Mr. Justice Gordon
delivered the opinion of the court,
From the evidence it appears that Henry Creed, the husband of the plaintiff, from the death of whom the present action has resulted, was a passenger upon a mixed freight and passenger train of the defendant, running from Jersey City to Philadelphia. At the time of the accident, which resulted in his death, Creed was in the caboose, the hindmost car of the train, immediately in front of which were the passenger-cars, so that there was ready and easy access from the latter to the former. This caboose-car was one set apart and especially designed for the use and occupancy of the employees engaged in -running the train, and by .the rules of the company no other persons were permitted to enter it. It is quite clear, from-the evidence, that Creed boarded this train at Jersey City, for Bran-Dig, the freight conductor, says he saw him first on the afternoon of November 5th, the day of the accident, in that city, and that he next noticed him at Newark in the lookout of the caboose, and as this train left Jersey City in the evening, there can be but little doubt that the deceased got upon it at that point. It is also in evidence, that though Brannig had the full and entire charge of the train from the time it left Newark, yet he had no authority to receive passengers or to examine or lift the -tiókets of such as remained on the train after passing that station, at which point the passenger conductor, who had charge of the cars from Jersey City, left the train. Whether Creed paid his fare or not is unknown. Brannig’s duties did not lead him to inquire, and the passenger conductor was not called. He may have had a ticket, or he may have been surreptitiously on the train through the connivance of the train hands, to whom he may have been known, as he formerly had a position on this road. Presumptively he was rightfully-there; certainly he was there with the knowledge and acquiescence of one of the conductors, if not of both. Under this condition of affairs the learned judge of the court below charged the jury as follows:
“ 1. There is no direct proof of negligence on his, Creed’s, part, unless it may be considered in connection with the position which he occupied in the cars as riding in the caboose.” This point was reserved.
“2. We have no evidence of payment of money by him ; but I think there is a reasonable and fair presumption, that if a person, not connected with the company, travels by a passenger train, presumably he is travelling as a passenger and for a consideration.” This point was also reserved. The verdict was for the plaintiff; [144]*144but the court, without giving any opinion, entered judgment for the defendant non obstante veredicto. It follows, that the converse, of one or both of the above propositions, was finally held by the court. That is to say ; first, that there was a legal presumption of negligence, on the part of Creed, arising from the fact of his being in a car, when the accident happened, not intended for the use of passengers ; second, that, although travelling by a passenger train, and not connected with the company, the legal presumption is that he was not travelling as a passenger who had paid his fare, or intended, in good faith, so to do. As legal propositions these cannot be sustained.
No presumption of negligence can arise, either in fact or in law, from the fact of Creed’s occupancy of the caboose, for there is no evidence that it was in any degree more unsafe than any other car in the train. It was, indeed, under all ordinary circumstances, the one that was the most safe; from collisions in front of the train it was protected by the cars which preceded it, and from dangers behind, being itself a lookout, it was guarded by the constant vigilance of the employees. That it proved to be .the car first in danger, and the one most badly wrecked, argues nothing, since the carelessness of the company, in introducing new switches, having an action the reverse of the old ones, without notice to those in charge of its trains, could not be foreseen by any one, however prudent. Was Creed’s position, under all ordinary circumstances, which a man of ordinary prudence ought to foresee and guard against, as safe as a seat in a passenger car ? If it was, and, as we have said, there is no evidence to the contrary, then negligence cannot be predicated of the fact of-his being in the caboose. It is true, however, that Creed, as a passenger, ought not to have been in that car; not, indeed, because it was less safe than other parts of the train, but because forbidden by the rules of the company. It was a car provided for the use of the train hands, and not for passengers, and from its very shape and character that fact must have been obvious to any one of common understanding and observation; much more to the deceased, who had himself been a freight conductor upon this very road. Presuming, then, the knowledge of the design of this car by the