Smith, J.,
(after stating the facts). Appellant says the petition fails to state a cause of action in that it alleges merely that appellant was a passenger upon une of .the trains of appellant company, and that the remainder of his complaint shows that appellant was riding in a box car with some watermelons, which he was shipping in a freig’ht train, and that the complaint fails to allege the payment of fare; or the possession of a pass; or any authority to ride upon the train, and that there was nothing in the complaint to show why in any event he did not ride in the caboose where passengers were carried and were expected to ride. And being in a freight car under such circumstances, no presumption obtains in his favor and the complaint should affirmatively show either an express or implied contract which authorized him to ride in said car as a passenger at the time and place of the accident. Appellant .states the law of Missouri to be that pleadings are not considered amended to correspond with the proof, and that although the complaint was not demurred to, yet, if it fails to state a cause of action, it may be attacked on that account at any stage of the proceedings, even in the appellate court. Appellee concedes that such is the law of Missouri; but it does not follow on that account that the judgment must be reversed because of the insufficiency of the complaint. The complaint does not fail to state a cause of action, nor does it even state one defectively, as it states unequivocally that appellee was a passenger at the time of his injury, and that he was injured by the negligent operation of appellant’s train of cars. A motion to make the complaint more definite would not have been an improper motion, and, had such motion been made, the court should have required appellant to allege how the relation of passenger and carrier was created, and he should have been required to state in his complaint his authority for being in the car at the time of his injury. But no such motion was made, and proof was offered without objection, showing the circumstances under which appellee entered the car and the facts upon which he based his claim of being a passenger, and his right to be protected as such.
The injury having occurred in the State of Missouri, the laws of that'State govern as to the liability, if any; but the remedy to recover damages on account of this injury must be pursued according to the laws of this State, where the suit was brought. Pritchard v. Norton, 106 U. S. 124; Public Parks Amusement Co. v. Embree-McLean Carriage Co., 64 Ark. 29. As the lex fori controls with respect to the pleadings and procedure, the complaint will be treated as amended to conform to the proof.
Appellant strenuously urges that appellee was not a passenger at the time of his injury, and it insists that this is true because he had paid no fare, and expected to pay none, and had no pass, and had not been authorized by the conductor, or any other person with authority, to ride in the melon car, and that if appellant had any right to ride upon the train as a passenger without the payment of fare, he should have ridden in the caboose attached to the train and provided for that purpose. And appellant urges that no one with authority could authorize or did authorize the appellee to ride in his melon car, and that there was no custom to that effect.
But these were questions of fact for the jury. Appellee insists that he had paid fare, and that his fare was included in the freight charged him upon the issuance of the bill of lading, and that the appellant company knew the purpose of the shipment of these melons, and to this end endorsed upon his bill of lading the writing, which was in effect a license to appellee to ride in his car and to peddle his melons during the various stops of the train. We think there was sufficient proof to support the finding upon the part of the jury that a custom to this effect existed upon the lines of appellant’s railroad. Appellee had two cars of melons in the train, and there were about six other shippers having ears of melons in this train, and all of them were permitted to occupy their cars as appellant did, and no questions were raised or objections made on that account. There was proof of previous similar shipments, although this was only the second shipment made by appellee, and in his first shipment he was not permitted to ride in the car with his melons; but as has been stated, appellee said that this permission was refused to him because he had not procured from the station agent at the point of shipment, a license or a permission to enter his car and peddle his melons; but that other shippers in that train who had procured this permission were accorded that privilege.
Objections were made and exceptions saved to each of the instructions given on motion of appellee. Among other instructions given was the following, numbered 1:
“1. In this case, if you find by a preponderance of the evidence that plaintiff J. L. Coy was really, though not technically, a passenger upon the train of the defendant, and, while such passenger, was injured without fault on his part, and when he had not assumed the risk, by reason' of the car in which he was riding, colliding with other cars upon defendant’s track, this is prima facie proof of negligence on the part of the defendant, and would justify a recovery upon the part of the plaintiff, unless the defendant shows by a preponderance of the evidence that said injury occurred without negligence on its part.”
