Holmes, Judge,
delivered the opinion of the court.
The plaintiff, an infant and only child of Thomas Gr. Higgins, who was killed while riding in a baggage car on the Hannibal and St. Joseph railroad, on the 16th day of September, 1861, brings this suit — the widow having failed to sue within six months — to recover the five thousand dollars damages which are given by the second section of the “ Act concerning damages” (R. C.1855, p. 647), where any passenger shall die from an injury resulting from or occasioned by any defect or insufficiency in any railroad. The petition is evidently framed upon that act, though the statute is not named or referred to by any express words. It contained two counts, one framed upon the second section and the other upon the [431]*431third section of the act. The verdict was for the plaintiff upon the first count, and for the defendant upon the second count; and the damages were assessed at five thousand dollars. The defendant’s motion for a new trial was overruled. The case comes up by appeal, and stands here upon the first count only.
There was no averment in the body of the petition that the plaintiff was an infant suing by guardian, nor that any guardian had been duly appointed, nor that Eliza Higgins was the mother and the natural guardian of the child, nor that she had given bond and security according to law as such natural guardian having charge of the estate of the minor. Averments of this nature are material, and should be made in the body of the petition. The title or caption of the cause should give the names of the parties to the action, and then they may be referred to in the body of the petition as the plaintiffs or defendants; but all necessary descriptions of the character of the parties, and all material allegations or statements of facts, must be contained in the petition itself, otherwise it will be demurrable. (Pr. Act, Art VI., § 3.) The incapacity of the plaintiff to sue here appeared on the face of the petition, and it was for that reason demurrable; where the defect does not appear on the face of the petition, the objection may be taken by answer ; but if it be not taken either by demurrer or answer, it is waived, and will not be noticed on motion for a new trial or in arrest of judgment. {Ibid. 10.) This defect may be considered as having been cured also by the operation of the statute of jeofails. (§19 of Art. IX.) The result is, in such case, that the infant plaintiff will be allowed to recover judgment; but before the natural guardian would have any power or control over the money recovered, she should be required to give bond and security in the manner required by law in such cases. (McCarty v. Rountree, 19 Mo. 345.) A judgment will not be reversed on this ground alone.
The clause of the act on which this first count is framed relates exclusively to passengers and to cases of injury and [432]*432death occasioned by some defect or insufficiency in the railroad. The statute makes the mere fact of an injury and death, resulting from a cause of this nature, a prima facie case of negligence and of liability on the part of the defendant as a presumption of law. It is not a conclusive presumption, but disputable by proof, that such defect or insufficiency was not the result of negligence ; nor does it preclude any other defence of a different nature. The act is to be interpreted and construed with reference to the state of the law as it stood before its passage. By the general principles of law which were applicable to common carriers of passengers, and to persons standing in that relation, the fact of an injury to a passenger occasioned by a defective railroad, car or coach, or by defect in any part of the machinery, made a prima facie case of negligence against the defendant sufficient to shift the burden of proof; and, by that law, carriers of passengers were held responsible for the utmost degree of care and diligence, and were liable for the slightest neglect. This act is evidently based upon the same principles ; it is confined by its terms strictly to passengers, and to injuries arising from causes of that peculiar nature only ; and it must receive a construction in accordance with these principles. Viewed in this light, it is clear that the intent of this clause of the act was to provide greater security for the lives and safety of passengers as such, and to enable the representatives of a deceased passenger to pursue the remedy given by the act; and no other class of persons is included within its purview.
