The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Margaret Salmon, administratrix of-the estate of Daniel Salmon de[89]*89ceased, against the Kansas Pacific Railway Company, to recover damages for wrongfully causing the- death of said Daniel Salmon. The issues were tried by a’jury; and on the trial the parties submitted the following agreed statement of facts to the jury as evidence, to-wit:
“ 1st. The plaintiff is the administratrix of the estate of Daniel Salmon deceased, duly and legally appointed, as in the petition alleged. 2d.-At the time of death of Daniel Salmon, he left surviving him, the plaintiff Margaret Salmon, his widow, and two children of the said Margaret and the said Daniel, issue of their marriage. 3d.-The defendant is a corporation and common carrier, as alleged in the petition, and also of freight trains; and as such owned and operated the line of railroad alleged in the petition. 4th.-On the 13th of September 1870 said Daniel Salmon was, and for a long time previous thereto had been in the employ of the defendant as locomotive engineer. The family of the said Salmon resided at Ellsworth, and the said Salmon was, by permission of the defendant, accustomed, on days when it was not his regular turn to run an engine, to return upon his route on defendant’s trains to Ellsworth, a distance of twenty-three' miles from Brookville, to stay with his family, instead of remaining at Brookville, which was the eastern end of his regular run as an engineer; and this was not forbidden by the foremen of engineers, his immediate superior, but was by the consent and permission of the defendant; but he was then subject to be ordered by defendant to take charge of any engine of defendant at any moment. And on the morning of the said 13th of September, having remained all night with his family at Ellsworth, he set out to ride to Brookville, as was his custom to do, upon the defendant’s freight train, (which did not carry passengers, and was by the defendant forbidden to do so, unless the facts herein stated constituted the deceased a passenger,) to take his run; that is, to operate an engine from Brookville westward, according to his regular turn ;• and as such employee, by permission of the conductor in charge of the freight-train from Ellsworth to Brookville, being a freight-train with a caboose car, in which laborers on the line of the said railway, and other employees, had been and were accustomed to travel to their work on said road, with the assent and permission of the defendant said Salmon got into the caboose car for the purpose of going to Brook-ville to resume his duties as such engineer at said point. He [90]*90paid no fare, nor was he requested by the conductor to pay any fare, and was known tó the conductor as an employee as aforesaid; and the said Salmon knew the usages of defendant respecting the prohibition of passengers upon freight trains. He was not actually employed in operating that train in any capacity, and such facts were known to the conductor of such train. On the road between Ellsworth and Brookville, in the state of Kansas, and while said Daniel Salmon was in the caboose car as aforesaid, the train was endeavoring to ascend a heavy grade, and being unable to do so, backed down the grade, and came in collision with another train belonging to said defendant, going in an opposite direction from the way the aforesaid train was backing down. The trains so coming into collision, the car in which said Daniel Salmon was, was crushed without fault or negligence on his part, and was thrown from the track, and he mortally wounded thereby, from which mortal wound he died the succeeding day. That the injury received by him and from which he died, was not occasioned by any neglect or fault on his part, other than may be legitimately inferred from the facts aforesaid.”
1. Passengers;employees. There was some evidence introduced on the trial, but nothing that in the least affects or modifies the foregoing agreed statement of facts. ' The jury found a#special verdict; and in their verdict they found the facts literally as agreed to in the foregoing statement, except that they omitted the following concluding words of the agreed statement of facts, to-wit — “other than may be legitimately inferred from the facts aforesaid.” The jury made some other findings, but it is scarcely necessary to notice them, for those that harmonize with the foregoing statement of facts raise no question of law not already raised by such agreed statement, and those that conflict with said agreed statement were found by the jury without any evidence to sustain them, and against the evidence. The main, and in fact the only question in this case is, whether the deceased was a passenger, or merely an employee of the defendant, while riding on the defendant’s train. If he was a passenger, the other facts would undoubtedly give the plaintiff the right to recover, in this case; but if he was merely an employee, the plaintiff [91]*91would not have any such right. The court among other instructions charged the jury as follows:
“I instruct you, that the mere, naked, unexplained fact of a collision of two trains of cars, operated by the same railroad company, raises the presumption of negligence on the part of the company.”