deceased, which, however, is a presumption of fact, not of law, was the company thereby released as to Creed from its duty as a common carrier? This point was raised and determined in O’Donnell v. The Alleghany Valley Railroad Co., 9 P. F. Smith 239; in which case the court below held that the baggage-car was an. improper place for passengers, whether the rule of the company against such use was communicated to them or not, and that one leaving his seat in the passenger-coach and entering the baggage-car was guilty of negligence. But this ruling was reversed. Mr. Justice Agnew delivering the opinion of the court, observed: That whilst it is the [145]*145undoubted right of a railroad company to prescribe reasonable rules for the regulation of those who travel on its cars, yet the conductor is the one who is charged with their administration, and his permission of, or acquiescence in, the use of the baggage-car by a passenger, exempts such passenger from all blame, and in case of accident to him, resulting from the negligence of the company, he may recover damages. In the case of the Lackawanna and Bloomsburg Railroad Co. v. Chenewith, 2 P. F. Smith 382, the plaintiff had obtained permission from the agents of the company to attach his freight-car to a passenger train, contrary to the rules of the company, which were communicated to him, he at the same time agreeing “to run all risks.” Notwithstanding this, it was. held that the company was liable for damages resulting to the plaintiff and his car from negligence in the running of the train. And this is reasonable; for, as was said in that case, the plaintiff’s car was not unlawfully upon the road, and his engagement to be responsible for all risks did not embrace such as arose from the neglect of the defendant’s employees.
The test for contributory negligence is found in the affirmative of the question, does that negligence contribute in any degree to the production of the injury complained of? If it does, there can be no recovery; if it does not, it is not to be considered. In this we are also supported by the case of Carroll v. The New York and New Haven Railroad Co., 1 Duer, opinion per Bosworth, J. At the time of the accident complained of, the plaintiff, a passenger, was in the post-office part of the baggage-car, and though it was. conceded that the position was more dangerous in case of collision than a seat in the passenger-car, yet, being injured' by a collision to which his position in no way contributed, it was held he was entitled to recover. So, it was pertinently asked by Mr. Justice Thompson, in the case of the Railroad Co. v.
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Mr. Justice Gordon
delivered the opinion of the court,
From the evidence it appears that Henry Creed, the husband of the plaintiff, from the death of whom the present action has resulted, was a passenger upon a mixed freight and passenger train of the defendant, running from Jersey City to Philadelphia. At the time of the accident, which resulted in his death, Creed was in the caboose, the hindmost car of the train, immediately in front of which were the passenger-cars, so that there was ready and easy access from the latter to the former. This caboose-car was one set apart and especially designed for the use and occupancy of the employees engaged in -running the train, and by .the rules of the company no other persons were permitted to enter it. It is quite clear, from-the evidence, that Creed boarded this train at Jersey City, for Bran-Dig, the freight conductor, says he saw him first on the afternoon of November 5th, the day of the accident, in that city, and that he next noticed him at Newark in the lookout of the caboose, and as this train left Jersey City in the evening, there can be but little doubt that the deceased got upon it at that point. It is also in evidence, that though Brannig had the full and entire charge of the train from the time it left Newark, yet he had no authority to receive passengers or to examine or lift the -tiókets of such as remained on the train after passing that station, at which point the passenger conductor, who had charge of the cars from Jersey City, left the train. Whether Creed paid his fare or not is unknown. Brannig’s duties did not lead him to inquire, and the passenger conductor was not called. He may have had a ticket, or he may have been surreptitiously on the train through the connivance of the train hands, to whom he may have been known, as he formerly had a position on this road. Presumptively he was rightfully-there; certainly he was there with the knowledge and acquiescence of one of the conductors, if not of both. Under this condition of affairs the learned judge of the court below charged the jury as follows:
“ 1. There is no direct proof of negligence on his, Creed’s, part, unless it may be considered in connection with the position which he occupied in the cars as riding in the caboose.” This point was reserved.
