DUFF

v.

ALLEGHENY VALLEY R. R. Co.

A railroad company owes no duty to a trespasser riding on a train. The conductor of an accommodation train, at the request of a brakeman, permitted a lad of fifteen to ride free daily on the train to sell newspapers. Under the company's rules this was beyond the scope of the conductor's authority. After this practice had continued five or six months, the boy was killed in an accident to the train, caused by the alleged negligence of the company. In an action by the boy's mother to recover damages:

Held (affirming the judgment of the court below), that under the evidence the boy was neither a passenger nor an employee, but was a mere trespasser, to whom the company owed no duty, and the plaintiff could not

recover.

Error to the Common Pleas of Venango County.

Case, by Thomas H. Duff and Mary his wife, formerly Mary Cordell, in her right, to recover damages for the death of her son James Cordell, a minor, caused by the alleged negligence of the defendant.

On the trial, before Church, P. J., the evidence showed that on February 10, 1873, an accommodation or mixed train, consisting of a number of freight, coal, and oil cars, with one passenger car in the rear, parted from the engine, and ran off the track, while rounding a curve; several cars, including the passenger car, were precipitated into a shallow part of the river, where the cars took fire, and the boy James Cordell, who was in the passenger car, was killed. The boy had been permitted by the conductor at the request of the brakeman, who was the boy's half-brother, to ride free on the train daily for five or six months, to sell newspapers. He occasionally made up the fire or lighted the lamps for the brakeman. The rules of the company showed that the conductor had no authority to permit the boy to ride free. The superintendent, while travelling, had occasionally seen the boy on the train, but it did not appear that he either knew of, consented to, or objected to the boy riding free. The exact cause of the accident did not clearly appear. An axle of one of the cars was found to be broken, and the track and ties were badly damaged. Much conflicting testimony was taken tending to show that the track at this point was in bad condition.

The plaintiff presented, inter alia, the following points:

(3) If the jury believe that the plaintiff's son was allowed by the

conductor to ride on the train, and that his death was caused by defendant's negligence, plaintiff's right to recover would not be affected by want of express authority to the conductor to make such arrangement, in the absence of knowledge by the boy or his parents of such defect of authority, and in the absence of negligence on the part of the boy contributing to the accident. Answer. That we refuse to answer under the facts in this case.

(5) The same standard of conduct cannot be applied to boys as to men. If the jury believe that at the time of the accident the plaintiff's son was exercising the same degree of care usually exercised by boys of his age, and that he was killed through defendant's neglect to maintain its road-bed or rolling stock in good condition, or in attaching petroleum cars to the train, the plaintiffs are entitled to recover, even if the jury believe the boy was not properly on the car; provided he was not a wilful trespasser, and his wrongful act was not the proximate cause of the accident by which he lost his life. Answer. That we refuse under the facts in this

case.

The defendant presented the following points:

(1) That under the evidence in this case James Cordell was neither a passenger upon the Allegheny Valley Railroad, nor an employee in its service at the time of his death. Answer. That we answer in the affirmative, that he neither was a passenger nor an employee.

(2) That under the evidence, the conductor of the train upon. which James Cordell was found at the time of his death had no authority to permit him to travel upon the train in the manner stated in the evidence, and that his presence upon the train for the purpose of making profit for himself by the sale of newspapers, in violation of the company's rules and the conductor's duty, would not make the railroad company liable in damages for his death. Answer. That we answer in the affirmative.

The court charged the jury, inter alia: "If the boy was there by the invitation of the brakeman, permitted by the conductor, for the purpose simply of pursuing his own employment, and without the authorization of the company's superior officers, then he was an intruder and stranger upon the train, and the company came under no obligation to him, and his mother cannot recover in this action.

"Now, if this be the case, we say to you that this deceased boy was neither a passenger, for he did not come within that category by having paid his fare, having a ticket or free pass, nor was he an employee of the defendant; but being on that train as stated he was an intruder or trespasser-not, of course, that he was a wilful trespasser, in that he had used force, but that he was an intruder or trespasser upon the train in that he was a stranger to it, and was

where he had no lawful business to be; and we say to you that if this boy was on the train as a trespasser without permission from any one having power to give it, plaintiff cannot recover damages, except for intentional injury or very gross negligence, and then probably not from the company, but from the person causing the damage.

"If we are right in this case, the plaintiff is not entitled to recover."

Verdict and judgment for defendant. The plaintiff's took this writ, assigning for error, inter alia, the answers to points, and the charge of the court.

Isaac Ash (with whom was Jas. D. Hancock), for plaintiff in

error:

The conductor of a train has supreme control of it as to all travellers. If his control is limited by private rules, as between the company and himself, strangers without notice are not to be affected thereby. The invitation and permission of the conductor to the boy to travel free, in consideration of the accommodation to passengers by selling newspapers, lighting fires and lamps, etc., constituted him a passenger. One travelling daily on a particular train with the knowledge and permission of the superintendent and conductor, and performing service, may be considered either a passenger or an employee, according to circumstances, but it is absurd to say that he is a trespasser. The evidence should have been fairly submitted to the jury. If they found him to be a passenger, the defendant was liable on the implied contract to carry safely; if found to have been a stranger merely, or upon the cars by invitation of the conductor, without fault on his own part contributing to the accident, the defendant was liable on account of its negligence in running oil cars and a passenger car on the same train; if, by reason of the Act of 1868 (Purd. Dig., 1094, pl. 5), the plaintiffs' right to recover should be limited to the same extent as if for death of an employee, we say that in such case the defendant would be clearly liable for negligence in not maintaining a sufficient track and road-bed. Patterson v. Connellsville R. R. Co., 26 Smith, 389; O'Donnell v. Allegheny Valley R. R. Co., 9 Smith, 239; Coal Co. v. Reed, 25 Pitts. L. J., 82, Jan. 9, 1878.

Osmer (E. S. Golden with him), for defendant in error, relied on. Flower v. Penna. R. R. Co., 19 Sm., 213; Kirby v. Penna. R. R. Co., 26 Sm., 506; Toledo R. R. Co. v. Brooks, 81 Ill., 292.

Nov. 3, 1879.-THE COURT-This was an action by a parent to recover damages for the death of her son on account of the alleged negligence of the defendant. It is clear from the evidence that the boy was on the train from day to day-not as a passenger or employee of the company-but by the connivance of the conductor, in order to sell newspapers. It is not like a person allowed by the