2. Negligence-company-co-employee. 3. Collision of trains; presumption. And the jury, in pursuance of this instruction, found as follows: “ 5th.-The death of said Daniel Salmon was caused by the negligence of the defendant, without any fault of the said Daniel Salmon” — and upon this finding the court below rendered judgment for the plaintiff and against the defendant. All this would have been correct if the deceased had been a passenger; but it was certainly incorrect if the deceased was only an employee of the company. The said collision was the only proof of negligence on the part of the railroad company introduced on the trial. A collision always presumptively shows negligence, but whether negligence of the company, or negligence merely of some one or more of its officers, agents, or employees, is the important question in this case. As between the railroad company and a passenger, the negligence of any officer, agent, employee or servant of the company is the negligence of the company itself; but as between the railway company and one of its employees, the negligence of another employee, a co-employee, is not at all the negligence of the company. (Dow v. K. P. Rly. Co., 8 Kas., 642.) Therefore while a collision presumptively proves negligence on the part of the company as between the company and a passenger, yet it never proves negligence on the part of the company as between the company and one of its employees. It is a general rule that one employee does not represent the principal any more than any other employee; and negligence between co-employees is not at all the negligence of the principal. This rule has its exceptions. As to railroad companies, the general manager, the general superintendent, the general officer for the employment or discharge of the other agents and servants of the railway company, or indeed any other [92]*92general officer, would probably be the representative of the company, in fact the company, as between the company and all other persons, whether such persons were employees or not. But proof of a collision does not at all show negligence on the part of any one of these general officers.
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The opinion of the court was delivered by
Valentine, J.:
This was an action brought by Margaret Salmon, administratrix of-the estate of Daniel Salmon de[89]*89ceased, against the Kansas Pacific Railway Company, to recover damages for wrongfully causing the- death of said Daniel Salmon. The issues were tried by a’jury; and on the trial the parties submitted the following agreed statement of facts to the jury as evidence, to-wit:
“ 1st. The plaintiff is the administratrix of the estate of Daniel Salmon deceased, duly and legally appointed, as in the petition alleged. 2d.-At the time of death of Daniel Salmon, he left surviving him, the plaintiff Margaret Salmon, his widow, and two children of the said Margaret and the said Daniel, issue of their marriage. 3d.-The defendant is a corporation and common carrier, as alleged in the petition, and also of freight trains; and as such owned and operated the line of railroad alleged in the petition. 4th.-On the 13th of September 1870 said Daniel Salmon was, and for a long time previous thereto had been in the employ of the defendant as locomotive engineer. The family of the said Salmon resided at Ellsworth, and the said Salmon was, by permission of the defendant, accustomed, on days when it was not his regular turn to run an engine, to return upon his route on defendant’s trains to Ellsworth, a distance of twenty-three' miles from Brookville, to stay with his family, instead of remaining at Brookville, which was the eastern end of his regular run as an engineer; and this was not forbidden by the foremen of engineers, his immediate superior, but was by the consent and permission of the defendant; but he was then subject to be ordered by defendant to take charge of any engine of defendant at any moment. And on the morning of the said 13th of September, having remained all night with his family at Ellsworth, he set out to ride to Brookville, as was his custom to do, upon the defendant’s freight train, (which did not carry passengers, and was by the defendant forbidden to do so, unless the facts herein stated constituted the deceased a passenger,) to take his run; that is, to operate an engine from Brookville westward, according to his regular turn ;• and as such employee, by permission of the conductor in charge of the freight-train from Ellsworth to Brookville, being a freight-train with a caboose car, in which laborers on the line of the said railway, and other employees, had been and were accustomed to travel to their work on said road, with the assent and permission of the defendant said Salmon got into the caboose car for the purpose of going to Brook-ville to resume his duties as such engineer at said point. He [90]*90paid no fare, nor was he requested by the conductor to pay any fare, and was known tó the conductor as an employee as aforesaid; and the said Salmon knew the usages of defendant respecting the prohibition of passengers upon freight trains. He was not actually employed in operating that train in any capacity, and such facts were known to the conductor of such train. On the road between Ellsworth and Brookville, in the state of Kansas, and while said Daniel Salmon was in the caboose car as aforesaid, the train was endeavoring to ascend a heavy grade, and being unable to do so, backed down the grade, and came in collision with another train belonging to said defendant, going in an opposite direction from the way the aforesaid train was backing down. The trains so coming into collision, the car in which said Daniel Salmon was, was crushed without fault or negligence on his part, and was thrown from the track, and he mortally wounded thereby, from which mortal wound he died the succeeding day. That the injury received by him and from which he died, was not occasioned by any neglect or fault on his part, other than may be legitimately inferred from the facts aforesaid.”
