car following it were not materially damaged. Upon inspection of the wreck, Berry, Wagner and Monnig were found dead, the two former lying on or under the wreck and the latter lying clear of it. Zuendt was entangled in-the wreck, from which he was taken in an unconscious condition to his home in Jefferson City, where he died from the effect of his injuries eighteen days afterward. Gemeinhart, whose body was scalded and leg broken, was helped from the wreck, and soon after died from his injuries.

These leading facts are undisputed, and about them are grouped the disputed facts, and the disputed inferences from admitted or established facts, which will be considered in connection with the issues to which they relate.

In April, 1882, the plaintiffs, who are the widows, respectively, of Berry, Wagner and Znendt, commenced these actions in the circuit court of Cole county, from which they were taken by change of venue, and finally tried in the circuit court of Osage county, at its April term, 1890. A previous trial terminated in a nonsuit under instructions adverse to the plaintiffs from which an appeal was taken to this court, which will be found reported in 97 Mo. 512.

The petitions are all alike except in the names of the plaintiffs, respectively. It is alleged in these petitions, that the defendant at the time of the accident was engaged in running and operating the branch road already mentioned, between Russellville and Jefferson City; that the deceased husbands of plaintiffs were passengers on the defendant’s train of cars; that, being passengers, they were so injured that they died; that “said injury and death resulted from and was occasioned by the carelessness and negligence of defendant, its' agents and servants, in running and operating its engine and train of cars, on which said deceased was a passenger, in this, to wit: that said agents and servants did negligently, improperly, carelessly and recklessly, operate and run said train, with its tender and engine reversed, and over a newly constructed roadbed, at a highly improper, too great and dangerous, rate of speed, and did otherwise so carelessly and negligently run and manage said train that part thereof was thrown from the track and said train was wrecked; in consequence of which negligence, carelessness, and improper conduct of defendant, its servants and agents,” said deceased were on said December 18, 1881, injured, and from said injury died.

The answers are alike in all cases and consist of a general denial, coupled with a circumstantial statement of matters in defense, in denial, and by way of con-tributary negligence imputed .to the deceased. It is alleged in substance, that on the day of the accident, the train as it started from Jefferson City was a construction or work train, composed of a locomotive, tender and one box car loaded with iron; that the train was taken out for the purpose solely of carrying railroad iron to Russellville, a place about twenty miles distant; and the train as thus made up was not intended for, nor allowed to carry, passengers or other persons than the train men in charge thereof, as the deceased well knew; that when, the train was about to leave Jefferson City, the deceased voluntarily, wrongfully and recklessly, without the knowledge or consent of the conductor and the other* men in charge of the train, got into said box car, for the purpose of being carried to Russellville, well knowing that said work train was not allowed nor intended to carry passengers; that the deceased well knew the existing condition of the road and that there wa¡g no turn table at Russell-ville, and that the train would have to run back to Jefferson City with the engine and tender reversed; that the deceased well knew that riding on a flat or open car was more dangerous than riding in a box car; that the deceased well knew that neither the conductor nor any other person connected, with the train had any authority to carry passengers or any other persons than those employed in managing, the train; that the deceased, without the knowledge or consent of the conductor, got into the box car at Jefferson City, with knowledge that said train was "not allowed to carry passengers; that they refused to get out of it when requested and directed to do so by the conductor, but remained there against his protests and commands, until it arrived at Russellville.

It is further alleged that the deceased at Russell-ville, upon their return, contributed directly to their injuries and death in getting upon the flat car next to the engine, against the protests and commands of the conductor and other trainmen, well knowing that the engine and tender were to be run backward from Russellville over said newly constructed road; that they refused to ride in a box car attached to the rear of the flat car, although they well knew it was safer to ride in the box car; that they would not have been injured if they had not voluntarily and recklessly remained on the flat car.

It it further alleged that the deceased on the Sunday of the accident determined to take a ride to Russellville and back for pleasure; that to that end they applied to the man who had charge of the construction of the road, and whom they knew to be the proper party to direct the movement of work trains which were not to carry passengers, but only materials and supplies, to ascertain if such a work train could go out on Sunday, and if so, if they would be permitted to ride on it; that they were informed by the person to whom they applied that such a train would be sent over the road, but that they could not go on it, because it would not be allowed to carry passengers; that the rules governing the running of such trains forbade passengers from riding thereon; that the deceased, notwithstanding such refusal, information and notice, got into the box car, as already stated, and rode therein free of charge to Russellville, against the wishes, commands and protests of the conductor and trainmen. The answers repeat the circumstances of their getting upon and riding in the flat car from Russellville, alleging that it was done without the knowledge or consent of the conductor and train men; that, as soon as they were found on the flat car, they were notified by the conductor and trainmen' that "the must not ride on it, but must get into the box car, which was, as they were notified, a better and safer place to ride; that, under the circumstances, they assumed all the risks, danger, injuries and death, which resulted from their said rash, willful and voluntary act.

The replies consisted of a general denial of all new matter alleged in the answers.

It will be seen from these pleadings that the plaintiffs seek to recover on the sole ground of negligence on the part of the defendant in running its engine and tender reversed on a newly constructed roadbed, at a too great and dangerous rate of speed, in consequence of which their husbands, while being carried as passengers on the train, were injured and lost their lives. The general denial of the answers put in issue the charge of negligence in operating the train, and the relation of the deceased to the train as passengers thereon as alleged. All the evidential facts specifically pleaded in the answers, except those relating to the countercharge of contributory negligence in refusing to ride in the box car, might have' been admitted under the general denial. . This charge of contributory negligence was put in issue by the reply. It will thus be seen that the pleadings develop clearly enough three main issues to which the. evidence and instructions were directed at the trial, viz.: First. Whether the deceased, while on the train, held such a relation to it as passengers as to enable them or their representatives to hold the company liable for negligence in operating the train. Second. Whether the appellant was guilty of such negligence while operating its train as to be liable for injuries suffered by the deceased. Ihird. Whether the deceased by riding on the flat car, instead of the box car, contributed directly to the negligence, if any, which resulted in their death.

The trial of these issues terminated in a verdict and judgment in each case for the sum of $5,000, from which the defendant therein appealed. When all the evidence on both sides was adduced, the appellant ashed the court to instruct the jury that upon the evidence the plaintiffs were not entitled to recover. This instruction the court refused, and its action in doing so constitutes the principal ground of error, as argued before us and assigned for error. If the court erred in overruling this demurrer to the evidence, then the cases should be reversed, irrespective of the merits or demerits of the record in other matters. Its action on the demurrer comes first before us for review.

Before considering the evidence with reference to the demurrer, it may not be out of place to recall to mind the principles by which trial courts and appellate courts are governed in passing on the nature and sufficiency of evidence necessary to carry and leave an issue to the determination of the jury.

Whether a fact claimed to be evidential in its nature tends to prove an issuable fact, depends upon the natural, necessary or customary relation which it bears to it. In determining this relation, courts can derive little assistance from law books or judicial precedents. The jurist on the bench has no pronounced superiority over the intelligent juryman in divining the relation which exists between physical or social events. Such events do not speak with the' same significance to all reasonable men. They will be found drawing contrary inferences from the same statement of facts. The law takes notice of this truth, and accordingly gives great latitude of inference and judgment to juries as triers of issuable facts. The court can decide the issue as a matter of law, when all facts bearing on it are undisputed, and reasonable men could not differ in their inferences from the facts. But when the facts bearing on the issue are disputed, or -when they are undisputed, but admit of different constructions and inferences, it must be left to the jury. ' Marshall v. Shricker, 63 Mo. 308; Mauerman v. Siemerts, 71 Mo. 101; Charles v. Patch, 87 Mo. 450; Tabler v. Railroad, 93 Mo. 79; Fletcher v. Railroad, 64 Mo. 484; Huhn v. Railroad, 92 Mo. 440; Railroad v. Ives, 144 U. S. 408; Roddy v. Railroad, 104 Mo. 234; Bell v. Railroad, 72 Mo. 50; Nagel v. Railroad, 75 Mo. 653; Petty v. Railroad, 88 Mo. 306; Ostertag v. Railroad, 64 Mo. 421.

When the evidence is insufficient in law to support a verdict a demurrer should be given. Nelson v. Shickle, 3 Mo. App. 300; Charles v. Patch, 87 Mo. 450. A demurrer to the evidence admits not only the facts given in evidence, but every fair and reasonable inference from the facts in favor of the plaintiffs. Wilson v. Board of Education, 63 Mo. 137; Charles v. Patch, 87 Mo. 450; Noeninger v. Vogt, 88 Mo. 589. The court is not at liberty to make inferences of facts in favor of the demurrant to countervail or overthrow either presumptions of law, or inferences of fact, in favor of the other party. Buesching v. St. Louis Gaslight Co., 73 Mo. 219. “In a case where there is no evidence to sustain a material allegation there is nothing for the jury to consider and the court may so declare. But when the facts are disputed, or the ■ credibility of witnesses is drawn in question, or a material fact is left in doubt, or there are inferences to be drawn from facts proved, the case, under proper instructions, should be submitted to the jury.” Kelly v. Railroad, 71 Mo. 609.

“The-question, whether one is a passenger or not, is one of mixed law and fact;.but, the law being tolerably clear, it may be said, as a general rule, that the .issue upon any conflict of evidence is one for a jury to decide and not one to bq passed upon as matter of law by the court.” Shearman & Redfield on Negligence [3 Ed.], sec. 262.

Negligence is likewise a question of mingled law and fact. Its determination is peculiarly within the domain of the jury. “In very many cases the law gives no better definition of negligence than the want of such care as men of ordinary prudence would use under similar circumstances. Of course, this raises a question of fact as to what men of this character usually do under the same circumstances.” Shearman & Redfield on Negligence [3 Ed.], sec. 11.

