HEAD, J.
— The question of appellant’s liability for the acts and omissions of the persons operating the colliding trains which inflicted the plaintiff’s injury is raised by a charge requested by appellants and refused by the court, but the point is not insisted on in the argument of counsel, and we will not notice it, further than to say, that the same question was raised upon the same facts and decided by this court adversely to appellants, in the case of the present plaintiff, Scarboro, against The Alabama Midland Railroad Co., 10 So. Rep. 316; s. c. 94 Ala. 497.
Plaintiff sues as a passenger. If he was not such there could be no recovery, by reason of the variance between the allegations and proof, whatsoever may have been the fault or negligence of the defendants causing the injury. It is insisted by appellants that though he may have been rightfully on the train, as a passenger, while riding on the car on which it was customary for passengers to ride, yet he destroyed his character as such and became a trespasser when, on request of the fireman, he left his place on the car and got upon the engine and undertook the work of rubbing the headlight, thus exposing himself to increased danger. We can not assent to the proposition. A passenger does not lose his character as such by negligently assuming a dangerous position on the train. He may thereby, in case of injury, subject himself to the imputation of contributory negligence barring a recovery for the injury produced by the simple negligence of the railroad company, but he is nevertheless a passenger still. In such case there is no variance in respect of his relation to the defendant.
[321]*321It is also insisted that it was a question for the jury whether the plaintiff became a passenger, at all, on the train upon which he was injured; and that charge 8 requested by appellants should have been given. The evidence upon the point is substantially as follows: It is conceded that plaintiff had a pass from the proper authority of the defendants to ride from Bamer to Troy on that train. There is no evidence that the running of this train was governed by any fixed schedule, or that any particular time had been designated or made known at which it would leave Bamer on the day of plaintiff’s injury. The record is wholly silent on that subject. Plaintiff arrived at Bamer about an hour before the train left the station. At that time the engine was standing on the siding with five flat cars in front and four behind it. It was a construction train. A minute or two before the train started plaintiff heard some one call out twice, “all out for Troy,” and he thereupon got upon the flat car immediately in front of the engine, and the engine moved off, pushing the five flat cars which were in front, but leaving standing on the side-track those that were behind it. He did not look to see who called out, “all out for Troy.” In point of fact, the train was not then departing for Troy, but for a water tank two and one-half miles, in a different direction from Bamer, to get water, and intended returning to Bamer as soon as the water was obtained, and then leave for Troy. The collision occurred on the way to the tank. Whether going to the tank or to Troy, it was necessary for the train to move from the siding .in the direction it did, as there was but the one end connection of the siding with the main track. Plaintiff testified that he knew the engine had to get water, but did not know it was going to the tank for water when it pulled out; that he did not know where it was going; did not know the nearest water tank was two and one-half miles this side of Bamer. He testified that there was a water tank on the way to Troy. He further testified that the engine always cut loose from all the cars when it went after water. He had been employed by defendants, in the construction of the road, about four months, but had quit work and had been paid off. His duties, when so employed, were to shovel dirt and load cars. When he boarded the train at Bamer there W6re a good many persons standing about the side-track but plaintiff did not know them. About a dozen persons got aboard the flat cars in front of the engine and were there when the collision occurred. Some of them were injured and one killed. There was a caboose on the side-track at Bamer, and it was customary to attach [322]*322it to the train before moving from point to point, and the train was not ready for Troy until it was attached. • Plaintiff testified that he did not know where the caboose was; that it was there but he did not pay any attention to it; that there were no seats on the train, and it was the custom to sit on the edge of the cars, and when he got aboard he took his seat on the edge of the car and was sitting there when the fireman, a short while after the train started, requested him to get on the front part of the engine and rub the headlight, which he did, and was doing when the collision occurred. The engineer testified as follows: “At the time of the collision the engine was going towards the water tank about two miles from Ramer. I had received instructions from Mr. Hollis, the conductor, in tones loud enough for those around to hear, to take the engine to the water tank preparatory to going to Troy. I was on the engine when I received said orders. The conductor was standing near the engine. I do not say that plaintiff was where he could hear said orders, nor that he was informed of the necessity to go to the tank for water.” The conductor testified that there was about seventy-five persons about the engine when he told the engineer to go for water, and that the engine was making a “right smart fuss.” Plaintiff testified that he did not hear the order. It was shown that the conductor did not go with the train and that he did not know that plaintiff was aboard; nor did the engineer know plaintiff. The plaintiff testified that he knew the conductor when he saw him, but that he did not see him before he got on the train; that he was not on the train at the time of the collision and witness did not know where he, the conductor, was until after the accident.