The first question presented here is, whether the deceased person was a passenger within the meaning of the act. The evidence shows that he had been in the employ of the company as an engineer and brákeman for several years, with some intermissions; that for several months previous to the accident, and down to the 4th day of September, 1861, when his train was stopped by guerrillas, he had been continuously on duty as a brakeman, and that, about that time, the interruptions occasioned by actual hostilities in that neighborhood had [433]*433caused the train on which he was employed to cease running for a time, and that for several days before the day of his death he had not been in actual service on any train; but his name still remained on the roll of the company’s employees as before. He had never been paid off and discharged ; his account was unsettled, and there were arrears still due him at the time of his decease. It appears that the brakemen were paid monthly, but at the rate of so much a day for as many days as they actually worked during the month. These facts would all go to show that his employment still continued, and that his relation to the company was still that of an employee. On the morning of the accident, he signalled the train to stop and take him up, as it passed where he was ; he took his place in the baggage car among other employees ; he appears to have treated himself as an employee, and he was received by the conductor as an employee who was passing from one point to another on the road, in the usual manner. He engaged no passage, took no seat in any passenger car, paid no fare, and evidently did not expect to pay any, and none was exacted from him. He did not claim to be a passenger, nor was he considered otherwise than as an employee by the conductor. Upon a careful examination of the evidence on this point, we think it tended to prove that he was an employee, and not a passenger, within the purview of the act, and that, under all the circumstances, the conductor had a right to presume that he was travelling as an employee of the company merely.
Such being the relation of the parties, the mere circumstance that he had been off duty as a brakeman for some days, or that he was then passing on his own private errand, and not immediately engaged on the business of the company, or in running that very train, cannot be allowed to make any difference. (Gilshannon v. Stony Brook R. Co. 10 Cush. 228.) The conductor, knowing him only as-an employee, was not bound to inquire into his particular errand; and though informed by a casual conversation with him, in the baggage"car, that he was looking for some temporary em[434]*434ployment, so as not to lose time, lie might still be justified in treating him as an employee, who had the privilege of free passage on the trains as such. Under such circumstances, it was his business, if he claimed to be a passenger, to engage or take a seat in a passenger coach as such, or, at least, in some way, to. make it known to the conductor that he claimed tobe travelling in the character of a passenger.
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Holmes, Judge,
delivered the opinion of the court.
The plaintiff, an infant and only child of Thomas Gr. Higgins, who was killed while riding in a baggage car on the Hannibal and St. Joseph railroad, on the 16th day of September, 1861, brings this suit — the widow having failed to sue within six months — to recover the five thousand dollars damages which are given by the second section of the “ Act concerning damages” (R. C.1855, p. 647), where any passenger shall die from an injury resulting from or occasioned by any defect or insufficiency in any railroad. The petition is evidently framed upon that act, though the statute is not named or referred to by any express words. It contained two counts, one framed upon the second section and the other upon the [431]*431third section of the act. The verdict was for the plaintiff upon the first count, and for the defendant upon the second count; and the damages were assessed at five thousand dollars. The defendant’s motion for a new trial was overruled. The case comes up by appeal, and stands here upon the first count only.
There was no averment in the body of the petition that the plaintiff was an infant suing by guardian, nor that any guardian had been duly appointed, nor that Eliza Higgins was the mother and the natural guardian of the child, nor that she had given bond and security according to law as such natural guardian having charge of the estate of the minor. Averments of this nature are material, and should be made in the body of the petition. The title or caption of the cause should give the names of the parties to the action, and then they may be referred to in the body of the petition as the plaintiffs or defendants; but all necessary descriptions of the character of the parties, and all material allegations or statements of facts, must be contained in the petition itself, otherwise it will be demurrable. (Pr. Act, Art VI., § 3.) The incapacity of the plaintiff to sue here appeared on the face of the petition, and it was for that reason demurrable; where the defect does not appear on the face of the petition, the objection may be taken by answer ; but if it be not taken either by demurrer or answer, it is waived, and will not be noticed on motion for a new trial or in arrest of judgment. {Ibid. 10.) This defect may be considered as having been cured also by the operation of the statute of jeofails. (§19 of Art. IX.) The result is, in such case, that the infant plaintiff will be allowed to recover judgment; but before the natural guardian would have any power or control over the money recovered, she should be required to give bond and security in the manner required by law in such cases. (McCarty v. Rountree, 19 Mo. 345.) A judgment will not be reversed on this ground alone.