Some courts have held that negligence is always a question for a jury under proper instructions from the court, even when there is no conflict of fact or inference, except perhaps in the neglect of some statutory requirement. Railroad v. Spearen, 47 Pa. St. 300; Railroad v. Yarwood, 17 Ill. 509; Railroad v. Bill, 22 Ill. 264. But, “when the facts are dearly settled, and the course which common prudence dictated can be clearly discerned, the court should decide the case as a matter of law.” Shearman & Redfield on' Neg. [3 Ed.] sec. 11; Fernandes v. Railroad, 52 Cal. 45. These declarations have received the approval of this court in many of its decisions.

I will now proceed to consider the demurrer in the light of these declarations, bearing upon the respective functions of courts and juries in our system of procedure, being satisfied that much confusion and injustice have resulted from judges failing unconsciously to follow them.

1. It is necessary to settle in the first instance the precise relation which the deceased held to the appellant at the time of the accident, in order to determine the degree of negligence for which it was responsible in discharging its duty to them—whether for slight, ordinary or gross negligence.

On the part of the respondents it is alleged that the deceased held the relation of passengers. This is denied, and it is averred by the answers that they were riding without the consent of the appellant or its agents and employees, and in violation of established rules and express orders.

“A passenger is a person who undertakes, with the consent of the carrier, to travel in the conveyance provided by the latter, otherwise than in the service of the carrier.” Shearman & Redfield on Neg. [3 Ed.], sec. 262.

It will be noticed that there are two essential elements to this legal definition of a passenger. First. An undertaking on the part of the passenger to travel in the conveyance provided by the carrier. Second. A' consent and undertaking on the part of the carrier to carry him on such conveyance.

Whenever these two features occur, the legal relation of passenger and carrier is established, and it is a matter of little consequence by what name it is called. I assume, of course, that the supposed passenger is not in the service of the carrier. The payment of fare is not such a necessary ingredient of this contractual relation, that it can not be waived-, leaving the contract unaffected in all other respects. Neither does the waiver of fare change- the degree of diligence required of the carrier in the discharge of his duty. Railroad v. Derby, 14 How. 468; Lemon v. Chanslor, 68 Mo. 340.

The conflict which exists between the cases determining the contractual relation of passengers, arises from the various ways in which the requisite consent may be established. The debatable territory relates to the liability of railroads for injuries received by persons being carried on freight and construction trains and on locomotives, which are not actually intended for passenger traffic.

I think the cases very generally concur in holding that a person being carried on a passenger train by the invitation or assent of the conductor, is prima facie a passenger, irrespective of the payment of fare, there being no refusal to pay. This conclusion rests on the assumption that a conductor of passenger trains, in admitting and excluding travelers, is acting within the scope of his authority as a conductor, although it may be against the orders and instructions of his principal.

The application of this rule to the conductors of freight trains has been very pointedly denied. Eaton v. Railway, 57 N. Y. 382; Smith v. Railway, 124 Ind. 395. In the former case it is said: “The presumption is that a person on a freight train is not, legally, a passenger ; and it lies with him who claims to be one, to take the burden of proof to show that, under the special circumstances of the case, the presumption has been rebutted.” Wherever this presumption has been recognized, it will be found resting on the assumption that the railroad has divided its business of transportation, and devoted its freight cars exclusively to the carriage of freight. This being the case, the same court adds, in the*decision just cited: “No act of a conductor of

a freight train will bind the company as to carrying passengers, unless the principal in some way assents to it.” The inability of the conductor to give a consent binding on the company, is explained as being entirely outside of the actual or apparent scope of his duty, which it is said relates to. the transportation of freight exclusively.

It is possible that no injustice could attend the enforcement of this extreme doctrine in a state in which the traffic of freight was entirely separated from that of passengers. But I am satisfied that there is no ground for the application of this doctrine in this state; certainly none in this case. There is no evidence that the passenger traffic was separated from the freight traffic on this branch road, as will presently appear. Indeed, I think it can be safely said that there never was a time in this state when the railroads did not carry passengers on their freight 'trains more or less. The mixed or combination train is a well known feature of branch roads. On the main lines of all the roads in this state, passengers are carried, on certain freight trains, not so much for the remuneration of the road, as to accommodate the public between stations near each other. “When carried on these trains the passengers usually ride in a caboose or combination ear at the rear end of the train. These facts belong to the public history of railroad transportation in this state, and are continually appearing in the records of litigation relating to it. Burke v. Railroad, 51 Mo. App. 491; McGee v. Railroad, 92 Mo. 208; Sherman v. Railroad, 72 Mo. 62.

The ground upon which the extreme doctrine of the Eaton case has been denied or distinguished from, is very pointedly stated by Lyon, J., in the case of Lucas v. Railway, 33 Wis. 41. “By making a portion of its freight trains lawful passenger trains, the defendant has, so far as the public is concerned, apparently, given the conductors of all its freight trains authority to carry passengers.”

The mingling of passenger and freight traffic on many of the freight trains of the railroads of the state, would tend to widen the actual or apparent scope of the duties of a conductor on freight trains, as understood by the public at large. In the recent case of Whitehead v. Railroad, 99 Mo. 263, this court held that it was within the scope of the duty of a conductor of a freight train to permit a person to ride. He is the vice principal of the company within the course of his employment. Miller v. Railroad, 109 Mo. 350. The train is in Ms possession and charge. As it moves along he represents the company in the enforcement of its rules and regulations in their application to persons and things for which transportation may be asked. It is not easy to perceive why he is not acting as much within the scope of his employment when he permits a person to ride as when he excludes him. Whether he obeys or violates the orders of his principal in either of these acts, is a fact which should not have the effect of extending or restricting the general scope of his authority as ruler of the train, certainly not as to all persons without notice of any limitations on that authority. The logical consequence of this construction of the scope of a conductor’s authority in charge of a freight train, is to give prima facie to persons riding on it with the. consent of the conductor, the rights and remedies of a passenger. Hanson v. Railway, etc., Co., 38 La. Ann. 111; Burke v. Railroad, 51 Mo. App. 491. Especially is this true in respect to freight trains, which contain a caboose or combination car suited to the transportation of passengers. Railroad v. Moore, 49 Tex. 31. In the absence of information to the contrary, it is more reasonable to suppose that the conductor in giving his consent was obeying the orders of his principal, and not acting in violation of them.

It must be admitted, however, that this prima facie inference of honesty and regularity which naturally flows from the consent of the conductor is open to contradiction and rebuttal by any competent evidence. It is very generally conceded that, when the consent is in violation of his instructions and has been obtained by corrupt and collusive means, it is void, notwithstanding it may be an act within the scope of his employment. Railroad v. Brooks, 81 Ill. 245; Railroad v. Beggs, 85 Ill. 80; McVeety v. Railroad, 45 Minn. 268; Way v. Railroad, 19 N. W. Rep. (Iowa). 828 Indeed, when the consent of the conductor has been obtained by deceit and misrepresentation, it is void, although he may have full authority to give such consent. The rights of a passenger can not be acquired by fraud.

I think it is also very generally conceded that, if a person claiming the rights of a passenger is informed or knows that the conductor consenting to his riding is violating the orders of his principal in doing so, he can not be legally recognized as a passenger, even though he has not been in active collusion with the conductor to defraud the company. Moss v. Johnson, 22 Ill. 633; Railroad v. Montgomery, 7 Ind. 474; Lucas v. Railroad, 33 Wis. 41; Whitehead v. Railroad, 22 Mo. App. 60; Railroad v. Campbell, 76 Tex. 174; Dunn v. Railroad, 58 Me. 187; McGee v. Railroad, 92 Mo. 208; Railroad v. Moore, 49 Tex. 31; Railroad v. Carmichael, 8 S. Rep. (Ala.) 87; Wagner v. Railroad, 97 Mo. 512; Smith v. Railroad, 124 Ind. 395. There is some difficulty in enforcing this principle, which is incident to the varied character of the facts and circumstances, by which it is usually attempted to be proved that the supposed passenger knew that the conductor was acting in violation of duty. It has been frequently held that a knowledge of the rules and regulations of a railroad forbidding passenger traffic on freight trains, necessarily implied a knowledge of the want of authority in a conductor to receive a passenger—that it established a prima facie want of authority in any case, and that the burden-of proving actual authority as against the known regulations or usage of the company rests upon the supposed passenger. Eaton v. Railroad, 57 N. Y. 382; Smith v. Railroad, 124 Ind. 395. This looks very plausible. But, when the train comes along, and the conductor of it invites or permits a person to ride, it is difficult to deny that this fact of itself furnishes some ground at least for him to infer that the conductor had authority to relax the known regulations of the road, in that particular case, otherwise he would not have done it. Dunn v. Railroad, 58 Me. 187; Railroad v. McCloskey's Adm’r, 23 Pa. St. 526.

It is unnecessary to consider in this case whether this fact alone could justify the court in leaving to the jury the question as to whether the conductor had authority to relax the rules. But, when regular fare is paid, the rebutting inference is greatly strengthened, although it must be admitted that if the conductor is forbidden to carry passengers, he is necessarily prohibited from receiving fare. If it can be shown that the company had been in the habit of carrying passengers on freight trains, this fact would tend to strengthen the inference of power in the conductor to relax the rules. The effect of such a usage would be to nullify the rules as to third persons. Jones v. Railroad, 17 Mo. App. 158; Railroad v. Flagg, 43 Ill. 364; Railroad v. Kessler, 18 Kan. 523; Brown v. Railroad, 16 Pac. Rep. 942; McGee v. Railroad, 92 Mo. 208; Burke v. Railroad, 51 Mo. App. 492.

