BARTCH, J.,
after a statement of the case, as above, delivered the opinion of the court.
1 The question to be considered upon this appeal are presented through ai bill of exceptions and the respondent has interposed a motion to strike out the bill upon the ground that the same was not served upon counsel for the plaintiff within thirty days from the time of the overruling of the motion for a new trial, as provided by statute. Section 3286, Rev. St. 1898. It is insisted that the court had no authority to settle and allow the bill, and relieve the appellant from the consequences of its failure to serve the bill in time, the same not having been served until 32 days after overruling the motion for a new trial. The appellant contends that the court had the power, under section 3005, Rev. St. 1898, to grant the relief. That section, among other things, provides: “The court may, in furtherance of justice, . . . upon such terms as may be just, relieve a party or his legal representative from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” This provision in express terms confers power upon a court to relieve a party from any “proceeding taken against him through his mistake, inadvertence, surprise, or /excusable neglect.” Within the meaning and intent of the provision, a settlement of a bill of exceptions is a proceeding in an action, and so is also an objection to such bill, and a motion to disregard it on the ground that it was not served upon opposite counsel within the time specified in the statute. The court therefore had the discretionary power to grant the relief sought upon a proper [99] showing having been made therefor; and we think the showing made herein was sufficient to entitle the appellant to the relief granted. There is nothing to show an ahnse of the discretion on the part of the conrt. The discretion in this case was manifestly exercised in accordance with the terms'and spirit of the statute, and this conrt will not interfere therewith. The Supreme Court of California, as to a similar provision of statute, has ruled likewise. Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. 332; Scott v. Glenn, 97 Cal. 513, 32 Pac. 573.
[100] 2 [99] When the plaintiff rested, the defendant interposed a motion for a nonsuit upon the grounds, inter alia, that the evidence disclosed no acts on the part of. the railroad company, or set of circumstances, showing or ¡tending to show that the deceased was either wantonly, or willfully, or maliciously, or intentionally injured by any of its authorized servants acting within the scope of the employment; and that the evidence failed to connect the time, place, or circumstances of the injury and death of the deceased with any such act of the defendant. This motion was overruled, and the action of the court in the premises has been assigned as error. The appellant insists not only that there was no proof to warrant the overruling of the motion for a nonsuit, but also that, after the introduction of all the evidence in the case there was no proof to justify the verdict of the jury, and that, therefore, the defendant’s motion for a new trial, which was also denied, should have been granted. After a very careful examination of all the evidence contained in the abstract of record, we are of the opinion that the contention of the appellant, both as to the motion for nonsuit and for a new trial, is well founded. The deceased was not a passenger, and there was no obligation imposed by law upon the railroad company to carry him safely. There were no contract relations existing between him and the railroad company. Nor were the parties brought into' such a situation that they had relative rights, so that out of their relations a duty on the part of the company arose other [100] than what it owes to a trespasser. The deceased, with his companions in wrong, was a mere naked trespasser, with intent to perpetrate a wrong upon the company by attempting to secure a ride upon its train without payment of fare. When he boarded the train, as he did, without right, he assumed all the risks incident to his perilous undertaking, and the company owed him no duty and was under no responsibility to him except to prevent its servants, while acting within the scope of their employment, from inflicting any wilful, wanton, or intentional injury upon him. “Under settled rules of public policy, railway companies are not' to be made liable for injuries received by trespassers upon their trains, unless the injury is inflicted under circumstances indicating wantonness or will fuL. ess in the servants of the companies.” Railway Co. v. Burnsed, 70 Miss. 437, 12 South. 958, 35 Am. St. 656; I. C. R, R. Co. v. King, 179 Ill. 91, 53 N. E. 552, 70 Am. St. 93; Planz v. Boston & A. R. R. Co., 157 Mass. 377, 32 N. E. 356, 17 L. R. A. 835; P. C. C. & St. L. Ry. Co. v. Redding, 140 Ind. 101, 39 N. E. 921, 34 L. R. A. 767; Bess v. C. & O. R. Co., 35 W. Va. 492, 14 S. E. 234, 29 Am. St. 820; Railroad Co. v. Meacham, 91 Tenn. 428, 19 S. W. 232.