Appellant says this instruction is erroneous because the evidence does not raise any question for submission to the jury, as to appellee’s being a passenger, and for the reason further that it permitted the jury to find that appellee was really, but not technically, a passenger, whereas, it says, if he was not technically a passenger, he was not a passenger at all. And it states further, that as this was an interstate shipment, appellant was not a passenger because the freight rates which had been approved by the Interstate Commerce Commission, did not provide for the carriage of appellee with his melons, and that he violated the law authorizing the fixing of such rates, and that being thus unlawfully upon the train, he can not claim that he was a passenger.
But it has been held in many cases that one may be a passenger though he has not paid any fare as such, and though he does not ride in any car or coach specially provided for the use of passengers. In the case of St. Louis, I. M. & S. Ry. Co. v. Loyd, 105 Ark. 340, it was said: “Appellee adduced testimony tending to show that where a person shipped a oar containing live stock over appellant’s road, it was-.the custom of appellant to permit a caretaker in charge of the live stock to ride free, and this much is, conceded by appellant. Therefore, api pellee was a passenger, notwithstanding he rode free. Little Rock & Fort Smith Ry. Co. v. Miles, 40 Ark. 298.” And it is also settled that one not technically a passenger may yet be a passenger in fact. In the case of St. Louis & S. F. Rd. Co. v. Kitchen, 98 Ark. 507, the facts were that Kitchen was a .tie inspector for the Chicago, Rock Island & Pacific Railway Company, and was riding on one of defendant’s trains in the State of Oklahoma, which was engaged in loading on its cars for transportation, railroad ties, along the line of its road, which were the property of the Rook Island road. As the ties were loaded for transportation, Kitchen inspected and counted them for his employers. He was allowed to ride on the train as it traveled from place to place for the purpose of picking up the ties; but he paid no fare. This particular train did not carry passengers, but was engaged exclusively in hauling the railway ties. There was a box car in the train called the office car, which was fitted up with desks, etc., for the use of men in their work in connection with the shipment of the ties; also with beds, where men, including Kitchen, slept. There was also a caboose attached to the train. In that case it was insisted that Kitchen was not a passenger and that defendant owed him no duty except the negative one not to wantonly injure him, and it was there said: “In support of this contention they stress the fact that Kitchen did not pay any fare, and was not asked to pay fare, and that, in order to constitute himself a passenger, he must have tendered himself as such to be carried upon a train dedicated to the carriage of passengers) and must have been accepted by one who was authorized to receive passengers. We do not think this contention is a sound one. According to the undisputed evidence, Kitchen was permitted to ride on the train for the purpose of performing service for his em-' ployer, the -Chicago, Rock Island & Pacific Railway Company, for whom defendant company was then engaged in transporting railroad ties. He represented his employer, the shipper, and must be treated in the same light as if he, himself, was the shipper, and, as a part of the contract of carriage, was permitted to ride for the purpose of shipping his commodity. His relations with the defendant as a carrier were much the same as that of a shipper of cattle, riding on a drover’s pass, or as that of an express messenger or railway mail agent who is being transported by the carrier under contract with its employer. Under such circumstances, this court, and all other courts which have passed upon the question, so far as we are advised, have held that, while such a person is not, technically, -a passenger, the carrier owed him the same duty as if he were a passenger, that is to say, the highest degree of care consistent with the practical operation of the train which he accepts as: the means .and mode of transportation. Little Rock & Fort Smith Ry. Co. v. Miles, 40 Ark. 298; Fordyce v. Jackson, 56 Ark. 594; Voight v. B. & O. S. W. Ry. Co., 79 Fed. 561.”
• In 2 Hutchinson on Carriers, § 1018, it is said: “It seems that if the person who is injured by the negligence of the employees of the carrier is lawfully upon its conveyance, even though he is not strictly a passenger, he will be entitled, in the absence of a contract on his. part to the contrary, to the same care and diligence for his safety as one who is strictly a passenger.”