The ultimate test by which all doubtful cases should be determined, resolves itself into m question of good faith on the part of the person claiming to be a passenger, based on the acts, representations and appearances for which the carrier is responsible. If from these acts, representations and appearances done or held forth by the carrier, a person riding with the express or implied consent of the conductor, is justified in believing that this consent is in accord with his duty and authority as a conductor, and not in violation or in fraud of the regulations and rights of the carrier, then he should be recognized in the fullest sense as a passenger. ■ He should not be alluded to as a passenger sub modo. This test is admitted, even in those cases in ■which it has been held that the act of the conductor in giving his assent is outside of the scope of his authority. Files v. Railroad, 149 Mass. 204; Powers v. Railroad, 153 Mass. 188. In the latter case the court remarks: He must be riding “by the authority of the defendant, or by any inducement held out to him by the defendant’s servants, either by its authority or while acting within the general scope of their authority, so that the plaintiff was entitled to treat their action as that of the defendant corporation.” In the former one the court says: “The defendant’s railroad might properly be held responsible for acts done by the freight conductor in the line of his duty, perhaps also for acts done by him in the apparent line of the duty intrusted to him, if such as one dealing with him toould he authorised to treat as done hy authority of the company.”

A person invited or permitted by a conductor to ride on a freight train, may know the general rules of the company 'forbidding passenger traffic on such trains; but under the circumstances of time and place, such as the usages of the company, make up and appearance of the train, and the acts of the conductor in charge thereof, he may. have good reason to believe that the conductor in the particular case had the right to do as he had done; the act being within the actual or apparent line of his duty. A knowledge of the general rules prohibiting passenger transportation is not necessarily a knowledge of the want of authority in the conductor in any particular case, although it is strong evidence tending to establish notice of such want of authority, sufficient, as we have seen by some authorities, to impose the burden on him of rebutting, the inference. It is the province of the jury to determine the fact when it is subject to conflicting inferences.

If, however, the supposed passenger is informed directly by a superior representative of the company that the conductor of the particular line upon which he seeks to ride has no authority to receive passengers, it would be difficult to accord to Mm the good faith requisite to make him a passenger upon the sole consent of the. conductor. Outside of any circumstances tending to affect the credibility due to such information, the court would seem justified in denying him as a matter of law the rights of a passenger. Railroad v. Campbell, 76 Tex. 174; Robertson v. Railroad, 22 Barb. 91; Railroad v. Montgomery, 7 Ind. 474; Moss. v. Johnson, 22 Ill. 633.

Considering the evidence in pursuance of these views of the law, it is proper for us to determine -whether there is any evidence tending to prove that the deceased were being carried with the consent of the conductor, irrespective of a notice or any want of authority in him to do so, or for any fraud or collusion with him to that end. The point of inquiry must refer to the instant of time at which the accident happened, whatever relation they may have held to the defendant when starting. The evidence of what transpired is competent on this point only in so far as it bears upon the relation at the time of the accident. The same person may be a trespasser at one stage of the journey and a passenger at another stage. Sherman v. Railroad, 72 Mo. 62.

Now, it seems clear from the evidence on both sides that the deceased, at the time of the accident, were being carried with the actual consent of the conductor. Mr. Vaughan, the conductor, substantially admits this. He says that one of them came to him at Russellville and asked as to whether they would have time to dine at that place; that he informed them that they would have twenty minutes, during which time the train would be switched; that they asked him not to leave them; and that he told them they would not be left if they were back at that time; that just as the train was starting some of them came to him and asked him if he was ready to go; that he replied that he was; that thereupon they got on an empty car next to the engine. It is true that he advised them, as he says, to go into the box car as a safer and better place. But this was advice to them presumably as passengers; and there is not a particle of evidence to support the inference that they were on the train at that time against his orders or without his consent. Indeed, the answers, although denying his consent at the beginning of the trip, admit it at Russellville, in the special plea of contributory negligence. “And when they were found on said flat or open car by the said conductor and other train men, they were notified and warned that they must not ride on said flat or open car but must get into the said box car, which was, as they were then and there notified and warned, abetter and safer place to ride.” There is no evidence that he ordered or requested them to get off the train; on the contrary he admits handing them up on the flat car a plank for a seat, to be occupied by them in their journey back to Jefferson City. Neither do I find any evidence in the record to prove that the consent of the conductor was obtained by any misrepresentation or fraud practiced upon him, which would tend to avoid his consent.

It is claimed by the appellant that the conductor had no power to consent to the relation of the deceased as passengers on this train, that any consent given them was void as being in violation of the rules and orders of his principal. Undoubtedly the company had the right to divide its traffic and exclude passengers from its work or construction trains. This could be attained by express regulations or orders to that effect, or by uniform usage. The train upon which the deceased embarked was undoubtedly a work or construction train, irrespective of any other purpose for which it might be taken by the public. Mr. Dewey, who had full authority under the superintendent over the movement and use of work or construction trains, testifies positively that, according to the rules- and orders governing such trains, passengers were not allowed or carried on them. He also testifies on ’cross-examination that orders or instructions to that effect were given to Mr. Vaughan and his crew in relation to such trains. Mr. Vaughan, who had been a conductor of the work and construction trains before passengers were carried on the road, as well as after, testified that passengers were not allowed to be carried on such trains, which at that time were run only on Sunday. There is no substantial evidence to contradict this in the record. The taking up of Kelly’s ticket on the same train under the circumstances detailed by Vaughan and Kelley would not tend to establish in itself a usage of. carrying passengers which would be binding on the company as against its rules and orders. I think it must be conceded that the consent of the conductor to the admission of the deceased as passengers, was in violation of the orders and instructions of his principal, however clearly it may have been within the scope of his apparent agency.

It is next in order to consider the evidence tending to establish a knowledge on the part of the deceased, of the conductor’s actual want of authority to admit them as passengers. This is the most important issue of fact in the case, constituting, as it were, the pivotal point of the whole controversy as it was developed before us. It is contended by the appellant that the deceased had notice of the conductor’s want of authority in three distinct forms of notice and information: First. In the make up and use of the train as it left Jefferson City on the morning of the day on which the accident occurred.. Second. In the advertisement of the press. Third. In the direct and positive notice of the road master, conductor and employees.

I will consider the evidence relied upon as supplying these three forms of notice.

The make up and purpose of the train as it started from the depot at Jefferson City is not involved in any doubt; although the answers have erroneously substituted for it there, the make up of the train at Dulle’s Mill, some distance after it had left the depot and started on the branch road. As it left the depot, it consisted of several freight cars loaded with railroad iron, and a combination coach in the rear, one end of which was designed for carrying baggage and express matter, the other for carrying passengers. It appears in the testimony without any conflict, that this was the incidental make up of the train, which had been carrying freight and passengers ever since the road had been opened for public transportation; also that it was in charge of the same conductor and crew. There never had been a train on the road operated exclusively for passengers. The road was new, the traffic necessarily small, and passengers and freight had always been carried on the same train. The use of this train on Sunday for any purpose whatever had never been designated on any time card or public notice. As it stood in the depot, the combination coach which had been used for carrying passengers on week days, constituted unquestionably by its design and previous use, an apparent invitation to passengers who might be ignorant of the orders limiting its use on that day. The conductor had a train which was as much adapted and designed for carrying passengers as freight. Its make up and appearance constituted facts from which persons desiring to travel on that day, might reasonably infer that passengers would be carried as before. The fact that it was carrying railroad iron, presumably belonging to the company, if that fact was known to the deceased, could not furnish very strong grounds for the inference that the train was not for passengers also, as against the invitation implied in the passenger coach, and the previous use of it in connection with freight trains..

I am satisfied that the make up and previous use of the train did not constitute such notice of the limitation on the power of the conductor as would have justified the court in holding that the deceased had notice of the limitation as a matter of law. The evidence very strongly tends to prove that the conductor saw the deceased in the combination coach before it left the depot. Mahan says that he saw Vaughan going in and out of the caboose, meaning the combination car; Mr. Vaughan himself testifies: “I was in the combination car before it started from the depot; I - saw some persons in there, but I can not remember who they were; I remember Zuendt was in there, but I don’t remember any of the others positively; I think I saw Wagner and Berry, but I am not positive.” Neither the conductor nor any other employee at the depot acquainted the deceased with the limitation on the use of the train for passengers.

It is contended by the appellant that the public had been substantially notified by advertisement in the public press of Jefferson City that passengers would not be carried on any construction train, and especially the one run on Sunday. The notice in the press consisted in the publication of the time table, which notified, the public only that trains would be run on the road at stated hours daily except Sundays. This notice presumably related to the combination trains which carried both freight and passengers. It was silent about running any trains on Sunday or the character of such trains, if run. It might reasonably be inferred from a knowledge of the time card that this was an extra train, but similar in its use to the previous combination trains. But however this may be, there is no direct evidence that any of the deceased ever saw the advertisement of the time table, nor that any of them were patrons of the newspaper containing the advertisement. Their actual knowledge of it rests upon doubtful inferences, which belong peculiarly to the determination of a jury.

It is claimed by the appellant that the deceased received imperative orders to get off the train at Bullets Mill, which was about a quarter of a mile from the Jefferson City depot. It seems that as the train reached Dulle’s Mill, an accident happened by which the second freight car in the train was derailed. This rendered it impossible for the conductor to continue his trip at once with that part of the train in the rear of the derailed car. Accordingly he decided to go on with the single box freight car filled with iron, and to take on some car loads of iron from another place on the road; which fact he communicated to Mr. Dewey, the road master, who had ordered out the train. After the derailment, which prevented the combination car from going on, the deceased husbands of the plaintiffs, along with Mahan, Monnig, Kelly and possibly some others, removed from the combination car into the remaining box freight ear, which was next to the tender, for the purpose of continuing their journey. Wagner and Zuendt took with them a barrel and a box containing provisions and supplies for the use of railroad workmen in a boarding car at Russellville.

