Hadley, J.
The facts upon which appellee’s alleged cause of action is predicated are that on and prior to June 12, 1903, the Pittsburg Glass Company operated a large manufacturing plant at Kokomo, and in connection with its plant had yards with a number of railroad tracks laid therein, which yards were enclosed by a high fence and entered through a gateway, which was kept closed and locked when not in use. The keys to the gateway were in the possession of appellant. All of these tracks were laid, owned and used exclusively by appellant, said tracks having been placed there by consent of the glass company. Said tracks were used exclusively by appellant in delivering freight to, and receiving freight from, said glass company. Said tracks were connected with the tracks of appellant outside the enclosure. The glass company had a foreman who gave orders to the switching crew of appellant as to the switching of cars upon the tracks, or shifting them about. Appellee was never in the service of appellant, but was a servant of the glass ■company at the time of the injury complained of. On June 12, 1903, a box-car, loaded with crushed stone, had been set on one of the tracks in the yards of the glass company, and opposite a building called a “stone-house,” belonging to said glass company.- Appellee, with other employes of the glass company, was engaged in unloading said stone from the car, using a chute extending from the car into the stone-house for that purpose. -While this work was in progress, and when the car was partially unloaded, the foreman of the glass company directed the switching crew of appellant to switch-out some loaded ears, which were behind the ear that was being unloaded and on the same track. To comply with this order it was necessary to suspend the work of unloading the stone-ear and connect it with the loaded cars, switch them all out together onto the main tracks, and then switch the stone-car [222]*222back to its original position. Before beginning the switching, appellant’s crew went to the s1;one-car and notified appellee and the men engaged with him in unloading the ear to take down the chute, and that they were going to switch out said stone-car. Pursuant to this notice, the men in the stone-ear stopped their work, took down the chute and some of them got out of the ear. The others, appellee being one of the number, of their own choice and volition, and for their own convenience, and without any necessity therefor, remained in the car to ride while it was being switched. During the switching, the car was stopped several times, and ample opportunity was afforded appellee and his companions to get out of the car, if they had so desired. During the switching, appellee stood upright in the car, holding by one hand to an iron rod above his head. The car in which appellee was riding was necessarily pulled out of the yards, switched back, and sent down another track into said yards, and in so doing it was sent down with such velocity that it bumped into some loaded cars with such force as to jerk appellee so as to dislocate his shoulder and otherwise injure him. At the time of his injury, and for a long time prior thereto, there was a rule of appellant prohibiting persons from riding on or in freight-cars, which rule applied to switching yards as well as the main track. It is admitted that the car was sent down the track at a greater velocity than was .necessarily required in the performance of the work appellant was attempting to do, but with no greater force than was ordinarily used in doing such work. It is also clearly shown that it had been- a custom, extending over a period of twelve years, for the employes of the glass- company, when unloading a car, as appellee was doing, and when it was switched, as was done in this case, to remain in the car during such switching, if they so desired. And this was done with the knowledge of the switching crew moving said cars. It was shown that this custom was not at the request of the glass company, or of [223]*223anyone else, but was purely a voluntary act on the part of the employes. It was shown that none of the officers of appellant company knew of such custom, and it was not shown that any agent or employe of appellant had knowledge or notice of said custom, except said switching crews.
The complaint averred substantially the foregoing facts. The complaint was demurred to and the demurrer overruled. This ruling is assigned as error. 'Upon verdict for appellee, a motion for a new trial was filed, which was overruled. This is assigned as error. ' .
1. The question presented upon the complaint, upon various instructions, and upon the 'evidence, is narrowed down to the single question as to whether, under the foregoing facts, there is a liability upon the part of appellant for the injury shown to have been committed. Appellant contends that appellee was nothing more than a licensee and as such was not entitled to any protection at the hands of appellant, except as against wilful injury. It is admitted by appellant that if a greater duty was owing to appellee than as here stated, then the judgment should be affirmed. On the other hand, appellee contends that he was more than a licensee; that he was an employe of the consignee engaged in the work of the consignee when injured; that by reason of the long-continued custom of the manner of unloading the cars and of the employes in riding in said cars during the time they were being switched, it became so fixed that it became a part of the contract of shipment; and therefore when appellant delivered a ear to the glass company it delivered it upon the contract that the glass company not only would be permitted to unload the car at the place it was delivered, but that, in case it became necessary to move said car before it was unloaded, the employes of the company would be permitted to remain in the ear during said moving and until the ear was reset at the point of delivery.