It is very clear that if plaintiff, when he boarded the train, knew, or under the circumstances, ought to have known, that the train was not then about to depart for Troy, but was going to the tank in another direction, for water, with the intention of returning to Ramer, before departing for Troy, his pass gave him no authority to board it or ride thereon; and that, therefore, he was not, at the time of the injury, a passenger, but a trespasser, and can not recover under the present complaint, let the defendant’s negligence be whatsoever it may. But, if under the then condition and situation of the train, and the actions and conduct of the train officers, viewed in the light of the circumstances surrounding them at the time, the plaintiff was justified in believing, and did honestly believe that the train when he boarded it was about departing for Troy, and if it was impracticable [323]*323for liim to get off after lie discovered his mistake, then he was a passenger and entitled to sne as such.
We have considered the evidence above set out, and hold that it was a question for the jury whether plaintiff was a passenger or not, under the rules above declared, and that charge 8, which the court refused, ought to have been given ; and the principle here announced determines that there was error in the first and second portions of the court’s oral charge, to which exceptions were reserved.
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HEAD, J.
— The question of appellant’s liability for the acts and omissions of the persons operating the colliding trains which inflicted the plaintiff’s injury is raised by a charge requested by appellants and refused by the court, but the point is not insisted on in the argument of counsel, and we will not notice it, further than to say, that the same question was raised upon the same facts and decided by this court adversely to appellants, in the case of the present plaintiff, Scarboro, against The Alabama Midland Railroad Co., 10 So. Rep. 316; s. c. 94 Ala. 497.
Plaintiff sues as a passenger. If he was not such there could be no recovery, by reason of the variance between the allegations and proof, whatsoever may have been the fault or negligence of the defendants causing the injury. It is insisted by appellants that though he may have been rightfully on the train, as a passenger, while riding on the car on which it was customary for passengers to ride, yet he destroyed his character as such and became a trespasser when, on request of the fireman, he left his place on the car and got upon the engine and undertook the work of rubbing the headlight, thus exposing himself to increased danger. We can not assent to the proposition. A passenger does not lose his character as such by negligently assuming a dangerous position on the train. He may thereby, in case of injury, subject himself to the imputation of contributory negligence barring a recovery for the injury produced by the simple negligence of the railroad company, but he is nevertheless a passenger still. In such case there is no variance in respect of his relation to the defendant.
[321]*321It is also insisted that it was a question for the jury whether the plaintiff became a passenger, at all, on the train upon which he was injured; and that charge 8 requested by appellants should have been given. The evidence upon the point is substantially as follows: It is conceded that plaintiff had a pass from the proper authority of the defendants to ride from Bamer to Troy on that train. There is no evidence that the running of this train was governed by any fixed schedule, or that any particular time had been designated or made known at which it would leave Bamer on the day of plaintiff’s injury. The record is wholly silent on that subject. Plaintiff arrived at Bamer about an hour before the train left the station. At that time the engine was standing on the siding with five flat cars in front and four behind it. It was a construction train. A minute or two before the train started plaintiff heard some one call out twice, “all out for Troy,” and he thereupon got upon the flat car immediately in front of the engine, and the engine moved off, pushing the five flat cars which were in front, but leaving standing on the side-track those that were behind it. He did not look to see who called out, “all out for Troy.” In point of fact, the train was not then departing for Troy, but for a water tank two and one-half miles, in a different direction from Bamer, to get water, and intended returning to Bamer as soon as the water was obtained, and then leave for Troy. The collision occurred on the way to the tank. Whether going to the tank or to Troy, it was necessary for the train to move from the siding .in the direction it did, as there was but the one end connection of the siding with the main track. Plaintiff testified that he knew the engine had to get water, but did not know it was going to the tank for water when it pulled out; that he did not know where it was going; did not know the nearest water tank was two and one-half miles this side of Bamer. He testified that there was a water tank on the way to Troy. He further testified that the engine always cut loose from all the cars when it went after water. He had been employed by defendants, in the construction of the road, about four months, but had quit work and had been paid off. His duties, when so employed, were to shovel dirt and load cars. When he boarded the train at Bamer there W6re a good many persons standing about the side-track but plaintiff did not know them. About a dozen persons got aboard the flat cars in front of the engine and were there when the collision occurred. Some of them were injured and one killed. There was a caboose on the side-track at Bamer, and it was customary to attach [322]*322it to the train before moving from point to point, and the train was not ready for Troy until it was attached. • Plaintiff testified that he did not know where the caboose was; that it was there but he did not pay any attention to it; that there were no seats on the train, and it was the custom to sit on the edge of the cars, and when he got aboard he took his seat on the edge of the car and was sitting there when the fireman, a short while after the train started, requested him to get on the front part of the engine and rub the headlight, which he did, and was doing when the collision occurred. The engineer testified as follows: “At the time of the collision the engine was going towards the water tank about two miles from Ramer. I had received instructions from Mr. Hollis, the conductor, in tones loud enough for those around to hear, to take the engine to the water tank preparatory to going to Troy. I was on the engine when I received said orders. The conductor was standing near the engine. I do not say that plaintiff was where he could hear said orders, nor that he was informed of the necessity to go to the tank for water.” The conductor testified that there was about seventy-five persons about the engine when he told the engineer to go for water, and that the engine was making a “right smart fuss.” Plaintiff testified that he did not hear the order. It was shown that the conductor did not go with the train and that he did not know that plaintiff was aboard; nor did the engineer know plaintiff. The plaintiff testified that he knew the conductor when he saw him, but that he did not see him before he got on the train; that he was not on the train at the time of the collision and witness did not know where he, the conductor, was until after the accident.