It is argued by appellant that the train as thus left, with only one box car filled with iron, was in its make up and appearance a notice of the limitation of the power of the conductor to receive passengers. But it must be borne in mind that this appearance of the train took place on the journey, and that it could not affect the previous relation of the deceased, if they had been received as passengers without notice of the limitation. Before the train started from Dulle’s Mill, the conductor observed these men, who had got into the box freight car, and which manifestly was not adapted to the transportation of passengers like the combination car they had left. As conductor of the train,- he undoubtedly had the right to refuse to carry on his disabled train anyone, including those who had started in the combination car. If he had exercised his authority in that behalf, by imperative orders, without going so far as to forcibly eject them from the train, those riding thereafter in violation of his orders, would undoubtedly have retained no rights against the company as passengers.

It is claimed by appellant that the conductor’s action at Dulle’s Mill is not susceptible of any other construction than that of a positive and imperative order forbidding or discontinuing their relation as passengers. I have examined the testimony of Yaughan, Mahan, Kelly, Kolkmeyer, and others, .in reference to what transpired between the conductor and the parties in the box car, who were desirous of continuing their journey, and I am not able to find in it the- clear and positive declarations which belong to an imperative order, such as it was the duty of the conductor to give, if he wished to be understood as forbidding or discontinuing the relation of the deceased as passengers. When he saw them in the box car, he testifies that he requested them to get out; that they asked him why; that to this inquiry he answered that he could not carry them; that they wanted to know why he could not carry them; that he then told them that he would have no place for them to ride back except upon the engine, and that the engineer would not carry them; that to this they answered that 'they would take their chances about getting back, meaning by this that they would take their chances of returning on empty freight cars or by some independent conveyance.

The evidence is fairly susceptible of the construction that the conductor objected to their continuing their journey, only on the ground that there would probably be no means of returning except on the engine, which could not be permitted; and that, when they took the chance of returning on freight cars or by a conveyance of their own, his objection fell short of the intention and effect of an imperative order. This is the construction placed upon it by Mahan, who dropped off the train, and who in his testimony explains why he did it: “While I didn’t take it that he ordered me directly to get off, I saw that he didn’t want us to go.”

This construction is also corroborated by what subsequently took place before the train reached Russell-ville. It stopped at the Moreau tank, about eleven miles from Jefferson City, at which place Gemeinhart, who was a pumper at that station for the railroad, got on. Then the conductor saw the deceased in the box car, along with Kelly and Monnig. Instead of ordering them out, he asked them as to what had become of Mahan who had dropped off as the train left Dulle’s Mill. Upon being informed of that fact, he said he hoped that Mahan had not got mad about it, as he had only done his duty. He expressed no dissent whatever to the deceased continuing their ride. Mr. Kelly, who was returning to Russellville on the latter half of a round trip ticket, offered his ticket in payment of fare. The conductor admits that he took it jip, but says that he destroyed it, remarking that it was not good on that train. This statement and act of destruction, which were said to have taken place in the presence of Mr. Kelly, are substantially contradicted by him; and it is evident that he considered himself a passenger riding, not only with the consent of the conductor, but on the regular fare of a passenger.

When the train reached Russellville, the supplies belonging to Wagner and Zuendt were put off by the crew and received by Mr. Benjamin, who had charge of the boarding car at that place. It. is worthy of notice that in all the interviews between the conductor and the persons claiming the rights of passengers, the conductor made no declaration or intimation that he was without authority to receive them as passengers, or that it would be in violation of the rules or orders of the company to carry them on his train. It is possible that the evidence might be construed by the jury as equivalent to an imperative order instead of an advisory request. But I am convinced that the court could not do this; and that it committed no error in leaving the issue to the jury.

It is claimed by the appellant that on Saturday, the day previous to the accident, the deceased were informed by Mr. Dewey, the road master, who had authority over the movements of the Sunday train, that passengers were prohibited on it, and a permit to them to go on it was expressly refused.

On examination of the evidence o'f Mr. Dewey I find it direct and positive to the effect, that on Saturday, while he was in the store of Mr. Wagner in Jefferson City, he was asked by Mr. Wagner whether a construction or work train would go out on Sunday; 'that on being informed by Mr. Dewey in the affirmative, he remarked that he would like to go out on it, stating that it was a lazy day with him, and that he had some business out there; that he was informed by Mr. Dewey that passengers were not allowed on it; that it was a work train to carry material only; that he (Dewey) could not give his consent to his going on the train; but would give him a free pass to go on Monday following. It does not appear from the evidence that either Berry or Zuendt were present at this interview or that it, or the purport of it, was ever communicated to them. It is true that Zuendt was a son-in-law and partner of Wagner in the grocery business at Jefferson City, and that Berry and Wagner were intimate friends; but I am enable to agree with counsel for appellant that the inference that the information in question was communicated to them, is so irresistible, that the court would be justified in holding it an established fact without submission of it to the jury. Neither on any principle of agency or necessary association of facts, can I perceive any right in the court to presume as a matter of law that Berry and Zuendt were informed of the interview. Actual knowledge or notice as a matter of fact, can not be presumed by the court as an inference from other facts, but must be left to the jury. Buesching v. St. Louis Gaslight Co., 73 Mo. 219. Accordingly, I am satisfied that the court did not err in overruling the demurrer to the evidence, so far as this point is concerned, in the cases of Berry and Zuendt.

As to the case of Wagner, the aspect is somewhat different. The evidence is positive and direct that Wagner was informed by Mr. Dewey that it was against the regulations or orders of the company to admit passengers on construction trains; also that he could not be carried on the particular construction train going out on the next day. In his inquiry and request to ride on this train, Wagner recognized Dewey as having the authority to speak for the company, and he received from him an answer refusing permission to ride, on the ground that passengers were not allowed to be carried on the train. The information which was given by Dewey and said to have been received by Wagner, leaves no doubt about its meaning, which must have given him to understand that the conductor was without authority to receive him on the train.

It is urged by appellant that this uncontradicted evidence destroyed the plaintiff’s right of action, and that the court erred in overruling the demurrer and submitting the case to the jury. In considering this point, it must be remembered that this court has not the privilege of seeing the witness or hearing him testify ; and that it is not acting on the demurrer in the first instance, but only in reviewing the action of the lower court, for the purpose of determining whether that court in exercising its functions as a trial court has committed reversible error.

There is a demurrer to the evidence upon which an appellate court can act with as ‘much safety as the trial court, which hears the evidence and sees the witnesses before it, viz., a demurrer interposed on account of an entire absence of proof or reasonable inference from proof, to support some, material averment in the case necessary to constitute a cause of action. When all proof or inference from proof is wanting to make good a link in the chain of facts necessary to constitute a cause of action, it is the duty of the appellate court to adjudge the demurrer well taken irrespective of the action of the lower court, and to render its judgment accordingly. But when a demurrer is interposed for the reason that some evidence is present, which, being uncontradicted, goes to destroy or rebut the prima facie import of facts proved or admitted, which tend to sustain a link in the chain of necessary facts, the appellate court can not act with as much confidence in the justice of its action; because it must accept the rebutting evidence as absolutely true, being without the power of weighing evidence or disbelieving witnesses. Indeed, we have a line of decisions in this state which seem to justify the submission of all such cases to the jury. Hipsley v. Railroad, 88 Mo. 348; Brown v. Railroad, 13 Mo. App. 462; Sappington v. Railroad, 14 Mo. App. 86; Kenney v. Railroad, 80 Mo. 573; Wise v. Railroad, 85 Mo. 178.

It is said to be the right and province of the jury to decide all such issues; and that the sanction of a demurrer by either trial or appellate court would result in depriving the parties of the benefits flowing from a legitimate exercise of the right. The action of the trial court in overruling a demurrer in such cases would naturally indicate that the court for good reasons was persuaded that the- truth of the rebutting evidence might well be doubted by the jury. Accordingly it has been held by this court that ‘ ‘when the credibility of a witness is drawn in question,” the ease under proper instructions should be submitted to the jury. Kelly v. Railroad, 70 Mo. 609. Of course the action of a jury in discrediting testimony can be set aside by either the trial or appellate court, when its right in that behalf has been abused or arbitrarily exercised. Hipsley v. Railroad, 88 Mo. 348. It has been held that there must be some reasonable basis for an instruction pointing to the discrediting of a witness or witnesses. Iron Mt. Bank v. Murdock, 62 Mo. 70; White v. Maxcy, 64 Mo. 552; State v. Elkins, 63 Mo. 159.

I think there ought .to be in all cases some reasonable ground for doubting and discrediting uncontradicted testimony. In the absence of reasonable doubt or suspicion the action of the jury in discrediting testimony should be accepted as the result of mistake or manifest prejudice. Lionberger v. Pohlman, 16 Mo. App. 127. Perhaps on authority of the decisions cited, the trial judge was justified in overruling the demurrer in the case, without reference to any reasonable basis for discrediting a witness, but upon the doctrine of said decisions, that every issue supported by prima facie intendment or inference, although rebutted by uncontradicted testimony, should be left to the jury. But, however that may be, I am inclined to hold in this case that there was what has been recognized by this court as a sufficient basis for the jury to doubt and discredit the position and unqualified import of Mr. Dewey’s testimony.

It appears that Mr. Dewey, at the time he gave his testimony, was in the employ of the appellant, not as road master, but as engaged in some work not definitely indicated by him. The natural desire of an agent to please his principal by serving him effectively, coupled sometimes with the fear of discharge, may reasonably operate as a basis on the independence and impartiality of utterance which should characterize the witness stand. The relation which a witness bears to the parties, as well as his conduct on the stand, is one of the well recognized facts affecting the weight and credibility due to his testimony. McAfee v. Ryan, 11 Mo. 365. It may also be remarked that the lips of Wagner, to whom Dewey’s message was delivered, were closed in death, and that he was in a condition to testify without the slightest fear of contradiction. The possession of absolute power is always liable to abuse, if it does not impliedly invite it. In like manner the knowledge on the part of a witness that no one can appear to contradict or qualify his testimony is apt to give him a feeling of over-confidence in his deliverances, which may operate unconsciously on him as a license for exaggeration and extravagance of statement.