The question thus presented is a new one, and the long [224]*224line of decisions and authorities to which we have been cited by appellant, and those, in addition, which we have examined in an independent investigation, as well as the decisions cited by appellee, have been found to have little direct application to this exact question. Prom these authorities, however, tve have been able to deduce some general principles which aid us in arriving at a proper conclusion.
2. It is fundamental that before there can be a liability for a negligent injury, there must be a legal.duty owing from the party committing the injury to the party injured. Toledo, etc., R. Co. v. Hauck (1893), 8 Ind. App. 367; Stalcup v. Louisville, etc., R. Co. (1897), 16 Ind. App. 584; City of Indianapolis v. Emmelman (1886), 108 Ind. App. 530, 58 Am. Rep. 65.
3. 4. Numerous decisions hold that a railroad company owes no higher duty than to avoid any affirmative, Avrongful act or wilful injury to trespassers or licensees upon its right of way, tracks or cars. Stalcup v. Louisville, etc., R. Co., supra; Chicago, etc., R. Co. v. Martin (1903), 31 Ind. App. 308; McCabe v. Chicago, etc., R. Co. (1894), 88 Wis. 531, 60 N. W. 260. But where one is on the right of way, depot grounds, tracks or cars by invitation, express or implied, of those authorized to extend it, the company owes to him the duty of exercising ordinary care,- and will be liable for an injury negligently inflicted upon him. Chicago, etc., R. Co. v. Martin, supra; Toledo, etc., R. Co. v. Hauck, supra; Newson v.
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Hadley, J.
The facts upon which appellee’s alleged cause of action is predicated are that on and prior to June 12, 1903, the Pittsburg Glass Company operated a large manufacturing plant at Kokomo, and in connection with its plant had yards with a number of railroad tracks laid therein, which yards were enclosed by a high fence and entered through a gateway, which was kept closed and locked when not in use. The keys to the gateway were in the possession of appellant. All of these tracks were laid, owned and used exclusively by appellant, said tracks having been placed there by consent of the glass company. Said tracks were used exclusively by appellant in delivering freight to, and receiving freight from, said glass company. Said tracks were connected with the tracks of appellant outside the enclosure. The glass company had a foreman who gave orders to the switching crew of appellant as to the switching of cars upon the tracks, or shifting them about. Appellee was never in the service of appellant, but was a servant of the glass ■company at the time of the injury complained of. On June 12, 1903, a box-car, loaded with crushed stone, had been set on one of the tracks in the yards of the glass company, and opposite a building called a “stone-house,” belonging to said glass company.- Appellee, with other employes of the glass company, was engaged in unloading said stone from the car, using a chute extending from the car into the stone-house for that purpose. -While this work was in progress, and when the car was partially unloaded, the foreman of the glass company directed the switching crew of appellant to switch-out some loaded ears, which were behind the ear that was being unloaded and on the same track. To comply with this order it was necessary to suspend the work of unloading the stone-ear and connect it with the loaded cars, switch them all out together onto the main tracks, and then switch the stone-car [222]*222back to its original position. Before beginning the switching, appellant’s crew went to the s1;one-car and notified appellee and the men engaged with him in unloading the ear to take down the chute, and that they were going to switch out said stone-car. Pursuant to this notice, the men in the stone-ear stopped their work, took down the chute and some of them got out of the ear. The others, appellee being one of the number, of their own choice and volition, and for their own convenience, and without any necessity therefor, remained in the car to ride while it was being switched. During the switching, the car was stopped several times, and ample opportunity was afforded appellee and his companions to get out of the car, if they had so desired. During the switching, appellee stood upright in the car, holding by one hand to an iron rod above his head. The car in which appellee was riding was necessarily pulled out of the yards, switched back, and sent down another track into said yards, and in so doing it was sent down with such velocity that it bumped into some loaded cars with such force as to jerk appellee so as to dislocate his shoulder and otherwise injure him. At the time of his injury, and for a long time prior thereto, there was a rule of appellant prohibiting persons from riding on or in freight-cars, which rule applied to switching yards as well as the main track. It is admitted that the car was sent down the track at a greater velocity than was .necessarily required in the performance of the work appellant was attempting to do, but with no greater force than was ordinarily used in doing such work. It is also clearly shown that it had been- a custom, extending over a period of twelve years, for the employes of the glass- company, when unloading a car, as appellee was doing, and when it was switched, as was done in this case, to remain in the car during such switching, if they so desired. And this was done with the knowledge of the switching crew moving said cars. It was shown that this custom was not at the request of the glass company, or of [223]*223anyone else, but was purely a voluntary act on the part of the employes. It was shown that none of the officers of appellant company knew of such custom, and it was not shown that any agent or employe of appellant had knowledge or notice of said custom, except said switching crews.