Nor does the fact, if it is a fact, that appellee was being transported in the ear of melons in violation of the Interstate Commerce Commission’s regulations, defeat his right to a recovery, nor is the carrier excused on that account from exercising the proper degree of care to appellee under the circumstances. In the case of Southern Pacific Company v. Mary R. Schuyler, 227 U. S. 601, the facts were that the plaintiff’s intestate was riding upon a pass on ian interstate trip> in violation of the Hepburn act of June 29, 1906, and it was there urged that plaintiff’s intestate was not a passenger, and the carrier ■owed no duty as such. But in discussing that.question, it was there said (to quote the syllabus) : “An employee in the railway mail service who, in good faith and with the consent of the carrier, accepts when off duty a free passage in interstate transportation, does not forfeit his right to the benefit of a rule of the local law which charges a carrier with the duty to exercise care for the safety of gratuitous passengers, because his. gratuitous carriage may have been forbidden by the Hepburn act of June 29, 1906, since that statute itself fixed the penalty for violations of its prohibitions, by declaring that the carrier and passenger shall, in such cases, be deemed guilty of a misdemeanor, punishable by fine.”
The court also gave, at the request of appellee, an instruction numbered 2, which read as follows:
“2. The court instructs the jury that if you find that the plaintiff was a passenger upon the defendant’s train, as above explained, and was injured without fault on his part, and when he had not assumed the risk by reason of the car in which he was riding colliding with other ears of the defendant upon its track, then in that event to avoid liability, the defendant must show by a preponderance of the evidence in the whole case, that the collision did not occur by reason of any negligence upon its part. ’ ’
It is urged that this instruction, as well as instruction numbered 1 heretofore set out, imposes upon appellant a higher degree of care than it was required to exercise under the laws of- Missouri, in the operation of freight trains carrying passengers, and that the instructions permitted a recovery to be had upon mere proof of injury, provided appellant failed to show that the collision did not occur as a result of one of the ordinary jerks or jars incident to the operation of freight trains carrying passengers.
In the case of Ray v. Railroad, 147 Mo. App. Rep. 332, the court said: ‘ ‘ The law govering the liability of railroad companies for an injury to a passenger on a freight train by oscillations of the train has been expounded in numerous decisions in this and other jurisdictions. A person who takes passage on that kind of train, assumes the risk of injury from such' jars and movements as are incident to its operation, if its parts are well constructed and in good repair, and it is properly operated on a safe track; but does not assume the risk of injury from faults in either of those matters, or perhaps kindred ones which an experienced railway man could enumerate, but we can not. ’ ’ And further it was there said: ‘ ‘ Taking into consideration the oscillations and jerks commonly and necessarily incident to the movement of a freight train, and that this train was getting under full speed, we hold the mere fact that plaintiff was thrown off by a jerk did not warrant the conclusion of defective track or train appliances, or negligent operation, in other words, the doctrine of res ipsa loquitur does not apply. This is the necessary result of the oases cited mfra, wherein it was held the evidence for the plaintiffs did not entitle them to a decision by the jury. ’ ’
An instruction in this case told the jury that there was no complaint of negligence on account of defective track, or train appliances, and that appellee predicated his right to recover solely upon the negligent operation of the train.
Under the laws of this State the presumption of neg-ligence upon the part of the carrier arises where the •proof shows that the party injured was a passenger upon any kind of train, and was injured by the operation of the train. JjBut it appears such is not the law in the State of Missouri, where the proof shows there was only such oscillations and jerks as are commonly .and necessarily incident to the movement of the freight train; as the proof must go further and show something in the shock of stopping, starting or running the train in the way of displacement of inanimate objects, or persons in' secure positions, as to bespeak careless operation, and appellee says as there was no such proof in the present ease, that there was no presumption of negligence and the instructions set out were therefore erroneous and prejudicial. ^On the question of burden of proof the lex fori governs, and the rule is stated in Minor on Conflict of Laws, page 486, as follows: “But if the rule prescribed by the lex delicti with respect to the defendant’s negligence is a mere rule of evidence, such as rules respecting the burden of proof, touching negligence, the lex fori will govern, not the lex delicti, in accordance with the general principle that rules of evidence reíate to the remedy, and like all matters of that character are regulated by the law of the situs of the remedy (lex fori). See, also, 2 Wharton on the Conflict of Laws, 1107.' The evidence offered by appellee was to the effect that the car upon which he was riding was switched against other cars at a rate of fifteen miles an hour, and that a number of melons were crushed and piled upon him, and as a result of this collision the melons were thrown away from the end of the car and a clear space of several feet was left, and the boards which had been securely fastened to keep the melons in place were torn loose. This evidence, if true, would warrant the jury in finding that appellee was injured as the result of a collision, 'and not through such impact of his car against another car, as 'might reasonably be expected to occur in the ordinary operation of freight trains.
