Ohio & Mississippi Railroad v. Muhling

30 Ill. 9

• Court: Illinois Supreme Court
• Decided: November 15, 1861
• Status: Published

Opinion

Walker, J.

The evidence shows, that defendant in error, when he received the inj ury, was going from his residence to Trenton or Summerfield, to purchase flour. He was in the • pursuit of his own business, and not that of the company. Whatever might have been his former relations with the company, he was then engaged in his own business. He was at that time in the situation of any other stranger to, or passenger upon the road, liable to no greater burthens, nor entitled to more privileges, than any other passenger similarly situated. He had no control over the running of the train, was not then engaged in the business of the company, and was, as far as this record discloses, free from all negligence, and was in no wise responsible for the injury, nor did his connection with the road in the remotest degree contribute to the misfortune.

The evidence clearly shows, that this trestle bridge was imperfectly and insecurely constructed. This is not controverted. It must then follow, that, as the injury was produced by the insufficient structure made by the company, and without any fault of plaintiff in error, the company should be responsible.

It is, however, urged that the plaintiff had paid nothing for his passage. This can make no difference, as the company had the right to demand the fare at the time he came upon the road, and upon failing to pay, might have put him from the cars. Or they might have afterwards collected it, or, if the company was indebted to him, as the evidence tends to show, they could have deducted it from that indebtedness. But even if they were carrying him gratuitously, it could make no difference. Gillenwater v. Madison and Indianapolis Railroad Co., 5 Ind. R. 339; P. & R. R. R. Co. v. Derby, 14 Howard, 468. When a person is upon a train, under such circumstances, the only inquiry is, whether he was lawfully there, and not whether he had paid his money for the privilege. So that, in point of fact, it can make no difference in this case, whether plaintiff in error had paid for his passage, or whether he was there by permission, to be carried without compensation, as it does not appear that it was unlawful. The evidence shows, that the road had been carrying passengers for pay on their construction trains, and they must ■be held to the same degree of diligence, with that character of train, as with their regular passenger coaches, for the safety of the persons and lives of their passengers. Chicago and Burlington Railroad Co. v. Hazzard, 26 Ill. 373.

In view of the whole of the evidence in this case, the company must be held liable for the injury. The evidence warrants the verdict, and as no error is perceived in this record, the judgment must be affirmed.

Judgment affirmed.