The complaint averred substantially the foregoing facts. The complaint was demurred to and the demurrer overruled. This ruling is assigned as error. 'Upon verdict for appellee, a motion for a new trial was filed, which was overruled. This is assigned as error. ' .
1. The question presented upon the complaint, upon various instructions, and upon the 'evidence, is narrowed down to the single question as to whether, under the foregoing facts, there is a liability upon the part of appellant for the injury shown to have been committed. Appellant contends that appellee was nothing more than a licensee and as such was not entitled to any protection at the hands of appellant, except as against wilful injury. It is admitted by appellant that if a greater duty was owing to appellee than as here stated, then the judgment should be affirmed. On the other hand, appellee contends that he was more than a licensee; that he was an employe of the consignee engaged in the work of the consignee when injured; that by reason of the long-continued custom of the manner of unloading the cars and of the employes in riding in said cars during the time they were being switched, it became so fixed that it became a part of the contract of shipment; and therefore when appellant delivered a ear to the glass company it delivered it upon the contract that the glass company not only would be permitted to unload the car at the place it was delivered, but that, in case it became necessary to move said car before it was unloaded, the employes of the company would be permitted to remain in the ear during said moving and until the ear was reset at the point of delivery.
The question thus presented is a new one, and the long [224]*224line of decisions and authorities to which we have been cited by appellant, and those, in addition, which we have examined in an independent investigation, as well as the decisions cited by appellee, have been found to have little direct application to this exact question. Prom these authorities, however, tve have been able to deduce some general principles which aid us in arriving at a proper conclusion.
2. It is fundamental that before there can be a liability for a negligent injury, there must be a legal.duty owing from the party committing the injury to the party injured. Toledo, etc., R. Co. v. Hauck (1893), 8 Ind. App. 367; Stalcup v. Louisville, etc., R. Co. (1897), 16 Ind. App. 584; City of Indianapolis v. Emmelman (1886), 108 Ind. App. 530, 58 Am. Rep. 65.
3. 4. Numerous decisions hold that a railroad company owes no higher duty than to avoid any affirmative, Avrongful act or wilful injury to trespassers or licensees upon its right of way, tracks or cars. Stalcup v. Louisville, etc., R. Co., supra; Chicago, etc., R. Co. v. Martin (1903), 31 Ind. App. 308; McCabe v. Chicago, etc., R. Co. (1894), 88 Wis. 531, 60 N. W. 260. But where one is on the right of way, depot grounds, tracks or cars by invitation, express or implied, of those authorized to extend it, the company owes to him the duty of exercising ordinary care,- and will be liable for an injury negligently inflicted upon him. Chicago, etc., R. Co. v. Martin, supra; Toledo, etc., R. Co. v. Hauck, supra; Newson v. New York Cent. R. Co. (1864), 29 N. Y. 383; Wabash, etc., R. Co. v. Locke (1887), 112 Ind. 404, 2 Am. Rep. 193; Baltimore, etc., R. Co. v. Trennepohl (1909), 44 Ind. App. 105; Booth v. Union, etc., R. Co. (1904), 126 Iowa 8, 101 N. W. 147; Wright v. London, etc., R. Co. (1875), L. R. 10 Q. B. 298; Street Railway Co. v. Bolton (1885), 43 Ohio St. 224, 1 N. E. 333, 54 Am. Rep. 803; Eason v. S. & E. T. R. Co. (1886), 65 Tex. 577, 57 Am. Rep. 606.