The clause of the act on which this first count is framed relates exclusively to passengers and to cases of injury and [432]*432death occasioned by some defect or insufficiency in the railroad. The statute makes the mere fact of an injury and death, resulting from a cause of this nature, a prima facie case of negligence and of liability on the part of the defendant as a presumption of law. It is not a conclusive presumption, but disputable by proof, that such defect or insufficiency was not the result of negligence ; nor does it preclude any other defence of a different nature. The act is to be interpreted and construed with reference to the state of the law as it stood before its passage. By the general principles of law which were applicable to common carriers of passengers, and to persons standing in that relation, the fact of an injury to a passenger occasioned by a defective railroad, car or coach, or by defect in any part of the machinery, made a prima facie case of negligence against the defendant sufficient to shift the burden of proof; and, by that law, carriers of passengers were held responsible for the utmost degree of care and diligence, and were liable for the slightest neglect. This act is evidently based upon the same principles ; it is confined by its terms strictly to passengers, and to injuries arising from causes of that peculiar nature only ; and it must receive a construction in accordance with these principles. Viewed in this light, it is clear that the intent of this clause of the act was to provide greater security for the lives and safety of passengers as such, and to enable the representatives of a deceased passenger to pursue the remedy given by the act; and no other class of persons is included within its purview.
The first question presented here is, whether the deceased person was a passenger within the meaning of the act. The evidence shows that he had been in the employ of the company as an engineer and brákeman for several years, with some intermissions; that for several months previous to the accident, and down to the 4th day of September, 1861, when his train was stopped by guerrillas, he had been continuously on duty as a brakeman, and that, about that time, the interruptions occasioned by actual hostilities in that neighborhood had [433]*433caused the train on which he was employed to cease running for a time, and that for several days before the day of his death he had not been in actual service on any train; but his name still remained on the roll of the company’s employees as before. He had never been paid off and discharged ; his account was unsettled, and there were arrears still due him at the time of his decease. It appears that the brakemen were paid monthly, but at the rate of so much a day for as many days as they actually worked during the month. These facts would all go to show that his employment still continued, and that his relation to the company was still that of an employee. On the morning of the accident, he signalled the train to stop and take him up, as it passed where he was ; he took his place in the baggage car among other employees ; he appears to have treated himself as an employee, and he was received by the conductor as an employee who was passing from one point to another on the road, in the usual manner. He engaged no passage, took no seat in any passenger car, paid no fare, and evidently did not expect to pay any, and none was exacted from him. He did not claim to be a passenger, nor was he considered otherwise than as an employee by the conductor. Upon a careful examination of the evidence on this point, we think it tended to prove that he was an employee, and not a passenger, within the purview of the act, and that, under all the circumstances, the conductor had a right to presume that he was travelling as an employee of the company merely.
Such being the relation of the parties, the mere circumstance that he had been off duty as a brakeman for some days, or that he was then passing on his own private errand, and not immediately engaged on the business of the company, or in running that very train, cannot be allowed to make any difference. (Gilshannon v. Stony Brook R. Co. 10 Cush. 228.) The conductor, knowing him only as-an employee, was not bound to inquire into his particular errand; and though informed by a casual conversation with him, in the baggage"car, that he was looking for some temporary em[434]*434ployment, so as not to lose time, lie might still be justified in treating him as an employee, who had the privilege of free passage on the trains as such. Under such circumstances, it was his business, if he claimed to be a passenger, to engage or take a seat in a passenger coach as such, or, at least, in some way, to. make it known to the conductor that he claimed tobe travelling in the character of a passenger. Where a director was invited by the president to pass over the road as a passenger, without paying fare (Philad. & Read. R. Co. v. Dertry, 14 How., U. S. 468); where a man was taken up by the engineer of a gravel train, to be carried as a passenger, paying fare, as the practice had been, and was allowed to go from the tender to a gravel car (Lawrenceb. & Upper Miss. R. Co. v. Montgomery, 7 Ind. 474); and where a man who had been a workhand on the road, but had left the service of the company, two weeks before the accident, because they did not pay him, got upon the train to be carried as a passenger (Ohio & Miss. R.R. Co. v. Muhling, 30 Ills. 9); and where a house carpenter was employed to build a bridge, and was sent by the company on their cars to another place, to assist in loading timbers, for the bridge (Gillenwaler v. Madison & Ind. R.R. Co., 5 Ind. 340), the injured person was held to be clothed with all the rights and character of a passenger and a stranger, and that he was not to be considered as standing on the same footing as ordinary employees and fellow-servants of the company. If this party had been invited to go on the train as a passenger, or had taken a seat in a passenger car, or had been taken on board the train in the character of a passenger, and the conductor had merely waived his right to demand fare, as an act of liberality or courtesy, and had then allowed him to pass into the baggage car to ride there, the case would have been quite different, and might have fallen within the reasoning and the principle of these adjudged cases. The benefit of this act was plainly intended for those only who stand strictly in the relation of passengers, and between whom and the carrier there exists the privity of contract, with or without a fare actually paid, [435]*435and the peculiar responsibilities which are implied in that relation and depend wholly upon it. Where the relation is properly that of master and servant only, this particlar clause of the act has no application. We think this matter was not fairly nor correctly laid before the jury by the instructions of the court below.