It is very clear that if plaintiff, when he boarded the train, knew, or under the circumstances, ought to have known, that the train was not then about to depart for Troy, but was going to the tank in another direction, for water, with the intention of returning to Ramer, before departing for Troy, his pass gave him no authority to board it or ride thereon; and that, therefore, he was not, at the time of the injury, a passenger, but a trespasser, and can not recover under the present complaint, let the defendant’s negligence be whatsoever it may. But, if under the then condition and situation of the train, and the actions and conduct of the train officers, viewed in the light of the circumstances surrounding them at the time, the plaintiff was justified in believing, and did honestly believe that the train when he boarded it was about departing for Troy, and if it was impracticable [323]*323for liim to get off after lie discovered his mistake, then he was a passenger and entitled to sne as such.
We have considered the evidence above set out, and hold that it was a question for the jury whether plaintiff was a passenger or not, under the rules above declared, and that charge 8, which the court refused, ought to have been given ; and the principle here announced determines that there was error in the first and second portions of the court’s oral charge, to which exceptions were reserved. As we have already indicated, the reasonable belief of plaintiff that the train, when he boarded it, was about to depart for Troy, must under the circumstances of this case have been justified by some conduct on the part of defendants’ officers or servants having control or direction of the trains’ movements. In other words, the circumstances justifying such belief must have been of the defendants’ creation. If the defendants or their agents had done nothing, to justify the belief, and plaintiff acted upon what was said or done by others which was not authorized by defendants or their servants in charge of the train, or which was not at the time expressly or impliedly ratified or acquiesced in by them, the defendants can not be held responsible for the existence of his belief. The evidence does not show who it was who called, “All out for Troy,” nor where he was at the time, and it was at least a question for. the jury whether any servant of defendant heard or knew that such a call had been made. Again, there is no evidence that any officer or agent having control of the train had any knowledge that plaintiff had a pass to ride or expected to ride on that train to Troy, or elsewhere; and it was at least a question for the jury whether either of them knew plaintiff intended to, or had boarded the train; yet the portions of the oral charge under consideration assumed that they did, and asserted, m effect, that plaintiff should have been warned not to go on that train. These remarks, we think, will serve to point out the objectionable features of the portions of the charge under review.
The evidence in this case is undisputed, that fhe customary and proper place for persons having passes from defendants to ride on their train was on a car. They had no right to ride on the engine, where plaintiff was riding when he was injured. It is not shown that the fireman had any authority to invite him to ride there, and presumptively he had none. Plaintiff does not claim that he was an employe of the defendants, rightfully employed to rub the head-light. He sues in an entirely different character, to-wit, as a pass[324]*324enger. Henee, there can be no pretense, as a support of this action, that- the fireman was authorized to employ and did employ him to do the work he was engaged upon. From his own standpoint, he was a passenger on the train who left his proper position on the car and took a place on the engine without being assigned to that place by the conductor or any person authorized thereto. He was, therefore, guilty of negligence in taking a place on the engine. If this negligence on his part proximately contributed to the injury he received, he can not recover, unless the collision was caused by the wanton', or intentional negligenoe or misconduct of the defendants or their servants, or such reckless misconduct as was the moral equivalent thereof. Under the evidence these were questions for the jury, viz: Did plaintiff’s negligence proximately contribute to the injury, and if yea, was there wanton, reckless or intentional negligence or misconduct on the part of defendants, or their servants, as above described, causing the injury? -The third portion of the court’s oral charge to which exception was reserved was, therefore, erroneous.
As we have said, it was a question for the jury whether plaintiff was a passenger on the train or not at the time he was injured. The undisputed evidence shows that defendants were guilty of negligence causing the injury; but whether plaintiff’s negligence proximately contributed to the injury, and if it did, whether that defense was overcome by. wanton, reckless or intentional negligence or misconduct on the part of defendant’s servants, as above stated, being-questions for the jury, the general affirmative charge requested by defendants was properly refused.
What we have said will sufficiently indicate the errors of charges 2, 3, 5 and 6, requested by defendants.
The seventh charge requested by defendants ignores the inquiry whether plaintiff’s contributory negligence, therein correctly hypothesized, was overcome by wanton, reckless or intentional misconduct of defendants, which there was evidence tending to show, and for that reason was properly refused.
For the errors pointed out the judgment of the Circuit Court is reversed, and the cause remanded.
Reversed and remanded.