REARY V. LOUISVILLE, NEW ORLEANS AND TEXAS R. Co. (Louisiana Supreme Court. January 9, 1888.) Personal Injuries Trespasser-Permission of Baggage Master.--It is not within the scope of the employment of a baggage master connected with a train, but not shown to have been put in charge of the same, to invite or permit any person or persons to enter or ride on a coach of such train; and permission given under such circumstances cannot create the relation of carrier and passenger. Same-Liability of Company. The company is not liable to such person for injuries which they may receive, unless for negligence or tortious acts on the part of the company. Same-Degree of Care-Trespasser.-A railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it. Same-Panic.-A railway company is not liable to a person, whether passenger or trespasser, who in a state of panic or fear jumps out of a train in motion, and is injured thereby; in the absence of proof that such panic or fear was caused or inspired by word or act of an agent or employee of the company. APPEAL from Civil District Court, Parish of Orleans. Suit by H. Reary, for the use of his minor child, against the Louisville, New Orleans & Texas R. Co. to recover damages for personal injuries. Defendant appeals from a judg ment for the plaintiff. The opinion states the case. Farrar and Kruttschnitt for appellant. Braughn, Buck, Dinkelspiel, and Hart for appellee. POCHE, J.-Suing for the use of his minor child, plaintiff claims damages in the sum of $10,000 for personal injuries inflicted on his child by one of defendant's trains through the alleged carelessness and negligence of the company's employees. Defendant appeals from a judgment of $3,000, based on the verdict of a jury. The evidence is very conflicting on the salient features of the case, but from our reading of the record we find the following pertinent facts from the preponderance of the testimony: The accident occurred at the company's depot, which is situated on and occupies the neutral ground Facts. or space included between two streets or thoroughfares known as North and South Poydras streets, in this city, on a train of passenger cars, which had just arrived, had discharged its passengers and their baggage, and was being switched out of the main track, in order to be set at rest on a side track for the night. While plaintiff's daughter, between eight and nine years of age, was playing in and around the depot, with four other girls a little more advanced in years, one of whom was her sister, of about thirteen years of age, the girls took a child's notion to ride on that train, which was under the operation of being switched off, at about 7 o'clock in the evening, in the month of November, 1886. One of the girls asked and obtained permission so to do, of the baggage master of the train, who was standing near by, preparatory to his starting for home. Four of the girls entered one of the passenger coaches, and took seats at the end towards the baggage car, and the fifth child caught on and remained outside on the steps of the coach. As the train was in the act of being moved out of the main track, at a pretty rapid rate, the girls became alarmed at the belief and fear that the train was running out of the city, and going, as several of them say, "out to Baton Rouge," whereupon they ran out of the coach, and precipitately jumped out of the car. It was in that flight that plaintiff's youngest daughter fell, and that her foot was seriously injured by being run over by one of the wheels of the coach. gage master Under that condition of things the defendant makes the point that the baggage master had no authority, within the scope of his employment, to grant the request of Permission the children for permission to ride on the train, so given by bag as to render the company liable for injuries resultEffect. ing from such permission. The record shows that the train was not under the charge or control of that employee, but that it was under the responsibility of another and entirely different person, who had no knowledge of the presence of the girls on that train. The record is conclusive on that point, and the authorities are equally clear on the law. The baggage master has no duty or authority with the train, whether running or at the depot; and his permission to the girls to ride on that train cannot bind or affect the rights or obligations of the company. Pierce, R. R. 277; Snyder v. Railroad Co., 60 Mo. 413; Gillet v. Railroad Co., 55 Mo. 315; Hanson v. Railway Co., 38 La. Ann. 111. It is in proof that rigorous orders had been given by the management of the company to drive away children who came to play in and around their depot; and, to the knowledge of the girls, many children had been ordered away. It 1 is thus made clear that the permission given by the baggage master was unauthorized under the scope of his Relation of employment, and in direct violation of the com- carrier and pany's rules and regulations. It is also in proof, passenger did beyond a doubt, and it is not disputed by plaintiff, not arise that the train was not in use or motion, at the time of the accident, to carry passengers under its purpose as a common carrier, but that it was being pulled back and forth, merely and exclusively with the intention of removing the coaches from the track on which they had entered the depot, and of preparing them for the formation of another train for use in the company's business on the next day. Hence it clearly follows that the relations of carrier and passenger did not arise between the defendant and plaintiff's child. company to Now, in one of the cases very strenuously relied on by plaintiff, the case of Railroad Co. v. Stout, 17 Wall. 657, the supreme court of the United States laid down the following pertinent rule: "That while a railway company is not bound to the same degree of care in regard to mere strangers, who are unlawfully upon its premises, Liability of that it owes to passengers conveyed by it, it is not strangers. exempt from responsibility to such strangers arising from its negligence or from its