Again, even if the deceased party could be considered as having been in any proper sense a passenger, there could not be the least doubt that he had himself neglected all precautions, and voluntarily placed himself in a position which he knew to be the most dangerous on the train for a passenger. A baggage car is certainly no place for a passenger, and, as such, the proof shows he had no business to be there at all. We are aware that it has been held, in some cases, that if a passenger, who is travelling as such, is allowed to go into a baggage car, or into a part of the baggage car which is used for a post-office, where passengers are sometimes permitted to be, as in Carroll v. N. Y. & N. Haven R.R. Co. (1 Duer, 571), and while there an accident and injury occur by reason of negligence on the part of the company, and under such circumstances that his being in that place cannot be said to have materially contributed to produce the accident or injury, the defendant would still be held liable. In many cases of this kind, it might be difficult to determine whose negligence had been the real cause of the injury ; but any question of this nature is removed from our consideration in this case by force of another statute, which finds an apt and just application here. By the fifty-fourth section of the “Act concerning railroad associations” (R. C. 1855, p. 438), approved one day only after the act in question, it is expressly provided as follows:
“In case any passenger on any railroad shall be injured while on the platform of a car, or in any baggage, wood or freight car, in violation of the printed regulations of the company, posted up at the time in a conspicuous place inside of its passenger cars then in the train, such company shall not [436]*436be liable for tlie injury: Provided, said company, at the time, furnished room inside its passenger cars sufficient for the proper accommodation of the passengers.”
This provision is, by the fifty-seventh section of the same act, made applicable to all existing railroads in this State— (ibid. p. 438). Under this section, the exemption of the company is made to depend upon a violation by the passenger of the pi’inted regulations posted up in the passenger cars only. They are not required to be posted up in a baggage car; it is presumed that no passenger will eker be found there. There was evidence in the.case tending to prove that this provision of the statute had been complied with on the part of the defendaixt; but the printed forms used had been changed since that time, and no copy of the former cards had been found, and, on proof made of the loss of them, secondaxy evidence was offered to prove their contents. This evidence was excluded as irrelevant and as having no bearing upon the case. In the view we have taken of this statute, the evidence was certainly very material, and should have been admitted. It is true, such notices could have given this party no information, for the reason that he did not go into the passenger cars; the evidence tended to show that he was, in fact, well acquainted with these regulations ; and this consideration, so far from weighing anything ixx his favor, would rather tend to strengthen the inference that he was not a passenger at all. This statute proceeds again upon the. general principles of law in relation to contributory negligence; and it supposes that a passenger who has liad the warning of this notice, and who still ventxxi'es to place himself in a situation so dangerous as a baggage car, is to be considered as contributing by his owxi negligence to produce the injury, and therefore that the company is not to be held liable in such case.
We think the first and second instructions asked for by defendant should have been given, and that the fifth, sixth and seventh instructions given for the plaintiff should have [437]*437been refused. It is not deemed necessary more particularly to notice the other instructions.
The judgment is reversed and the cause remanded.
The other judges concur.