“2. We have no evidence of payment of money by him ; but I think there is a reasonable and fair presumption, that if a person, not connected with the company, travels by a passenger train, presumably he is travelling as a passenger and for a consideration.” This point was also reserved. The verdict was for the plaintiff; [144]*144but the court, without giving any opinion, entered judgment for the defendant non obstante veredicto. It follows, that the converse, of one or both of the above propositions, was finally held by the court. That is to say ; first, that there was a legal presumption of negligence, on the part of Creed, arising from the fact of his being in a car, when the accident happened, not intended for the use of passengers ; second, that, although travelling by a passenger train, and not connected with the company, the legal presumption is that he was not travelling as a passenger who had paid his fare, or intended, in good faith, so to do. As legal propositions these cannot be sustained.
No presumption of negligence can arise, either in fact or in law, from the fact of Creed’s occupancy of the caboose, for there is no evidence that it was in any degree more unsafe than any other car in the train. It was, indeed, under all ordinary circumstances, the one that was the most safe; from collisions in front of the train it was protected by the cars which preceded it, and from dangers behind, being itself a lookout, it was guarded by the constant vigilance of the employees. That it proved to be .the car first in danger, and the one most badly wrecked, argues nothing, since the carelessness of the company, in introducing new switches, having an action the reverse of the old ones, without notice to those in charge of its trains, could not be foreseen by any one, however prudent. Was Creed’s position, under all ordinary circumstances, which a man of ordinary prudence ought to foresee and guard against, as safe as a seat in a passenger car ? If it was, and, as we have said, there is no evidence to the contrary, then negligence cannot be predicated of the fact of-his being in the caboose. It is true, however, that Creed, as a passenger, ought not to have been in that car; not, indeed, because it was less safe than other parts of the train, but because forbidden by the rules of the company. It was a car provided for the use of the train hands, and not for passengers, and from its very shape and character that fact must have been obvious to any one of common understanding and observation; much more to the deceased, who had himself been a freight conductor upon this very road. Presuming, then, the knowledge of the design of this car by the deceased, which, however, is a presumption of fact, not of law, was the company thereby released as to Creed from its duty as a common carrier? This point was raised and determined in O’Donnell v. The Alleghany Valley Railroad Co., 9 P. F. Smith 239; in which case the court below held that the baggage-car was an. improper place for passengers, whether the rule of the company against such use was communicated to them or not, and that one leaving his seat in the passenger-coach and entering the baggage-car was guilty of negligence. But this ruling was reversed. Mr. Justice Agnew delivering the opinion of the court, observed: That whilst it is the [145]*145undoubted right of a railroad company to prescribe reasonable rules for the regulation of those who travel on its cars, yet the conductor is the one who is charged with their administration, and his permission of, or acquiescence in, the use of the baggage-car by a passenger, exempts such passenger from all blame, and in case of accident to him, resulting from the negligence of the company, he may recover damages. In the case of the Lackawanna and Bloomsburg Railroad Co. v. Chenewith, 2 P. F. Smith 382, the plaintiff had obtained permission from the agents of the company to attach his freight-car to a passenger train, contrary to the rules of the company, which were communicated to him, he at the same time agreeing “to run all risks.” Notwithstanding this, it was. held that the company was liable for damages resulting to the plaintiff and his car from negligence in the running of the train. And this is reasonable; for, as was said in that case, the plaintiff’s car was not unlawfully upon the road, and his engagement to be responsible for all risks did not embrace such as arose from the neglect of the defendant’s employees.
The test for contributory negligence is found in the affirmative of the question, does that negligence contribute in any degree to the production of the injury complained of? If it does, there can be no recovery; if it does not, it is not to be considered. In this we are also supported by the case of Carroll v. The New York and New Haven Railroad Co., 1 Duer, opinion per Bosworth, J. At the time of the accident complained of, the plaintiff, a passenger, was in the post-office part of the baggage-car, and though it was. conceded that the position was more dangerous in case of collision than a seat in the passenger-car, yet, being injured' by a collision to which his position in no way contributed, it was held he was entitled to recover. So, it was pertinently asked by Mr. Justice Thompson, in the case of the Railroad Co. v. Chenewith, above cited, “ Why speculate about the supposed dangerous position assumed by the plaintiff if no damage resulted from it ? • Was he to become an outlaw for assuming what proved to be no risk, and so forfeit his right when he was blameless?”