[225]*2255. [224]*224An invitation to ride on a freight-train, given in contra[225]*225vention of the rules of the railroad company, by an employe engaged in operating such train, will not render the company liable for a negligent injury to a person accepting such invitation, unless it is shown that the person extending the invitation was authorized by the company to do so. Pennsylvania Co. v. Coyner (1904), 163 Ind. 631; Stalcup v. Louisville, etc., R. Co., supra; Downey v. Chesapeake, etc., R. Co. (1886), 28 W. Va. 732; Cooper v. Lake Erie, etc., R. Co. (1894), 136 Ind. 366; Lygo v. Newbold (1854), 24 L. & Eq. 507; Eaton v. Delaware, etc., R. Co. (1874), 57 N. Y. 382, 15 Am. Rep. 513.
6. In determining whether certain acts imply an invitation or a license, the following rule is laid down in Chicago, etc., R. Co. v. Martin, supra, quoting from Campbell, Negligence §33: ‘ ‘ The principle appears to be that invitation is inferred where there is a common interest or mutual advantage, while a license is inferred where the object is the mere pleasure or benefit of the person using it.” In Hargreaves v. Deacon (1872), 25 Mich. 1, it is said: “We have found no support for any rule which would protect those who go where they are not invited, but merely with express or tacit permission, from curiosity or motives of private convenience, in noway connected with business or other relations with the occupant.” Quoted with approval in Beach, Contrib. Neg. (2d ed.) p. 74.
7. A railroad company is not required to maintain a constant surveillance over its employes to ascertain whether its rules are complied with. It has the right to assume that they will be. And it is seldom, if ever, that' notice to the company of an habitual disregard of its rules and sanction thereof or acquiescence therein can justly be presumed, merely from evidence of such disregard or violations, or permission therefor by complacent or faithless servants. Pennsylvania Co. v. Coyner, supra.
[226]*2268. [225]*225Riding on freight trains is hazardous, and every one is [226]*226presumed, to know and appreciate this fact. Pennsylvania Co. v. Coyner, supra; Walker v. Green (1899), 60 Kan. 289, 56 Pac. 477; Louisville, etc., R. Co. v. Bisch (1889), 120 Ind. 549. One of the hazards of riding on a freight-train, that every person of common intelligence is presumed to know, is the sudden bumping or jerking of the cars. Louisville, etc., R. B. Co. v. Bisch, supra.
This is the rule with regard to the running of such trains on the road in the ordinary way. The rule should apply with greater force to cars that are being switched back and forth. It is well settled that one who voluntarily assumes a dangerous position, after notice or knowledge of the danger in ample time to secure a safe place, cannot recover for an injury by reason of being in the dangerous position thus assumed. Louisville, etc., R. Co. v. Bisch, supra; Walker v. Green, supra; Downey v. Chesapeake, etc., R. Co., supra.
9. Appellee contends that his right to remain in the ear was contractual. It is true that the contract of shipment may be oral. It may even be implied, and the parties may make any agreement they please as to the time, place and manner of delivery, and such manner of delivery may be shown by proof of usage and custom. Loveland v. Burke (1876), 120 Mass. 139, 21 Am. Rep. 507.
1. In this case it must be borne in mind that the place of delivery and shipment was in the private yards of the glass company, separate and apart from the office of the agent of the company and the public stations and delivery points of said company. It must also be borne in mind that the custom of remaining in the cars while they were being switched, existing among the employes of the glass company, was one in which neither the glass company nor the railroad company had any beneficial interest or concern whatever. It is not shown that it in any way aided the employes, or expedited their work in unloading the cars, or in any manner assisted the railroad company in switching. On the contrary, it is apparent that if, bjr reason of their re[227]*227maining in the car, the railroad- company was compelled to exercise care in' shifting and shunting the cars, it would not only be a detriment to their work but would be imposing a responsibility and liability upon the railroad without any compensation or return whatever.