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BARTCH, J.,
after a statement of the case, as above, delivered the opinion of the court.
1 The question to be considered upon this appeal are presented through ai bill of exceptions and the respondent has interposed a motion to strike out the bill upon the ground that the same was not served upon counsel for the plaintiff within thirty days from the time of the overruling of the motion for a new trial, as provided by statute. Section 3286, Rev. St. 1898. It is insisted that the court had no authority to settle and allow the bill, and relieve the appellant from the consequences of its failure to serve the bill in time, the same not having been served until 32 days after overruling the motion for a new trial. The appellant contends that the court had the power, under section 3005, Rev. St. 1898, to grant the relief. That section, among other things, provides: “The court may, in furtherance of justice, . . . upon such terms as may be just, relieve a party or his legal representative from a judgment, order or other proceeding taken against him through his mistake, inadvertence, surprise or excusable neglect.” This provision in express terms confers power upon a court to relieve a party from any “proceeding taken against him through his mistake, inadvertence, surprise, or /excusable neglect.” Within the meaning and intent of the provision, a settlement of a bill of exceptions is a proceeding in an action, and so is also an objection to such bill, and a motion to disregard it on the ground that it was not served upon opposite counsel within the time specified in the statute. The court therefore had the discretionary power to grant the relief sought upon a proper [99] showing having been made therefor; and we think the showing made herein was sufficient to entitle the appellant to the relief granted. There is nothing to show an ahnse of the discretion on the part of the conrt. The discretion in this case was manifestly exercised in accordance with the terms'and spirit of the statute, and this conrt will not interfere therewith. The Supreme Court of California, as to a similar provision of statute, has ruled likewise. Stonesifer v. Kilburn, 94 Cal. 33, 29 Pac. 332; Scott v. Glenn, 97 Cal. 513, 32 Pac. 573.
[100] 2 [99] When the plaintiff rested, the defendant interposed a motion for a nonsuit upon the grounds, inter alia, that the evidence disclosed no acts on the part of. the railroad company, or set of circumstances, showing or ¡tending to show that the deceased was either wantonly, or willfully, or maliciously, or intentionally injured by any of its authorized servants acting within the scope of the employment; and that the evidence failed to connect the time, place, or circumstances of the injury and death of the deceased with any such act of the defendant. This motion was overruled, and the action of the court in the premises has been assigned as error. The appellant insists not only that there was no proof to warrant the overruling of the motion for a nonsuit, but also that, after the introduction of all the evidence in the case there was no proof to justify the verdict of the jury, and that, therefore, the defendant’s motion for a new trial, which was also denied, should have been granted. After a very careful examination of all the evidence contained in the abstract of record, we are of the opinion that the contention of the appellant, both as to the motion for nonsuit and for a new trial, is well founded. The deceased was not a passenger, and there was no obligation imposed by law upon the railroad company to carry him safely. There were no contract relations existing between him and the railroad company. Nor were the parties brought into' such a situation that they had relative rights, so that out of their relations a duty on the part of the company arose other [100] than what it owes to a trespasser. The deceased, with his companions in wrong, was a mere naked trespasser, with intent to perpetrate a wrong upon the company by attempting to secure a ride upon its train without payment of fare. When he boarded the train, as he did, without right, he assumed all the risks incident to his perilous undertaking, and the company owed him no duty and was under no responsibility to him except to prevent its servants, while acting within the scope of their employment, from inflicting any wilful, wanton, or intentional injury upon him. “Under settled rules of public policy, railway companies are not' to be made liable for injuries received by trespassers upon their trains, unless the injury is inflicted under circumstances indicating wantonness or will fuL. ess in the servants of the companies.” Railway Co. v. Burnsed, 70 Miss. 437, 12 South. 958, 35 Am. St. 656; I. C. R, R. Co. v. King, 179 Ill. 91, 53 N. E. 552, 70 Am. St. 93; Planz v. Boston & A. R. R. Co., 157 Mass. 377, 32 N. E. 356, 17 L. R. A. 835; P. C. C. & St. L. Ry. Co. v. Redding, 140 Ind. 101, 39 N. E. 921, 34 L. R. A. 767; Bess v. C. & O. R. Co., 35 W. Va. 492, 14 S. E. 234, 29 Am. St. 820; Railroad Co. v. Meacham, 91 Tenn. 428, 19 S. W. 232.