This doctrine applies with much force to the case in hand. Creed was in the caboose with the knowledge and assent of the freight conductor, if we may believe the testimony of that officer; hence, he was not a trespasser; and suppose, knowing that this was not a proper place for passengers, he assumed all risks incident to that car by boarding it; what then ? Was a carelessly located or misplaced switch such an incident ? Or did his position in the remotest degree contribute to the accident ? If, however, it did not, why talk about the matter as though it were of importance ? This doc-, trine is further illustrated by the case of Washburn v. The Nashville and Chattanooga Railroad Co., 3 Head (Tenn.) 638, wherein it was held, that the fact that one is riding in the baggage-car;, with [146]*146the knowledge of the conductor, or is riding free, will not preclude him from a recovery for an injury arising from a collision, even though he might, or would not, have been injured- had he remained in the passenger-car. A like decision was made by the Supreme Court of Minnesota, in, the case of Jacobus v. The St. Paul and Chicago Railroad Co., Leg. Intel. 1874, p. 277, holding that the fact that the passenger, at the time of the injury, was in the baggage-car, contrary to a rule of the company, was not such contributory negligence as would bar his suit, and this though he may have been informed of the rule and may have persisted in remaining there in violation of it, if his position did not contribute to the accident which caused the injury. It is manifest, therefore, from reason and authority, that there was nothing in the first point for the court to reserve, but, having instructed the jury that there was no evidence of contributory negligence on part of Creed, the matter should have been allowed so to stand.
As to the second point, it was certainly correct to say “ that if a person, not connected with the company, travels by a passenger train, presumably he is travelling as a passenger, and for a considation-;” in other words, he is presumed to have paid his fare or to be ready to pay it when called upon. To presume otherwise would be to presume that such an one was a trespasser; but this is an affirmative proposition, the proof of which rests upon the one alleging it. As the doctrine above stated is expressly ruled in the case of the Pennsylvania Railroad v. Books, 7 P. F. Smith 339, per Sharsavood, J., Ave need pursue this subject no further. The. position occupied by the-decedent, in the caboose-car, may raise a question for the jury. Creed was upon a passenger-train, and, as we have seen, might laAvfully occupy any part of that train, whether passenger-car or caboose, if the conductor, knoAving his position, did not object to it. It follows that all presumptions far vorable to the occupant of a passenger-car attach in like manner to him though occupying the caboose. It cannot be said that it was no part of the duty of the passenger conductor to visit this caboose, and that, hence, no presumption can arise that Creed paid fare to an officer whom he did not see and who did not see him, for as it is the conductor’s duty to visit every part of his train where passengers may lawfully be, we must presume he did his duty. Whilst this is so it does not folloAV, from the facts developed in this case, that a presumption de jure arises that Creed did. pay his fare, or that he may not have been a trespasser. That he did not pay his fare to Brannig, the freight conductor, counts for nothing, for he Avas not authorized to receive it. This fact, however, does prove that if he paid at all it must have been at Jersey City,,at Newark, or between those places whilst the train was in charge of the passenger conductor, and as he was first noticed by Brannig, at Newark, in the lookout part of the caboose, and as he may have occupied' [147]*147that position from Jersey City, it is quite possible, or even probable, that he may not have been seen by the passenger conductor, or if seen by that officer, may have been mistaken for one of the train hands and so have avoided the payment of fare.
There being this in the case, which ought to be passed upon by a jury, we send it back for re-trial instead of entering judgment on the verdict.
Judgment reversed, and a venire faeias de novo awarded.
Sharswood and Mercur, JJ., dissented.