Cole, J.
Many of tbe important questions in this case relating to tbe rights of passengers, and tbe duties and obligations of railroad companies in respect to them, we shall not attempt to decide on this appeal, although they were elaborately discussed at tbe bar. Our decision must go upon rather narrow grounds, and rest upon tbe facts of this case. ■ A number of instructions asked on tbe part of tbe defendant, and bearing upon the general questions of tbe rights of passengers and duties of carriers, were given by tbe circuit court. One vital question in tbe ease was, whether, in view of tbe facts disclosed on tbe trial, the relation of passenger and carrier existed at tbe time of the injury. Tbe circuit court charged that, although the plaintiff was on tbe train and suffered tbe injury complained of, yet be could not recover unless ibis relation existed. Further, at tbe request of tbe defendant, tbe court charged in sixbstance, that tbe law was, that a person, by tbe act of getting upon or into a train of cars in which passengers are usually or ordinarily carried, as in a regular passenger car in a passenger train, became entitled to the rights of a passenger, subject to tbe payment of bis fare; and that tbe same rule applied to a person getting into a caboose upon a freight train in wbicb passengers were ordinarily carried. Tbe jury were also told that a person’s getting in a box or freight car adapted to or being used for tbe transportation of freight only, without tbe knowledge or consent of tbe conductor or servants in charge of tbe train, would not have that effect, nor would it make such person a passenger [118] on tbe train so that the company would owe him any duty or be under any obligations to him as such. Then, in respect to the payment of fare, the court submitted the question to the jury, whether the plaintiff’s fare was paid through from Castalia to Lyle with the knowledge on the part of Ilopkins that the plaintiff was riding in the car with the horses and expected to go through to his destination, and without any knowledge on the part of the plaintiff or of Mr. Nye that Hopkins, the conductor, was violating any of the rules of the company, if any were in fact violated by what wras done. In the special verdict, the jury found that Hopkins, the conductor from Castalia to Austin, did receive the fare for the plaintiff to Lyle; and therefore this must be deemed a fact established in the case. But it was claimed on the trial in the court below, and the point is insisted upon here, that Hopkins had no authority in fact from the company to collect fare or make any arrangement for carrying persons from Austin to Lyle over a different division or portion of road from that over which his run extended; and the jury found that he had no such authority, and had no right to collect or receive fare for carrying persons from Austin to Lyle. But the court held that it would make no difference whether or not the conductor had authority to receive fare for carrying persons beyond his run, provided neither the plaintiff nor Nye knew, when the fare was paid, that the conductor was violating the rules of the company by receiving it. But, assuming, for the pui’poses of this case, that the defendant would be bound by the receipt of the fare by Hopkins for the entire route, still the further question arises, Was the court right in its ruling in respect to notice that plaintiff was in the box car, and as to his duty to bring that fact to the attention of the conductor of the train on which he was injured?
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Cole, J.
Many of tbe important questions in this case relating to tbe rights of passengers, and tbe duties and obligations of railroad companies in respect to them, we shall not attempt to decide on this appeal, although they were elaborately discussed at tbe bar. Our decision must go upon rather narrow grounds, and rest upon tbe facts of this case. ■ A number of instructions asked on tbe part of tbe defendant, and bearing upon the general questions of tbe rights of passengers and duties of carriers, were given by tbe circuit court. One vital question in tbe ease was, whether, in view of tbe facts disclosed on tbe trial, the relation of passenger and carrier existed at tbe time of the injury. Tbe circuit court charged that, although the plaintiff was on tbe train and suffered tbe injury complained of, yet be could not recover unless ibis relation existed. Further, at tbe request of tbe defendant, tbe court charged in sixbstance, that tbe law was, that a person, by tbe act of getting upon or into a train of cars in which passengers are usually or ordinarily carried, as in a regular passenger car in a passenger train, became entitled to the rights of a passenger, subject to tbe payment of bis fare; and that tbe same rule applied to a person getting into a caboose upon a freight train in wbicb passengers were ordinarily carried. Tbe jury were also told that a person’s getting in a box or freight car adapted to or being used for tbe transportation of freight only, without tbe knowledge or consent of tbe conductor or servants in charge of tbe train, would not have that effect, nor would it make such person a passenger [118] on tbe train so that the company would owe him any duty or be under any obligations to him as such. Then, in respect to the payment of fare, the court submitted the question to the jury, whether the plaintiff’s fare was paid through from Castalia to Lyle with the knowledge on the part of Ilopkins that the plaintiff was riding in the car with the horses and expected to go through to his destination, and without any knowledge on the part of the plaintiff or of Mr. Nye that Hopkins, the conductor, was violating any of the rules of the company, if any were in fact violated by what wras done. In the special verdict, the jury found that Hopkins, the conductor from Castalia to Austin, did receive the fare for the plaintiff to Lyle; and therefore this must be deemed a fact established in the case. But it was claimed on the trial in the court below, and the point is insisted upon here, that Hopkins had no authority in fact from the company to collect fare or make any arrangement for carrying persons from Austin to Lyle over a different division or portion of road from that over which his run extended; and the jury found that he had no such authority, and had no right to collect or receive fare for carrying persons from Austin to Lyle. But the court held that it would make no difference whether or not the conductor had authority to receive fare for carrying persons beyond his run, provided neither the plaintiff nor Nye knew, when the fare was paid, that the conductor was violating the rules of the company by receiving it. But, assuming, for the pui’poses of this case, that the defendant would be bound by the receipt of the fare by Hopkins for the entire route, still the further question arises, Was the court right in its ruling in respect to notice that plaintiff was in the box car, and as to his duty to bring that fact to the attention of the conductor of the train on which he was injured?