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[100] Viewed in the light of the foregoing principles, is the evidence now before us such as to entitle the plaintiff to recover damages against the railroad company? In determining this question we will assume, although it is not clearly proven, that an employee of the company pulled the deceased from the train or steps of the car. The burden of proof was upon the plaintiff to show that the employee willfully, intentionally, or wantonly caused the injury which resulted in death, and, unless the act of pulling the deceased from the steps of the ear occasioned such injury, there is absolutely no evidence to render the company liable, for there is no proof whatever that, subsequent to that occurrence, any one of its employees either saw or laid hands on the deceased. Now, the transaction of pulling [101] the deceased from the steps, according to the undisputed testimony — in fact, according to the plaintiff’s own testimony — occurred at the next to the last stop the train made for the purpose of ejecting these trespassers, at a place about six or seven miles north of Brigham City, on the west side of the train, and the. following morning the dead body was found about eight miles north -of Brigham city, lying on the east side of the railroad track. So that the only act' in evidence upon which the plaintiff could at all rely for a recovery was done or committed on the west side of the railway track, at a point from one to two miles south of the place where the body was found on the east side of the track. Turning now to the pleadings, it will be observed that the plaintiff alleges that the deceased died “ immediately” upon “his skull being crushed and broken,” and the proof shows the injury to have been of such a character as would produce death instantaneously. The injury having thus admittedly caused instant death, it is manifest that the act of the employee was not the cause thereof. This is a fact, as will be noticed, which is susceptible of demonstration from the proof submitted by the plaintiff himself, as well as from the whole evidence. To pursue the evidence further in detail would be useless, for it is apparent that when the plaintiff rested he had not made out a prima facie case, and that at the close of the case there was no proof to justify the verdict. The railroad company had a right to stop its train and eject the trespassers, and in doing sn it had the right to use such force, in a reasonble way,, under the. circumstances, as was necessary to accomplish that object. In doing this it was, as we have seen, liable only for willful, wanton, or intentional injury inflicted by its servants. The proof shows no such injury. Nor does this evidence disclose any chain of circumstances, which justifies an inference of such injury, or that more force was used than was necessary to rid the train of these parties. Tire repeated and persistent efforts of these wrongdoers to accomplish their unlawful designs [102] the proof shows to have been of such a character as to merit the condemnation of a court of justice. The parties were not only committing a wrong against the railroad /company, but also against the passengers, who, because of the unlawful purposes of the trespassers, were disturbed and delayed on their journey. Upon careful examination of this record it is difficult to see how reasonable minds can differ as to the effect of, and inference to be drawn from, the evidence. The inevitable conclusion from the proof seems to be that the plaintiff has shown no right of recovery because of the unfortunate death of his son.
We are of the opinion that the motion for nonsuit ought to have been granted; that, as this was not done, when both parties rested and submitted the case, a peremptory instruction to the jury to return a verdict in favor of the defendant would have been proper; and that, as no such instruction was given, and none requested, the court should have granted the motion for a new trial. Having come to this conviction it is deemed unimportant to decide the other questions presented.
The judgment must be reversed, with costs, and the cause remanded, with directions to the court below to grant a new trial. It is so ordered.
BASKIN, C. J., and McCARTY, J., concur.