1. Passengers;employees. There was some evidence introduced on the trial, but nothing that in the least affects or modifies the foregoing agreed statement of facts. ' The jury found a#special verdict; and in their verdict they found the facts literally as agreed to in the foregoing statement, except that they omitted the following concluding words of the agreed statement of facts, to-wit — “other than may be legitimately inferred from the facts aforesaid.” The jury made some other findings, but it is scarcely necessary to notice them, for those that harmonize with the foregoing statement of facts raise no question of law not already raised by such agreed statement, and those that conflict with said agreed statement were found by the jury without any evidence to sustain them, and against the evidence. The main, and in fact the only question in this case is, whether the deceased was a passenger, or merely an employee of the defendant, while riding on the defendant’s train. If he was a passenger, the other facts would undoubtedly give the plaintiff the right to recover, in this case; but if he was merely an employee, the plaintiff [91]*91would not have any such right. The court among other instructions charged the jury as follows:
“I instruct you, that the mere, naked, unexplained fact of a collision of two trains of cars, operated by the same railroad company, raises the presumption of negligence on the part of the company.”
2. Negligence-company-co-employee. 3. Collision of trains; presumption. And the jury, in pursuance of this instruction, found as follows: “ 5th.-The death of said Daniel Salmon was caused by the negligence of the defendant, without any fault of the said Daniel Salmon” — and upon this finding the court below rendered judgment for the plaintiff and against the defendant. All this would have been correct if the deceased had been a passenger; but it was certainly incorrect if the deceased was only an employee of the company. The said collision was the only proof of negligence on the part of the railroad company introduced on the trial. A collision always presumptively shows negligence, but whether negligence of the company, or negligence merely of some one or more of its officers, agents, or employees, is the important question in this case. As between the railroad company and a passenger, the negligence of any officer, agent, employee or servant of the company is the negligence of the company itself; but as between the railway company and one of its employees, the negligence of another employee, a co-employee, is not at all the negligence of the company. (Dow v. K. P. Rly. Co., 8 Kas., 642.) Therefore while a collision presumptively proves negligence on the part of the company as between the company and a passenger, yet it never proves negligence on the part of the company as between the company and one of its employees. It is a general rule that one employee does not represent the principal any more than any other employee; and negligence between co-employees is not at all the negligence of the principal. This rule has its exceptions. As to railroad companies, the general manager, the general superintendent, the general officer for the employment or discharge of the other agents and servants of the railway company, or indeed any other [92]*92general officer, would probably be the representative of the company, in fact the company, as between the company and all other persons, whether such persons were employees or not. But proof of a collision does not at all show negligence on the part of any one of these general officers. It tends more properly to show negligence on the part of the brakeman, the fireman, the engineer, the conductor, or some other inferior officer, agent or servant of the company, who has a more close and direct connection with the collision.
Was the deceased a passenger? We think not. It is not every person who may enter a car, or go upon a train, or even ride upon a train, that can thereby claim that he is a passenger, or that he is entitled to all the rights and privileges of a passenger. (U. P. Rly. Co. v. Nichols, 8 Kas., 505.) Among the reasons why the deceased was not a passenger in the legal sense of the term we would state the following: He bought no ticket, paid no fare, nor offered to buy any ticket or pay any fare; nor did- he intend to buy any ticket or pay any fare. He did not at any time claim to be a passenger, or act as such. He did not go into a passenger car, nor upon a passenger train. But on the contrary, as he was a mere employee of the railway company, he chose to ride as such, and all the time acted as such. He went into a caboose car attached to a freight train, and rode in such caboose car as an employee of the company, because he was an employee, where other 'servants and employees of the company rode, and from which passengers, and all other persons except employees of the company, were excluded; and of •this exclusion the deceased had full knowledge. He was going from his home to the place of his employment, as was his custom, for the purpose of performing the duties of his employment, and rode in the caboose car on a freight train, and paid no fare, according to custom, usage, understanding and agreement of the parties. Now, as the facts of this case show beyond all doubt that the deceased was not a passenger, but merely an employee of tlie company, the charge of the court was erroneous, the finding of the jury with regard to [93]*93negligence of the company was erroneous, not being sustained by any evidence, and the judgment founded on the verdict wás erroneous. The plaintiff did not by the evidence make out any case against the defendant, and the court therefore erred in refusing to grant a new trial. [Higgins v. Han. & St. Jo. Rld. Co., 36 Mo., 418; Gilshannon v. Stony Brook Rld. Co., 10 Cush., 288; Seaver v. Boston & Maine Rld. Co., 14 Gray, 466: Russell v. Hudson River Rld. Co., 17 N. Y., 134.) Chapter 93 of the laws of 1870, p. 197, has no application to this case. That act applies only where a railway company, as a company, has been negligent, and does not apply to negligence between co-employees of a railway company. The judgment- of the court below must be reversed, and cause remanded for a new trial.
All the Justices concurring.