10. It was not shown that the glass company had any knowledge of this custom, that it desired it or requested it, but it is affirmatively shown that it was a custom indulged in by the employes, purely for their own pleasure or convenience. Furthermore, it is not shown that any agent of the railroad company, who had authority to make contracts for said company, had any knowledge of such custom. In fact, it is only shown that the switching crews of the railroad had knowledge of such custom. Being a custom confined exclusively to the private yards of the glass company, we do not think it can be presumed, even by reason of its long continuance, that the authorized agents of the company had knowledge of such custom. It is not the business of train crews to make contracts for the railroad company, and they can only do so in cases of emergency, unless specially authorized. Ordinarily they can make no contracts for shipping freight or for carrying passengers. Cooper v. Lake Erie, etc., R. Co. (1894), 136 Ind. 366; Stalcup v. Louisville, etc., R. Co., supra.
It is affirmatively shown that there was nothing in the car, nor in the character of the load remaining in it, that required appellee to remain in the car to protect it or to guard it while the car was being switched, and in this respect the case is distinguished from the case of Chadderdon v. Michigan Cent. R. Co. (1894), 100 Mich. 293. In that case plaintiff was loading grain seeders into a car. The car was partially loaded and the seeders therein were not braced. Defendant knew that plaintiff was in the car, and knew the business that kept him there. It was necessary for him to remain in the car properly to protect and support the seeders in position while the car was being moved. The ear was kicked [228]*228back with such force as to precipitate the seeders upon plaintiff, and injure him. The court, in passing on the case, held that, under the circumstances, plaintiff’s negligence was not so clear as to justify the taking of the question from the jury, and, in the course of the opinion, said: ‘ ‘ The plaintiff was in the discharge of his duty to his employer in staying in the car, and looking after the seeders; and, whether he had the consent of the agents of the defendant company or not, they .were apparently aware he was in the car, and knew the business which kept him there. They knew the seeders were not fully braced. lie had a right to expect, under the circumstances,' that the defendant would exercise some care in .returning the car to its place. * * * The question of the plaintiff’s negligence was properly submitted to the jury.”
Counsel for appellee rely upon the case of Montgomery, etc., R. Co. v. Kolb & Hardaway (1882), 73 Ala. 396, 49 Am. Rep. 54. In that case the railroad company had given printed directions as to how cotton would be received at Eufaula for shipment. These printed instructions were delivered to the shippers, but the agent at Eufaula had permitted a usage to grow up that delivery would be made in a way'different from that prescribed in the circular. It was contended that knowledge of this usage was not shown to have been traced to the superintendent of the company, and therefore the company was not bound thereby. The court, however, said that since the railroad company had placed an agent there for the purpose of dealing with shippers, receiving freight and discharging it, as the representative of the railroad company, therefore “whatever regulation, custom or usage such station agent adopts, or permits to be adopted, the public must either conform to, or will feel itself justified in conforming to. The rules observed by shippers in their general transactions, if continuous or frequent, although not universal, grow into a usage, which would author[229]*229ize others to treat it as the proper rule, and as an element of the contract of affreightment. ’ ’
We think that no one will contend that switching crews are ordinarily clothed with authority to make contracts binding upon the railroad company for the shipment or delivery of freight; and it would certainly be a harsh rule that would hold the railroad company responsible for an injury arising from a custom that was originated and established in the privacy of enclosed switching yards of a manufacturing company, simply on the presumption that the authorized officers of the company had knowledge of such custom.
1. Furthermore, there is a principle laid down in the case of Loveland v. Burke, supra, which precludes the recovery of damages by appellee. The rule is so clearly laid down in that ease that we quote from it: “It may be conceded that the defendant’s obligation to transport the goods to their place of destination included an obligation to unload and deliver them safely, and that ordinarily the transit is not at an end until such a delivery is accomplished. But the place and manner of delivery may always be varied with the assent of the owner of the property; and if he interferes to control or direct' in the matter, he assumes the responsibility. ”
Appellee, in oral argument, specifically admitted that if the finding of this court should be against him upon the question of his contractual right to be in the ear, then his cause should fail. The complaint is insufficient and the demurrer thereto should have been sustained; and the evidence does not support the verdict.
Judgment reversed, with instructions to sustain the demurrer to the complaint, with leave to amend.