Another incident may be alluded to in this connection, testified to by Mahan, who represents the deceased, while at the depot and before boarding the combination car, as soliciting and persuading him to go with him on the train. This was hardly natural for them to do, if they had received the positive message of Dewey forbidding all transportation of passengers on the train. It is conceivable that they entertained the design of boarding the train against the known orders of the company, but it is hardly natural that they should have extended under the circumstances such pressing invitations to innocent bystanders at the depot.

Moreover, while the train stood at the depot with its combination coach suited to the transportation of passengers, it seems several others entered it besides the deceased, for the purpose of transportation, including Kelly, the Mahan brothers, and some others not named. Nothing- was done or said by the conductor or his crew against their going, no closing of the doors against passengers, no warning or notice given to them not to get in, or to get out after they had entered. The conductor, at least, is proved to have seen all this; nevertheless he and his crew acted precisely as on week days, when there existed no orders against carrying passengers on the train. His conduct is not easily reconciled with the existence of such positive orders on him as Mr. Dewey testifies to. - Under all these circumstances, I am convinced that the trial court did not err in allowing the case to go to the jury so far as the issue of the relation of the deceased to the train is concerned.

II. Was the appellant guilty of negligence in operating its train in the manner alleged in the petition? The appellant is not charged with negligence by operating its train with the engine and tender reversed. This it had the right to do. ■ Neither is any negligence imputed to it, in having or maintaining a newly contracted roadbed. All roadbeds must be newly constructed at one period of their existence. The contention of the respondents is that the train was negligently run at a dangerous rate of speed for such a train and on such a roadbed. The character of the road and the make up of the train are therefore necessary factors in determining the rate of speed at which the train could be safely run. There is no conflict m the evidence about the make up of the train at the time of the accident. The engine and tender were reversed, with the tender in the lead of the train. Neither is there any material conflict of evidence about the grade of the road, which the train was descending at. the time of the accident, it being from fifty to sixty feet to the mile, agrade admitted by the witnesses to be steep. The nature of the roadbed is not in dispute. It had been originally built ten years before, but had not been used any. On top of this old roadbed fresh earth had been placed for the new structure; its width had also been extended in the same manner, making about six inches of fresh earth in the centre and somewhat more at ¡the sides. Trains had been running on it about two months. -It was surfaced and leveled up, but not ballasted. As to whether the track was straight or curved to any material extent in approaching the place of the accident at Russellville, there is some conflict of evidence. The conductor, engineer, road master, railroad commissioner and contractor all concur in representing the track without any curve whatever within a quarter of a mile west of the place of the accident. In this they are supported by the map of the route of the road on file in the record. But A. H. Thomas, a witness for plaintiffs, who reached the scene of the wreck from Russellville in less than half an hour after the accident, testified that the track “curved a little south, a small portion, and then it curved north until it struck the cut; the cut was about half a mile from the place of the accident, then it continued to curve until it reached Russellville.”

On cross-examination he was asked, “How much of a curve is there for five hundred yards west of where the accident occurred; to which he answered, “I suppose a hend of two feet, but right down where the train run off there was an extra curve. I saw the extra curve at the time I went down to see the wreck; that extra bend was to the extent of about six inches, and extended about one hundred and fifty feet west.” E. D. Stone, a locomotive engineer, who made his first trip over the track with another engine immediately after the accident, testified that the track was not straight from the place of the accident to the top of the grade; that the track was straight from between a quarter and a half of a mile, “then the road curves to the right for about a quarter of a mile, and then it curves to the left for some little distance, and that brings you into the cut at the top of the grade.” Under this state of the evidence, although preponderating in favor of the defendant, I think the court acted properly in leaving the question of fact to the jury, as well as the inferences to be drawn from the fact as found by them. If there was any curve at all between the top and bottom of the’ grade, its effect on a descending train was a truth in physics, from which the jury were at liberty to make reasonable inferences applying to the case.

In respect to the foregoing admitted facts, it is sufficient to say that they furnish ground for inferences of greater or less force bearing on the speed with which the train could be safely run. Some of the witnesses testify that there is more danger incident to running a train with the engine and tender reversed; that the tender; is lighter than the engine, and more likely to be thrown from the track when pushed by the engine instead of being drawn by it. The witnesses gave their reasons for their inferences, which it must be admitted do not always add any weight to them. Other witnesses testify that in their opinion there is no more danger incident to running a train'with the engine and tender reversed than in the regular way, unless there should be obstructions on the track. There is also some conflict of inferences drawn from the fact that the road was new. It is said by some that it is liable to spring, giving to the train going over it an irregular jumping motion.. While others say that a new roadbed such as described in the evidence, will safely admit any degree of reasonable speed in trains passing over it.

In regard to the speed of the train the inquiry presents two aspects. One of them concerns the actual speed at which the train was run; the other relates to the degree of speed which was reasonable and safe with the particular train and on the particular road.

As to the actual speed of the train at the time of the accident, the evidence is necessarily conflicting. Each wdtness gives his best knowledge and impression, and it is for the jury to determine the fact. James Scruggs, the brakeman, who was familiar with the speed of trains when timed by indicators, testifies that this train was running at the rate of about twenty miles an hour. Wiley, the fireman, thought it was running at about fifteen or eighteen miles an hour. He declined to say positively that the train was not running at the rate of twenty-five miles an hour, but gave it as his judgment that it was not running that fast. Vaughan, the conductor, testified that it was running at the rate of twelve or fifteen miles 'an hour.- Rogers,-the engineer, places the rate at twelve or fifteen miles an hour, and alludes to the fact that the fireman was not thrown down when he jumped from the train. As bearing on this point it may be remarked that the train when wrecked was nearing the foot of a steep grade down which it had been running with the steam shut off and brakes unset, for about three quarters of a mile. It appears also that immediately before the accident happened, the brakeman, Scruggs, had just got to the brakes on the box car, for the purpose of setting them. The violent wreck which the engine and tender suffered, and the distance they ran on the ties after the derailment, indicated to some extent the speed of the train. The court could not as a matter of law decide what the actual speed of the train was at the time of the accident.

As to the speed with which the train could safely be run at the place of the accident, the evidence is also conflicting. E. D. Stone, the locomotive engineer already mentioned, testifies with particular reference to this train and road; that it would not be safe to run a train with the engine and tender reversed down this grade at the rate of eighteen miles an hour; “that an ordinarily prudent railroad man would not run his train backwards, as described above, down grade, at as high a rate of speed as fifteen miles an hour.” The witness gives as a reason in support of his'last statement, “that in backing up an engine and tender, the tender being the lightest, and you reach a high velocity of speed, the motion of the water in the tender causes an immense vibration of the spring underneath the tender, which causes" the tender to vibrate up and down, which makes the tender strike lighter, and the wheels in striking an obstruction, such as a low point in the track, will cause the wheels to jump up, and in going at the rate of speed named above, would cause the hind wheels of the tender to jump the track.” The witness admits that if the tank was full of water the vibration would not be so great. The evidence tends to show that the tank was nearly full of water, and that there were four and a half tons of coal in the tender. The qualifying effect of this evidence on the theory of Mr. Stone was proper enough, to be considered by the jury, but it could not legally destroy his testimony.

A. H. Thomas, a river engineer, with two years experience as a locomotive engineer, testified that it would be imprudent to run a train of cars with the engine and tender reversed along the place of this accident at the rate of fifteen, miles an hour. He thought that ten or twelve miles an hour would be pretty fast to be prudent and safe.

On the other hand Mr. Rogers, the engineer, testified that it was not dangerous to run at the rate of speed the train was running, viz., twelve or fifteen miles an hour, although down grade. Mr. Dewey, the road master, and a locomotive engineer of experience, testified that he would consider it perfectly safe to run this train as made up at any rate of speed up to twenty miles an hour. Gren. Harding, former railroad commissioner, thought it safe to run the locomotive and tender backwards over that part of the road at the rate of fifteen to eighteen miles an hour. Wiley, the fireman, witness for plaintiffs, says that he would not consider it dangerous to run this train at the rate of twenty five miles an hour, unless there were obstructions on the track; and that it would be no more dangerous to run it at the rate of twenty five miles an hour than at ten miles an hour, if the track was-clear. In view of this conflict of evidence and inference, bearing on the question of negligence in operating the train, I am convinced that the court committed no error in leaving that issue to the jury.

It is true that none of the witnesses seem to be able to give the actual cause of the accident. But this can not help the appellant on his demurrer. When a railroad carrier undertakes to carry passengers, and the train on which they are being carried leaves the track, where alone it could be operated with safety, by reason of which they are injured, the derailment, of itself, constitutes prima facie evidence of negligence. Edgerton v. Railroad, 39 N. Y. 227; Yonge v. Kinney, 28 Ga. 111. The burden is on the carrier to rebut the presumption of negligence. Bowen v. Railroad, 18 N. Y. 408; Redfield on Carriers, sec. 341. This burden may be rebutted by proving that the accident was produced by a cause against which human prudence and foresight could not guard. Bowen v. Railroad, 18 N. Y. 408; Scott v. London Dock Co., 34 L. J. Ex. (N. S.) 220. This aspect of the contention ordinarily presents an issue for the determination of a jury. If it should appear in the evidence of the accident itself that it was thus produced, the court might in a clear case rule the plaintiff to a nonsuit at the conclusion of his testimony. Christie v. Griggs, 2 Camp. 79. But I do not conceive that the defendant conclusively rebuts the presumption by the testimony of any number of witnesses to the effect that they are ignorant of the precise cause of the accident. Under such circumstances this issue must go to the jury.

III. Next will be considered whether the deceased by their own negligence contributed directly to the cause or causes of the injuries which resulted in their death. It is claimed by the appellant that they did this by getting upon and remaining on the open freight car instead of the box freight car immediately in the rear of it. Whether they were guilty of contributory negligence should be determined in the light of the facts existing and known to them before the accident. Did they do, or omit to do, anything in the light of these facts which, as reasonable and prudent men, they must have known would likely or probably result in injury to themselves1? This is believed to be the prevailing test.