tortious acts." The rule is not only supported by authority, but it finds its sanction in principles of reason, common sense, and natural justice. It is, in fact, a universal rule on the subject of the responsibility of common carriers. But, under the circumstances of this case, we feel warranted to extend the scope of the rule still further, and to hold the defendant company to the same degree of care towards the children who were in that coach that it would owe to passengers being conveyed by it on a journey, after payment of their fare. Panic among Our reading of the record has entirely failed to disclose any act of negligence, or dereliction of any duty, on the part of the company, which it owed to those girls, even if they had been regular passengers on a journey over its road. An attempt has been made to show that the panic among the girls, and their precipitate flight from Negligence of the coach, were caused by the act of one of the companycompany's employees, who suddenly, and without girls. warning, blew out the lights in the car; and his act is qualified as reckless and mischievous. But that contention finds no support in the record. In their testimony two of the girls stated that they did not notice whether there were any lights on the coach or not; and not one of them is certain of having seen any person or persons put out the lights. We are entirely satisfied, from the evidence, that the panic among the girls was caused by the fear that they might have made a mistake, and had entered a train which was going to Baton Rouge. Hence, impelled by that fear, they attempted to jump out while the train was in motion. Now, supposing that any passenger on a regular train should labor under a similar mistake, in believing, for instance, that the train was passing by the station to which he was destined, and, fearing that he might be carried beyond the same, should jump out as the train was pulling out of the station, and be injured by falling, could the company be held liable for injuries thus received? Evidently not. In that case, as in this, there would be no ground to conclude that the company had been guilty of any negligence towards the passenger on its train. Absence of the part of the company. Where is the duty which the defendant corporation owed to plaintiff's child, and which it did not discharge or perform? By remaining on the coach until it had been switched off on the side track, she would have been perfectly safe, and could have stepped out, as she and her companions had evidently intended to, and as they knew they could do without the slightest danger. Who is responsible for negligence on the ungrounded fear of the girls that the train was being run out of the city, or perhaps to Baton Rouge, and which is beyond a doubt the proximate cause of the accident? They were alone in a coach where they had entered voluntarily with the childish intention of taking a ride while the train was being switched off. They say themselves that after they had taken their seats in the coach the baggage master moved from the platform in front of them and entered the baggage car, where his duty called him. There is no pretense that a single word was spoken to them after they had taken their seats in the coach, by any officer, servant, or other employee of the company, or that they were ordered off the train by any one. In running out and jumping, they were impelled by motives with which the company had not the remotest connection or agency. And in that feature the circumstances of the case are much more favorable to the company than in any of the reported cases on which her counsel rely in their brief. Cauley's Case, 95 Pa. St. 398, and 98 Pa. St. 490; Duff v. Railroad, 91 Pa. St. 458. Under our views of the case, and from our solution of the pertinent facts flowing from the weight of evidence, we hold that the pivotal question does not hinge on the contribu tory negligence of the passenger, but exclusively on the entire absence of negligence of the company. Flower v. Railroad Co., 69 Pa. St. 210. Our opinion is that the verdict of the jury is manifestly erroneous, and that in justice it must be set aside. It is there fore ordered, adjudged, and decreed that the verdict of the jury be set aside, and the judgment of the district court annulled, avoided, and reversed; and it is further ordered that plaintiff's demand be rejected, and his action dismissed, at his costs in both courts. Jumping from Moving Train by Person in Fear. See Chicago, etc. R. Co. v. Felton, 33 Am. & Eng. R. R. Cas. 533, note, 539. KANSAS CITY, FORT SCOTT AND GULF R. Co. ย. KELLEY, by his Next Friend. (Kansas Supreme Court. June 11, 1887.) Personal Injuries-Trespasser on Train-Ejection. If a boy 15 years old who is upon a freight train wrongfully, and as a trespasser, for the purpose of riding without paying his fare, is commanded by the brakeman to jump off the train while in dangerous motion, in the night-time, and in obedience to that command, and in fear of being thrown off, jumps off the train, and is run over and injured, the company is liable. Same-Authority of Brakeman. It is within the scope of the general authority of a brakeman on a freight train to prevent trespassers from getting on the train, and to remove such persons who wrongfully get thereon; but if, in so doing, he does not exercise care and caution, but acts wantonly or maliciously, and an injury results, the railroad company is liable. ERROR to District Court, Johnson County. Action by William Kelley, by his next friend, Giles Milhoan, against the Kansas, Fort Scott & Gulf R. Co., to recover damages for personal injuries caused by the act of the defendant's brakeman in ejecting plaintiff, while the train was in motion. Defendant brings error to review verdict and judgment for the plaintiff for $4,000. Wallace Pratt and Blair & Perry for plaintiff in error. CLOGSTON, C.-It appears from the evidence that on the night of the sixteenth of June, 1884, while the north-bound freight train on the defendant's railroad stopped for water south of the city of Olathe about one mile, William Kelley |