The jury found that neither the conductor nor any person in charge of the train from Austin to Lyle, before the accident, knew or had reason to believe that the plaintiff was in [119] tbe box ear; and that tbe plain tiff did not, nor did any one for bim, do anything to apprise tbe conductor or those in charge of that train, that be bad entered that car or was riding therein. Tbe uncontradicted evidence shows that tbe conductor, Hopkins, found the plaintiff in tbe box car with tbe horses when be collected fare at least to Austin, and left tbe plaintiff in that car until tbe train arrived at Austin. And tbe fact is indisputable, that tbe plaintiff, tbe next morning, at Austin, went into tbe box car where tbe horses were, without tbe knowledge or consent of tbe conductor or those in charge of tbe train to Lyle, and did nothing to bring that fact to their attention before tbe fire was discovered. As bearing upon these facts, tbe court was requested to instruct tbe jury that if they found from tbe evidence that tbe train from Austin to Lyle was made up of ordinary box or freight cars, with a caboose attached in which persons passing on tbe trains rode, and also found that tbe plaintiff went, into tbe freight or-box car without tbe knowledge or consent of tbe conductor or those in charge of tbe train from Austin to Lyle, and did nothing to bring that fact to their attention before tbe accident occurred, and they bad no good reason to suppose he was in that car, then be did not, by so getting into that car, become a passenger on that train so as to make tbe defendant responsible for bis safety; and whether be bad or bad not tbe right to ride over tbe road from Austin to Lyle on that or any other train, would make no difference; even bad be purchased a ticket from Austin to Lyle and so conducted himself, it would make no difference; for in such a ease there could be no recovery. Tbe court refused to give this instruction, but did charge that if tbe plaintiff’s fare was paid while be was in tbe car with tbe horses, with tbe understanding upon tbe part of tbe conductor that be was taking care of tbe horses and was to take charge of them and ride in tbe car through to Lyle, and with no knowledge upon tbe plaintiff’s or Mr. Nye’s part that tbe conductor was acting without au[120] thority and violating the rifles of the company, then the company was chargeable with notice of his presence in the car until it arrived at its destination; and that his rights were the rights of a passenger thereon to the end of his journey. The substance of this ruling of the coirrt was, that if Hopkins, when he collected the plaintiff’s fare to the end of his journey, knew .that he was in the box car for the purpose of taking care of the horses, the next conductor was chargeable with knowledge of the same facts, and was bound to take proper precautions for his safety as a passenger while in that car, though he actually had no notice that the plaintiff was in the car, and the plaintiff did nothing to apprise him, or those in charge of the train, that he had entered that car or was riding therein. It was claimed that the second conductor and train men were guilty of negligence in closing the door of this box-car'in the usual manner, and in placing the car next to the locomotive. It will be borne in mind that the car wab the common bo^ or stock car, and was dropped out of the train it was in whep. it reached Austin. On the next morning, the car was placed in another train made up at Austin, which ran south to Lyle over another division of the defendant’s road. A new conductor and a new set of train men took charge of the train. The goods in this car took fire before reaching Lyle, and the fire was not discovered until the plaintiff was nearly suffocated. Mr. Nye, whose name was written upon the contract as the person in charge of the horses, was riding in the caboose, and said nothing to the conductor about the plaintiff being in the box-car. Indeed, the conductor had no reason to suppose that there was any one in the car with the horses, and it would probably have been negligence to have started the train without fastening the door in the usual manner if no one had been in the car. Betts et al. v. Farmers’ Loan and Trust Co., 21 Wis., 81. The plaintiff saw fit to go into this car used only for the transportation of stock and freight, where passengers seldom or never ride except for special reasons, and [121] where the conductor would not think of looking for any one; and this the plaintiff did without the knowledge or consent of the persons in charge of the train. He strangely did nothing and said nothing to indicate his presence in that car wffen the employees of the company came to fasten the door. It seems to us it was his duty then to notify the train men where he was, in order that they might leave the door of the car unfastened, or use proper means for his personal safety. A distinction should be made between the case of a passenger paying his fare who secretly gets into a box car, and one getting into a car where passengers are ordinarily carried. In the former, case, the passenger assumes the risk of riding upon such a car, and it is unreasonable to hold the carrier to the same rule of liability in respect to him that would attach if he were riding in a passenger car. As a general rule the soundness of this view would probably not be questioned. Does, then, the fact -that conductor Hopkins knew that the plaintiff rode in the box car with the horses the entire preceding day, affect the question, or relieve the plaintiff from the duty of notifying the conductor, or persons in charge of the train from Austin to Lyle, that he had entered that car or was riding therein? It seems to us it does not. ¥e think, under the circumstances, it was the plaintiff’s duty to have apprised the second coirduetor or train men that he was in the car, and thus prevented the closing of the door. What reason is there for charging the conductor of a different train with the knowledge of Hopkins, that on the day before plaintiff rode in this car? The plaintiff was not obliged to ride in that car, but might at any time have taken the passenger caboose. But because he took that car in the first place, and because Hopkins, who -received the fare, knew he was in the car taking care of the horses, the court charged that the company was chargeable with notice of his presence in the car until it arrived at its destination. This charge has a direct bearing upon the act of negligence in closing the door of the [122] freight car, which was rehjed on as one ground of recovery. We think it was erroneous when applied to the undisputed facts of the case, and that it was prejudicial to the rights of the defendant. So, without passing upon the other questions discussed by counsel, we grant a new trial for this error in the charge.
By the Oov/rt. — The judgment of the circuit court is reversed, and a new trial ordered.