It is contended by appellant that the' open freight car was a more dangerous place for them than the box car, for the reason that it was without side or end boards or inclosures of any kind, to prevent them from being thrown from it by the jar and shock of the accident. This seems to be a plausible inference. But on the other hand it may be said with some degree of plausibility that the inclosure of a box car has its disadvantages in preventing the exit of passengers in the presence of coming danger. "Wiley, the fireman, on the happening of the accident, saved himself from impending danger by leaping from the engine. The conductor was saved, not because he was inclosed in a box car, but because the box car was not seriously damaged by the wreck. Scruggs, the brakeman, who, according to his evidence, must have been on it, or getting upon it, for the purpose of setting the brakes at the time of the accident, was not injured. Baker, the brakeman, was on an open flat car next to the rear, but was not thrown from it or injured by the shock of the derailment. Even if the car occupied by the deceased had been inclosed, it is pretty certain "that they would have been crushed by the box car behind them, which Mr. Vaughan says “was thrown off the track by going over the flat car and engine.” A collision between the two boxes would have endangered the lives of the occupants of both. In some accidents a front car on a train is more dangerous than a rear" car. In others a rear car is more exposed. No one has ever been held guilty of contributory negligence because he occupied any particular car on a train, unless he did so in violation of the known regulations or orders of the company. O'Donnell v. Railroad, 57 Pa. St. 239; Sherman v. Railroad, 72 Mo. 62.

A person may occupy such a place of danger under a train, and unknown to the company, that the court will be justified in declaring him guilty of contributory negligence as a conclusion of law. Ostertag v. Railroad, 64 Mo. 421. But the car on which the deceased rode, when considered with reference to the accommodation of passengers on the train, or the conductor’s consent, would not support such a conclusion. Mr. Vaughan testifies: “When I saw them (the deceased) upon the flat car, I threw them on a nail keg, a spike keg and a board, and asked them to throw them back in that box car and make a seat of them; they replied, I think it was old man Wagner or Berry, that they would rather ride on a flat car; I said I would rather they did not, that it was more comfortable, safer, and better, in this box car, and I would rather they went in there; I think it was Mr. Berry who then said: ‘We will ride out here; we want to look at the country; this is old land of mine along here, and I want to see it.’ I left them and told them to put the plank and kegs in at the window of the box car; that they could go right through the iron window, used for putting in iron, at the end of the car; I didn’t put the plank and kegs in at the side door of the car, because the door on the side that I was on was closed up tight.”

There is evidently nothing imperative in this language. The use of the word “safer” may well imply a caution or warning against danger as incident to the flat or open car. But this feature of the conversation is contradicted by a deposition of the witness, in which he gave an account of the interview as follows: “I told them (the deceased) that they had better get into the box car which was next to the flat car, as the ride would be pleasanter and would be better in every way, and they, Wagner and Berry, replied, no, they would rather ride on the flat car, as they liked to look at the country.” It will be noticed that the word “safer” is left out. If the interview was correctly given in the deposition, it was destitute of all warning against danger, and was nothing more than some friendly advice looking to the pleasure and comfort of those to whom it was addressed.

The purport of this interview either as a warning against danger or as friendly advice, that the deceased had better occupy the box car, is materially contradicted by the testimony of the brakeman Scruggs. It will be observed that Mr. Yaughan in his evidence felt it necessary to explain his conduct in handing the board and kegs up to the deceased on the open car when he intended them for seats only in the box car. This explanation consists in the statement that the side door of the box car was closed, by reason of which it was necessary for him to hand them up on the flat car, from which they could be put into the box car at the small opening in the end. Scruggs, who was present, says: “I was in the box car next to the flat car looking out of the door, when Yaughan put the plank up on the flat ear; I could hear them talking but could not hear what they said; if it had been intended to put the plank in the box car, it would have been most convenient to have put it in at the side door; the side door of the box car was open and I was standing looking out of it.” This was necessarily the same side from which Yaughan put up the planks, otherwise Scruggs could not have seen him. The message of Scruggs to the deceased while riding on the open car contained no intimation of personal danger, but was advisory only as to their personal comfort: “I told them the cinders would fly back on them, and that it would be uncomfortable riding there; I told them that they had better get into the box car,- that it would be a better and more comfortable place to ride; they said they wanted to look at the country.” Some of the deceased were sitting on the plank thus furnished to them by the conductor while the others were standing near, all in the open car, in sight of the conductor, just before the accident. Mr. Vaughan says: “After we started I had nothing further to say to the men; I was standing at thp window, with my arm resting on the side of it, at the front end of the car; I was looking in the direction the train was running; I saw them sitting there, and just before the wreck happened Berry waived his hand over that way (indicating); I don’t know what it was he was showing to them; they were looking at the country; the train left the track at that time.”

It thus appeara that the deceased did not occupy the flat car in violation of any known rule of the company or imperative order of the agents of the company in .charge of the train. As to whether there was any monition against the danger, the evidence is in conflict. The evidence strongly tends to show that they remained on the flat car with the consent if not the approbation of the company’s agents. Under these circumstances, the question of contributory negligence was properly left to the jury. In reaching this conclusion I am only following the decision of this court in this case when previously before it. 97 Mo. 512. In that decision the court held that upon the evidence, not materially differing in its character from the evidence before us, that it tended to show, among other things, “that there was no connection between the presence of the deceased on the flat car, and the derailment of the engine and tender.” In other words, the derailment was the causa causans of the injuries; to which the presence of the deceased on the flat car contributed too remotely, if at all, to deprive them or their widows of their rights of action therefor. Whalen v. Railroad, 60 Mo. 323; Meyers v. Railroad, 59 Mo. 223.

There is some evidence tending to show that the deceased during the ride and at Russellville had, in a social way, taken some drinks from a bottle containing whiskey; but there is no proof of intoxication as to any of them, nothing to indicate that they were deprived of the reason and prudence of sober men.

IV. It is next in order to consider whether the trial court erred in giving the instructions under which the, case was submitted to the jury. It will not be practicable to include in this opinion a review of all the instructions given and-refused. It will be sufficient t<? notice only the most important ones, which are involved in the conflict of argument before us.

I will first consider the instructions given in the case of Virginia T. Berry, as that was tried first and by itself. The first instruction, given at respondent’s instance declares that, if Berry was on the train at the time of the accident with the knowledge and consent of the conductor, for the purpose of transportation, the appellant’s servants were bound to exercise toward him the care of ordinarily prudent persons in running and managing the train. The second instruction given at respondent’s instance was similar to the first, with the qualification that it declared him to be a passenger if he was on .the train for the purpose of transportation, with the consent of the conductor, irrespective of the nonpayment of fare.

These two instructions, outside of the measure of care required of the carrier, are legally unobjectionable, in thus declaring the prima facie relation which a per - son holds to a railroad train by reason of his presence on it for the purpose of transportation with the consent of. the conductor. If these two instructions stood alone in the case, they might be subject to the criticism of excluding the theory of the defense, which denies the relation of carrier and passenger, when the person carried has been informed or knows that the conductor has no' rightful authority to consent to his transportation. As to the measure of care mentioned in them, they are subject to a criticism (which, however, is no ground of error so far as the appellant is concerned); that they require only ordinary care of the carrier to a passenger instead of the highest degree of care imposed by law on common carriers. The first objection alluded to is perhaps corrected in the fifth instruction given at respondent’s instance, in which the duty of ordinary care, mentioned in the first and second instructions, would seem to be predicated on an absence of notice of any want of authority in the conductor to give his consent or in absence of collusion with him to defraud the company. ' It reads as follows: “When the rules of a railroad company forbid carrying passengers on its freight or construction trains, but if the conductor has the train in charge and relaxes the rule, and permits passengers to be carried, the railroad, in the absence of notice to such passengers of such want of authority or in the absence of collusion betiveen them and the conductor to defraud the company of its fare, owes to such passengers the duty of ordinary care in running and managing said train; and in taking the freight or construction train they accept and travel on it, acquiescing in the usual incidents and conduct of a freight or construction train, managed by ordinarily competent and prudent men.”

It would have been more accurate to say “managed . with the care of ordinarily competent and prudent men,” which is the evident meaning of the instruction.

This instruction places the debt of care due from the carrier upon the basis of innocence and good faith upon- the part of the person carried, and impliedly denies it, when he is received by a conductor, with notice that the conductor is without authority to permit him to be carried. In this respect the instruction is in accord with the authorities cit'ed while considering the demurrer to the evidence; as well as in accord with the rulings of this court on occasion of the previous appeal of this case, wherein Brace, J., remarks: “And when he (the conductor) permitted the deceased to take passage on it, as may be fairly inferred from the evidence of the plaintiff, the deceased without notice of any want of authority in the conductor to grant such permission; in the absence of collusion between him and the conductor to defraud the company- of its fare * * * became a passenger.” If he became a passenger, of course he was entitled to the highest degree of care consistent with the character of the conveyance, and the substitution of ordinary care could not be, as already stated,ground of error in behalf of appellant.