The court gave several instructions defining the duty of carriers in the operation of freight trains, on which passengers were carried, and defining the risk of injury which the passenger assumes from the operation of such trains. An instruction .on this subject which was asked by appellant, and was numbered 4, read as follows:
“4. A railroad company, as a rule, can not be said to be negligent because there are occasional jars and jerks in the operation of freight trains. Though jars of great, unusual and unnecessary violence would be evidence of negligence on the part of employees operating the trains, jars are common to such trains and the passenger must guard against them, and not unnecessarily expose himself to danger from such jars.”
This was modified by the court and given as follows:
“4. A railroad company, as a rule, can not be said to be. negligent because there are occasional jars and jerks in the operation of freight trains. Though jars of great, unusual and unnecessary violence would be evidence of negligence on the part of employees operating the train.” Appellant complains of this modification.
In the case of Hedrick v. Missouri Pacific Ry. Co., 93 S. W. 268, in discussing the liability of a carrier for injuring a passenger riding in a caboose, it was said (to quote the syllabus): “A carrier was not liable for injuries to a passenger riding in a caboose, owing to the jar on the stopping of the train, where the jar was not sufficient to throw the passenger from his feet, and there was no evidence of any defect in the construction of the roadbed or train, or of any negligence in the management thereof. ’ ’ And further in this opinion, in discussing the risk assumed by tbe passenger, it was said: “It seems now to be well settled law here, as elsewhere, that where a railroad carries passengers for hire on its freight trains, it must exercise the same degree of care as is required in the operation of its regular passenger trains; the difference only being that the passenger submits himself to the inconvenience and danger necessarily attending that mode of conveyance.” Vide cases cited by Brace, P. J., in support of this proposition, 65 S. W. 1030. In that case this court .adopted the law as announced in Chicago & Alton Rd. Co. v. Arnol, 144 Ill. 261; 33 N. E. 204; 19 L. R. A. 313, as follows: “Persons taking passage upon freight' trains, or in a caboose or car attached to a freight train, can not expect or require the conveniences, or all of the safeguards against danger, that they may demand upon trains devoted to passenger service, and are accordingly held to have accepted the accommodation provided by the company, subject to all the ordinary inconveniences, delays, and hazards incident to such trains when made up and equipped in the ordinary manner of making up and equipping such trains, and managed with proper care and skill. * * ' * But, if the railway company consents to carry passengers for hire by such trains, the general rule of responsibility for their safe carriage is not otherwise relaxed. Prom the composition of such trains and the appliances necessarily used in their efficient operation, there can not in the nature. of things, be the same immunity from peril in traveling by freight trains, as there is by passenger trains; but the same degree of care can be exercised in the operation of each. The result in respect to the safety of the passenger may be wholly different, because of the inherent hazards incident to the operation of. one train and not to the other, and it is this hazard the passenger assumes in talcing a freig’ht train, and not the hazard and peril arising from negligence or want of proper care of those in charge of it. So long as there were dangers naturally incident to the running of freig’ht cars and a passenger car in the same train, the parties must have been presumed to have contracted in reference to them, and the plaintiff to have assumed them.”