It may be observed that no instruction was given at the instance of respondents assuming to define the degree of care due to a person riding with the consent of the conductor, but with notice that he had no authority to give such consent; the theory of the respondent’s right to recovery being rested entirely upon the relation of the deceased as a passenger, not as a wrongdoer or a pronounced trespasser, which would presumably be his relation if riding in known violation of the orders of the company. If the appellant fiad desired to have that phase of the case particularly considered by the jury, it should have asked a proper and specific instruction to that effect. An approximation of it is contained in the first instruction given at the instance of appellant, wherein an abstract proposition of law is asserted to the effect that railroad companies do not owe to those unlawfully on their trains the same duty they owe to their passengers, but only sv,ch care as they ordinarily exercise in running their trains. This measure of care is not necessarily the care of ordinarily prudent men; it may and it may not be, according to the standard of care approved and actually followed by the company. The instruction fails to declare that a person is unlawfully on a train, when he is there by consent of the conductor, after notice that the conductor has no rightful authority to give consent; but perhaps a jury would naturally understand that a person riding under such circumstances was unlawfully on the train. However that may be, there is nothing in the declaration inconsistent with the instructions given at the respondent’s instance or on motion of the court. I think the appellant, if it had been content to stand on this declaration of law, was at liberty to insist before the jury that if they believed that the deceased was on the train in known violation of the conductor’s duty to receive, he was unlawfully there, and that in such event the care of ordinarily prudent men was not due to him, but only such care as the employees of the train ordinarily exercised ; and that the evidence tended to prove that the train was run and managed as it always had been; in which event the company was not liable at all.

But all advantage of this abstract proposition of law was surrendered when the appellant asked and obtained its third instruction, on its face applying to the actual facts of the case, as disclosed in the evidence before them, which reads as follows: “The court instructs the jury that, under the facts disclosed by the evidence in the case, the defendant ivas only required to exercise ordinary care toward the deceased in the operation of the work train in question.”

Whatever relation the facts in the case might indicate the deceased as occupying towards the appellant, whether as passenger or trespasser; whether lawfully on the train or unlawfully there; he was, according to this instruction, entitled to, at least, ordinary care from the appellant.

In the ninth instruction asked by appellant and refused by the court, it is conceded that the carrier owed the deceased ordinary care, although he was not a passenger. This would presumably cover the lawful relation of a person riding in known violation of the company’s rules, which was the relation of the deceased according to the contention of appellant. I refer to this refused instruction only,for the purpose of representing the manifest theory upon which the appellant regarded itself at the trial as responsible for ordinary care. Thus it appears that the respondent in her instructions claimed only ordinary care from the appellant upon her view of the facts, and that the appellant conceded the same measure of care upon its view of the facts, or any other view which the facts sworn to might justify. The curing effect of this instruction extended to all the facts in the case, including those tending to prove contributory negligence, in respect to which the respondent, in her fourth instruction given by the court, asked for nothing higher than ordinary care from the appellant, after becoming aware of the presence of the deceased on the open car. I am, therefore, constrained to hold that the appellant having induced the trial court to adopt the measure of ordinary care, is precluded by the record from insisting before us that the judgment should be reversed, because, in its view of the facts of the case, it was responsible for only gross negligence or willful wrong. Crutchfield v. Railroad, 64 Mo. 255; Davis v. Brown, 67 Mo. 313; Iron Mountain Bank v. Armstrong, 92 Mo. 277; Reilly v. Railroad, 94 Mo. 611; Tomlinson v. Ellison, 104 Mo. 105.

Finding no ground for reversible error in this, the Berry case, I am of the opinion that the judgment should be affirmed.

The eases of Wagner and Zuendt present conditions entirely different. These two cases were tried together, at the same time, before the same jury, and upon the same set of instructions, which differ materially from the instructions given in the Berry case. I will now proceed to examine them, or as many of them as may be necessary, to determine whether the action of the trial court in respect to them should be approved.

The first two instructions given at the instance of the respondents correspond in every respect with the first .two given in the Berry case, which have already been considered. They repeat the proposition, that if the deceased were on the train for the purpose of transportation with the consent of the conductor, they were passengers and entitled to ordinary care, irrespective of nonpayment of fare. No allusion is contained in them of a want of authority in the conductor to consent to their transportation. The fifth instruction given at the instance of the respondent in the Berry case, which is predicated on the absence of notice or knowledge of the conductor’s want of authority to receive passengers, is omitted in these two eases. In place of it we find the fifth instruction given at respondent’s instance, which'reads as follows: “The court instructs the jury that the fact, if true, that deceased was on the train at the time of the accident, with the hnoiuledge on his part that it was against the rules of the defendant for passengers to he carried thereon, did not release defendant of the duty towards deceased of exercising ordinary care in running and managing said train, provided the deceased ivas riding thereon for the purpose of transportation, with the hnoiuledge and consent of the conductor as master of the train.'”

It will be noticed that this instruction declares that a person riding on-a train with the consent of the conductor is entitled to ordinary care, notivithstanding the rules of the company forbidding such transportation, and & knowledge on Ms part of' the existence of such rules.

This instruction is followed by the sixth instruction given at respondent’s request, which reads as follows: “The court instructs the jury that the fact, if true, that the conductor ivas without authority to accept the deceased as a passenger on its train, constitutes no defense for the defendant, if the jury further find and believe from the evidence that the conductor was master of the train for the defendant, and the deceased was thereon with his knowledge and consent for the pwpose of transportation.”

There were no instructions • given at appellant’s request, as in the Berry case, conceding the measure of ordinary care to a person riding under any relation to the company, which the evidence of the case might establish, whether that of the passenger or that of trespasser. Accordingly it will 'be necessary to consider whether the fifth and sixth instructions announce correct propositions of law applicable to the facts in evidence.

The sixth instruction asserts the unqualified proposition that if the deceased were on the train for transportation with the consent of the conductor, the fact that the conductor had no authority to give such consent, constitutes no defense. In my opinion it would constitute a defense of some kind, if the person riding had notice of it. There is evidence in these cases tending to prove in a greater or less degree that the deceased must have known that the conductor was without authority to admit them on the train, for the purpose of transportation; and there should have been some qualification either in the instruction itself or in some other instruction, declaring the qualifying effect of such notice, otherwise the jury would naturally understand that notice of such want of authority in the conductor could not change the truth of the declaration. So far from guar-ding the jury against this construction, the court in the fifth instruction practically avows it, by declaring that, even though the-deceased knew that it was against the rules of the company to transport passengers on the train in question, the railroad was nevertheless liable for ordinary care, if they were received for transportation by consent of the conductor.

Undoubtedly a person might know that the rules of a company prohibited transportation of passengers on particular trains, and nevertheless believe, upon certain facts appearing to him, that the conductor had authority to relax the rules. Relying upon the facts tending to prove the right to relax the rules, his presence on the train with the consent of the conductor might well invest him with the rights of a passenger. But this instruction presents no such qualification. A knowledge of the rules, in absence of evidence tending to prove a right in the conductor to relax them, has been held to imply notice of want of power in him to receive passengers. This implication is conceded in the theory of respondent’s argument before us, in which it is contended that a person riding with the consent of the conductor is entitled to ordinary care, notwithstanding his knowledge at the' time that the conductor had no rightful authority to give such consent. This brings us to the pivotal point of the controversy before us, which turned against the appellant in the Berry case, on account of the concession embraced in its instruction about ordinary care.

Is a person entitled to ordinary care from the servants of a railroad company, who is received for translation by the conductor as a master of the train, but who knows at the time that the conductor has no rightful authority to receive him? The respondents claim that he has, citing the ease of Whitehead v. Railroad, 99 Mo. 263; the appellant contends that he has not, urging with many citations of high authoi’ity that the company is liable in such ease for only gross negligence or willfull wrong.

In determining the measure of care due from a common carrier it may be necessary first to know the precise relation which the carrier held to the claimant for damages. Such terms as quasi passenger or passenger sub modo, do not convey any very definite relation to the mind.

Clearly the relation of carrier and passenger can not be established without consent of the carrier, express or implied. It may be conceded that the conductor as master of the train and a vice principal of the company is vested with full prima facie authority to give or withhold consent.

If a person rides on a train without the consent of the conductor, express or implied, he is a trespasser and not a passenger, unless he shows some authority from the company. If he rides with the consent of the conductor, he becomes prima facie a passenger. The mere fact that the conductor’s authority to permit him to ride is limited, as between him and his principal, does not change the relation established by consent. If, however, he knows that the conductor’s authority is limited by the company, forbidding him to receive passengers, he does not ride by consent of the carrier, because the consent of a conductor who is Imoion to have no rightful authority, is no consent at all as against the carrier. This conclusion is supported by the law of agency. Mechem on Agency, see. 279.

The fact that the conductor is a vice principal of the company in the business of managing the train, and that the act of permitting persons to ride'is within the general scope of his duties, can not help anyone to the contractual relation of a passenger, who knows that he is forbidden by his principal to enter into such a contract. All the authorities concur in denying to a person riding under these circumstances the relation of a passenger; most all impute to him the relation of a trespasser. If he is not a trespasser, what possibly can be his .relation to the train? Certainly he is not a licensee by mere permission or sufferance only, because he must know that the conductor is equally destitute of the authority to grant such a permit which would give to him the benefit of transportation as soon as the train starts, the identical benefit which he knows has been forbidden.

If a person boards a train during its trip for the purpose of transportation, a permit to remain on it is necessarily a permit to ride. Neither can he be a licensee by invitation, which is said by some authorities to bestow greater rights than those given to a licensee by mere sufferance. A conductor who is known to have no rightful authority to carry passengers on his train, must be known to have no authority to invite them to ride. The presence of a licensee by sufferance or by invitation on premises is justified only by the consent pr invitatipn pf the principal, or the apparent rightful consent or invitation of his agent, acted upon innocently and in good faith. Innocence and good faith saved them from the relation of wrongdoers. If a person is on a train for the purpose of transportation knowing that the conductor consenting to his presence is without authority to permit or invite him to be there, he is as far from being a licensee by either sufferance or invitation, as he is from being a passenger. If .he knows he is on the train without the rightful consent or invitation of the conductor, he is neither passenger or licensee. The term licensee applies more appropriately to persons who enter by express or implied permission upon depot premises or standing trains for purposes other than that of transportation; such as news vendors to sell papers, persons receiving or parting with guests, or anyone having business with the company. It would seem that no one can become such licensee on the premises of a railroad company at its station or on its train, while standing there, without the consent of the company either express or implied. Doss v. Railroad, 59 Mo. 27; Snyder v. Railroad, 60 Mo. 413: Blackmore v. Toronto, etc., Co., 38 U. C. Q. B. 172; Railroad v. Best, 66 Tex. 116; McKone v. Railroad, 51 Mich. 601.