It is urged on the part of appellant that the witness, .Doctor Bentley, who testified -as an expert witness on behalf of appellee was permitted to submit his judgment ¡and opinion for that of the jury as to the cause of appellee’s injury. Such evidence, of course, would be improper, and would call for a reversal o'f the case, if it had been permitted to be offered over appellant’s objection. Castanie v. Railroad Company, 249 Mo. 195. But we do not ■think that was permitted to be- done in the present case. The witness was asked the following hypothetical question : ‘ ‘ Q. I will ask you to state to the jury, if, previous to the 17th day of August, 1912, he had always been a strong man physically, and if, on that day, he was riding in a car that collided with other cars in a violent manner, hurling melons and planks upon him, the plank striking him, across the front of the knee, as indicated, and the melons and planks crushing and mashing him at the time, and that within a few. days he was-compelled to go to bed for a period of seven weeks; that during all of this time, the right leg pained him, paining him so severely at times that he was. unconscious, and that within three weeks this trembling condition in his leg set up, what would you conclude from that was the cause- of his present condition?”
Upon asking that question, the following colloquy took place:
Mr. Davidson: If the court please, I don’t think that is competent. I don’t think his question is competent, the hypothetical question that he places, that he has stated.
The Court: Let him answer.
The Witness: I think it would come from the injury.
Q. You think his injury now could be attributed to such an injury received at that time?
A. Yes, sir.
It thus appears that Doctor Bentley was informed in this hypothetical question as to the history of the case. No request was made that the evidence be excluded, and to answer this question the witness was not required to state that appellee’s present condition was the result of the particular injury. He was only requested to give his opinion as to the cause of his present condition, and if his answer wa« an improper one, no objection appears to have been made to it, and no request was made that it’ be excluded. It was not improper for the witness to state that in his opinion appellee’s present condition could be attributable to such an injury, as he claimed to have received, and it is apparent that this is the question which the witness was attempting to answer; and that there was no attempt to have him state that the collision .was responsible for appellee’s condition.
Various objections were made and exceptions saved to the action of the court in giving and refusing other instructions; but we consider it unnecessary to discuss these exceptions.
It is insisted that the suit be abated because appellee did not secure permission from the court in which the receivership was pending, to maintain this suit. But there was no request un the part of the receivers that they be made parties to this litigation, and the judgment of the court does not attempt to adjudicate their rights to the control of appellant’s properties. The motion which was filed was a mere suggestion to the court that a receiver had been appointed to take charge of appellant’s railroad properties, and this suggestion contained the prayer that appellee be not permitted to proceed with the prosecution of Ms suit until this permission should have been obtained and the receiver made a party. The injury occurred and tMs suit was pending for trial prior to the appointment of the receivers, and there was no attempt to fix upon these receivers, as such, any liability for appellee’s injury. This judgment can not and does not affect the rig’ht of the receivers to the control and poscession of appellant’s property, and wMle appellee has the statutory lien upon appellant’s properties to secure the enforcement of tMs judgment, this lien and the right - to its enforcement is subject to the receivership, and no action can be lawfully taken in its enforcement, which, in any way interferes with the said receivership.
It is lastly insisted that the verdict which was for eighteen thousand dollars, is excessive and such is the case if appellant’s witnesses are to be believed. Expert, witnesses have testified on 'appellant’s behalf that there was no necessary connection between the injury inflicted upon appellee at the time of the collision and his present condition. Indeed, these witnesses testified that appellee' was malingering. But the evidence upon the part of appellee is in sharp conflict with this evidence, and the jury has passed upon this conflict. According to the evidence of Doctors Bentley and Barchman, appellee’s condition is very serious, and he will not improve. According to them the injury to the sciatic nerves has produced a nervous condition which results in appellee’s leg being constantly in violent motion and entirely beyond his control, so that there is a never ceasing trembling of the limb, which interferes with his rest and sleep, and from which he is constantly suffering pain. And that this condition is a permanent one without hope of relief. There was proof that appellee, who was fifty-four years old, had previously been in good health, and had an earning capacity of $1,500 per year; but that he had wholly lost his earning capacity, an'd, upon the contrary, had become a helpless cripple. It was the province of the jury to consider this evidence 'and pass upon its truthfulness, and they have evidently believed this evidence, and, having done so, we can not say that the verdict is excessive, and the judgment of the court below will therefore be affirmed.