In regard to the measure of care due to licensees, one need not in this case inquire. It has been held by some courts that a mere licensee by permission or sufferance is entitled to no higher degree of care than a trespasser. Benson v. Baltimore Traction Co., 37 Cent. L. J. (Md.) 216; Plummer v. Dill, 31 N. E. Rep. (Mass.) 128; and that ordinary care is due only to a licensee by invitation, express or implied. I am inclined to think that a licensee- by mere permission becomes entitled to ordinary care. But this permission must * not be against the known instruction.or declaration of the principal, otherwise it is not a rightful permission, and is wanting in the elements which justify an entry upon premises.

The question now recurs as to the measure of care due to a trespasser. I believe the authorities are almost unanimous in holding that a railroad is liable in damages to a trespasser for only gross negligence or willful wrong. Barker v. Railroad, 98 Mo. 50; Way v. Railroad, 19 N. W. Rep. (Iowa) 828; McVeety v. Railroad, 45 Minn. 268; Railroad v. Collins, 87 Pa. St. 405; Henry v. Railroad, 76 Mo. 295; Railroad v. Goldsmith, 47 Ind. 43; Brown v. Railroad, 64 Mo. 536; Yarnall v. Railroad, 75 Mo. 575; Hallihan v. Railroad, 71 ; Rine v. Railroad, 88 Mo. 392. The ease of Hicks v. Railroad, 65 Mo. 34, in which the motion for a rehearing on the decision of the same case in 64 Mo. 434, was overruled, constitutes an exception to the rule laid down, which exception, however, has not been followed in this state. Undoubtedly, the duty to exercise all reasonable care to avoid injuring a trespasser is imposed on the company after a sense of threatened or impending danger is actually felt by the servants of the company. Barker v. Railroad, 98 Mo. 50; Rine v. Railroad, 88 Mo. 392; Reardon v. Railroad, 114 Mo. 384.

In view of the fact that ordinary care is a comparative term, it may be doubted whether a failure to exercise it in such an emergency is not gross negligence. Steamboat New World v. King, 16 How. 469; Brown v. Railroad, 50 Mo. 461; Railroad v. Derby, 14 How. 468.

Before this condition of things arises, the duty to exercise ordinary care is generally not imposed. The standing duty of exercising ordinary care would make the carrier liable, not only for negligence in guarding against dangers which he actually sees or feels, but against those which he might have seen or have discovered by an exercise of ordinary diligence. On what principle can a trespasser ask for this! This ever existing and continuing duty is not to trespassers, according to the decisions of this state. The servants of a railroad company are not boimd to keep in their minds the presence and welfare of a continuing trespasser, in order to protect him against possible, but unforeseen and unexpected, danger. Yarnall v. Railroad, 75 Mo. 575; Hallihan v. Railroad, 71 Mo. 116; Williams v. Railroad, 96 Mo. 275. This distinction is very pointedly developed in the case of Riñe v. Railroad, 88 Mo. 392, in which, the railroad asked the court to give an instruction imposing the duty of ordinary care to avoid injury to a trespasser, only after its servants become actually aware of danger to him. The court of its own motion interpolated the following words “or after they have become aware thereof by the exercise of ordinary care.” This court held the instruction as changed by the interpolation was erroneous, and declared that the company was liable only if they failed to exercise reasonable care “when and after they became aware that he was in an exposed and dangerous condition.”

It is proper to remark in this connection that there may be cases in which the duty to exercise ordinary care in discovering an impending or threatened danger, may be required of railway carriers towards trespassers. They are cases attended by circumstances which contain, as it were, admonitions or indications of probable danger, ■ upon the strength of which the carrier’s servants should exercise reasonable care to discover the danger and to avoid it if possible; such admonitions or indications as a signal to a passing train, implying danger to an unseen trespasser. Frick v. Railroad, 75 Mo. 595. Or a knowledge that certain places on the track are frequented by trespassers. Williams v. Railroad, 96 Mo. 275. In such and similar cases the duty, 'not a contractual obligation, is imposed on the carrier to discover, if he can by exercise of ordinary diligence, whether there is any danger to be avoided.

The instructions in question contain no such limitations or qualifications to the duty of exercising ordinary care to trespassers. They assert the unqualified requirement of ordinary care at all times and under all circumstances to persons who can not legally be regarded in any other light than trespassers. Neither is the error of these instructions corrected by the fourth instruction given at respondent’s request on the question of contributory negligence on the part of the deceased, and an actual apprehension, on the part of the carrier, of the danger incident to it. It fails to negative the requirement of ordinary care, which is declared to exist, in the fifth instruction, irrespective of contributory negligence.

The counsel for respondents claim that the fifth and sixth instructions are supported by the following remarks in the opinion of the court in Whitehead v. Railroad, 99 Mo. 263. “If he (the party injured in the case) was on the train with the consent of the agents who had charge, he was not wrongfully there— much less a trespasser.” There is nothing objectionable in this language, which may fairly be construed as declaring the prima facie effect of the consent of the conductor to a person riding. The opinion goes on to say: “Even had he known that he was on the train in violation of defendant’s rules, still, being there with the consent of the master of the train, the company owed him a duty, at least ordinary care, and for a breach of that duty it is liable in damages.” These remarks were perhaps not necessary to a determination of the case, but may have been called out by the arguments of counsel. It will be observed that they did not assume to declare what relation a party would hold to a train, who was on it with the consent of the conductor, but in known violation of the duties of the conductor to his principal. But, as it accords to him the measure of ordinary care, which is not in this state accorded to a trespasser; it may be inferred that the author of the language did not regard him in 'the light of a trespasser, but perhaps in the light of a licensee or quasi passenger. If our view of his relation to the train is correct, then he is a trespasser, and the instruction awarding to him the measure of ordinary care is erroneous.

I am unable to perceive how he can be rightfully on the train by the consent of the conductor, when he knows that it has been wrongfully given. A person riding on a train with the known wrongful consent of the conductor, is, in my opinion, unquestionably a trespasser. He may not be a trespasser vi et armis (because the wrongful consent of the conductor relieves him from the ' employment of force), unless the law implies force from his wrongful act. If there is no implication of force, then he is guilty of trespass on the case—a wrongful and injurious act, unaccompanied with force, actual or implied. Chitty on Pleadings, 132; 3 Bl. Com. 208; Stephen on Pleadings, 16, 17.

The fifth instruction in these two cases is subject to objection in another respect. It allows recovery upon the theory that the deceased were trespassers. This relation is in contradiction of the relation alleged in the petition. The right of action under the statute does not depend upon any particular relation which the injured person holds to the one charged with negligence. It does not purport to change the common law of negligence, except in preserving to certain representatives of the injured party, the right of action, which he would have possessed if he had survived his injuries. It is sufficient, under the statute as well as at common law, to allege that the person injured was not on the track or train of the railroad, or so near that he could be, and was injured by some negligent act of its servants or agents. Reardon v. Railroad, 114 Mo. 384.

At the trial the plaintiff may introduce evidence tending to prove a relation resting on contract or license, or a relation without contract or license, and in contradiction of it. In doing this he does not encounter any averment in his petition to stop him. But if he alleges a particular relation, as that of a passenger, which implies that he is on the train with the consent of the carrier for the purpose of transportation, to whom the carrier owes the duty of extraordinary care, he should be precluded from recovering upon a state of facts contradicting that relation by proving him to be a trespasser. On a general denial the defendant is at liberty to establish such a tortious relation to defeat the case alleged. The vice of the plaintiff claiming to recover on such a petition in behalf of a trespasser, is not cured in waiving the extraordinary care due a passenger, and claiming before the jury a less degree of care which may be accorded to a trespasser. This waiver does not obviate the objection that he recovers on a state of facts materially inconsistent with the averment of his petition. The respondents in this case were entitled to go to the jury on the facts tending to prove that the deceased were received on the train for the purpose of transportation, and were, therefore, passengers. The appellants, in controverting this proposition, had the light to an instruction properly worded to the effect that if the deceased were on the train without or against the consent of the conductor, or with his consent, but known to have been in violation of his duty to his principal, then they could not recover. This is the only way in which the appellants could take advantage of the facts tending, to prove that the deceased were trespassers, because it was in their interest to elicit such facts from the evidence on both sides. But, as no such instruction was asked, its omission constitutes no ground for reversible error.

I may remark in this connection that the respondents’ had a right to ask for a measure of ordinary care upon the theory of their ease, which imputed the relation of canier and passenger. The greater includes the less, and the appellants have no right to complain of the exaction of a less degree of care than they are liable for to passengers. Ordinary care is included in the requirement of extraordinary care. In the next trial of these cases the ¿ppellant should omit the second instruction given at their request, which seems to imply substantially that there was no evidence oí-apparent authority in the conductor of this train to receive passengers on it. This instruction was refused in the Berry case. It is erroneous as ignoring entirely .the make up of this train with the combination coach at its rear, as constituting any evidence of appai’ent authority in the conductor to receive passengers. The instruction is misleading and is not applicable to the facts in these cases.

In pursuance of the conclusions reached in this opinion, I am in favor of affirming the judgment in the case of Virginia T. Berry against the appellant, and reversing the judgments, in the cases of Elizabeth Wagner and Antonia Zuendt against it, and of remanding both of said last mentioned cases for further proceedings in accordance with this opinion.

The other judges express their views in opinions filed by them. They reach the following conclusions: Black, C. J., is in favor of reversing all the judgments and remanding the causes; Brace and Barclay, JJ., are in favor of affirming all the judgments; Gantt, Sherwood and Burgess, J.J., are in favor of reversing all the judgments. A majority of the court agreeing to this extent, that all the cases shall be submitted to a jury, the judgments are reversed and the causes. remanded.