not a trespasser, and the court should have instructed the jury that the defendant was liable to him for gross negligence. In support of this proposition cases are cited like Railroad Co. v. Derby, 14 How. 483, 14 L. Ed. 502, where a passenger who was riding free upon the railroad by the invitation of the president of the company was carelessly injured, and Farmers' Loan & Trust Co. v. Baltimore & O. S. W. R. Co. (C. C.) 102 Fed. 17, where one riding in a passenger car upon a pass sustained injury through the negligence of the company, and it was held that the defendant was liable to these persons for the exercise of ordinary care and diligence, and that any failure to exercise such care might well be characterized as gross. These authorities, and the rules of law upon which they rest and which they announce, have no application to the case in hand. Purple was not traveling on a free pass. He was not a licensee. He was either a passenger without knowledge and without notice of facts suggesting an inquiry which would have led a prudent man to knowledge of the fact that the conductor of this train was not authorized to permit him to ride upon it as a passenger, or he was a trespasser with knowledge, or with notice charging him with knowledge, of this fact, engaged in executing a deliberate intention to ride upon the train in violation of the rules of the company. He was not a licensee, and he could occupy no middle position. There was therefore no error in the refusal of the court to charge that if he was not a passenger the railroad company was liable to him for gross negligence. The term "gross" in this connection is nothing but an epithet. It means no more than the failure to exercise ordinary diligence in the circumstances of the particular case. It distinguishes no legal degree of negligence, and it is not error to refuse to apply it to the negligence for which a defendant may be liable, because its use merely tends to create doubt and to increase confusion. Wilson v. Brett, II Mees. & W. 113; The New World v. King, 16 How. 474, 14 L. Ed. 1019; Milwaukee Railroad Co. v. Arms, 91 U. S. 489, 494, 23 L. Ed. 374: Beal v. Railway, 3 Hurl. & C. 337; Grill v. Collier Co. [1865-66] L. R. C. P. 600; Perkins v. Railroad Co., 24 N. Y. 196, 207, 82 Am. Dec. 281. Another complaint of the plaintiff in error is that the court instructed the jury that there was no evidence in the case sufficient to warrant them in finding that there was any wanton, willful, or reckless disregard by the company of the safety of the deceased. But the bill of exceptions contains these two statements: "All evidence tending to show the fact or character of defendant's negligence is contained in this bill of exceptions;" and "there was no evidence in the case tending to show wanton, willful, or reckless disregard on the part of the company of the safety of the deceased." Counsel review the evidence contained in the bill of exceptions, and ask a holding that there was evidence tending to show willful and reckless injury. But this question is not here for our consideration. The only way in which it could have been presented in the present state of the record was by an exception to the statement in the bill of exceptions that there was no such evidence in the case taken and recorded in the bill itself. No such objection or exception was taken, so that the question whether or not there was such evidence was not presented to the court below when it certified the record, and as, in an action at law, this is a court for the correction of errors exclusively, there could have been no error in the court below, because that question was not presented to or ruled upon by that court when the bill of exceptions was made. In this court the record presented by that bill, in the absence of objection or exception thereto, is conclusive. It is assigned as error that the court refused to instruct the jury that, although the conductor did not intend to demand transportation, the fact that he had such intention could not in any way affect the right of the plaintiff to recover, in the absence of evidence to show that Purple in some way induced the conductor to form such intention. But there was evidence tending to show that Purple did induce him to form this intention by presenting himself for transportation, by forming with him the tacit understanding that he should ride free, and by entering and riding upon the train without the payment or the offer to pay fare, in pursuance of his deliberate intention and tacit understanding that he should ride without the payment of any. The instruction requested was therefore inapplicable to the facts of this case, and there was no error in its refusal. It is not the duty of a trial court to instruct the jury what the law would be in the absence of material evidence which has been presented and submitted to the jury upon the crucial issues in the case. It completely discharges its duty when it gives the law applicable to the evidence before the jury. For the same reason there was no error in the refusal of the court to charge the jury that some of the defendant's freight trains carried passengers, that Purple was riding on one of them with the knowledge and assent of the conductor in charge, and that under these circumstances, in the absence of evidence to the contrary, it would be presumed that he was a passenger. This instruction ignored all the material evidence in the case upon which the jury based its finding that he was not a passenger, the evidence of his deliberate intention not to pay fare, of the tacit understanding that he should ride free, of his employment upon the road for nine years, and his familiarity with the rules, and of his presence and opportunity to learn the facts at Laramie before he started upon his fatal ride. It is said that it was error for the court to refuse to charge that the payment of fare is not necessary to give rise to the liability to pay it, and that if the carrier permits the passenger to take his seat without requiring payment the obligation to pay will stand for actual payment. But the rule of law embodied in this request was fairly given to the jury in the general charge of the court. Although the evidence was conclusive that Purple never paid any fare, and never was asked to pay any, the court instructed the jury that if he was invited onto a train authorized to carry passengers, either by express words or by a tacit understanding between him and the conductor, he became a passenger, and it was the duty of the com pany to exercise the highest degree of practicable care for his safe transportation. It is contended that the court erred because it failed to submit instructions (1) that if the car on which Purple was riding was of the same general appearance of other trains on which passengers were carried on that division of the railroad, but by reason of other facts, unknown to Purple, the train was not permitted to carry passengers, and if the failure of the conductor to demand fare was not procured by Purple, he was a passenger; and (2) that a person riding by the unauthorized permission of the conductor on a train not intended for the carriage of passengers is not a trespasser, unless it was known to him that the conductor exceeded his authority. It may be conceded for the purpose of this discussion, although the proposition is not considered or decided, that one without any knowledge and without any notice of facts sufficient to put him upon inquiry which would lead to knowledge of the lack of the authority of a conductor upon or of the character of a train which was not permitted to carry passengers might become a passenger upon that train under the circumstances stated in these propositions. The difficulty with the instructions is that Purple was in no such situation. He was an old employé on the road. In its practical operation he had known and had experienced the fact for nine years that regular freight trains might carry passengers and that extra freights might not. It is certainly probable that he knew this fact when he boarded the train, seven years later. Whether he did or not, the record clearly shows that he had ample knowledge of facts to put him upon an inquiry which would have led to an acquaintance with this fact. Under these circumstances, he could not escape this duty of inquiry. He was in this situation: If he had forgotten the rules and the practices, then he did not know that any freight trains on that railroad carried passengers, and the fact that he placed himself upon a freight train was notice to him that he was wrongfully there, because the presumption is that freight trains are for freight and passenger trains for passengers. In the absence of any rule or practice permitting freight trains to carry passengers, the presumption is that one riding for his own convenience on a freight train, an engine, a hand car, or any other carriage of a common carrier that is evidently not designed for the transportation of passengers, is unlawfully there and is a trespasser. Bryant v. Railroad Co., 53 Fed. 997, 998, 4 C. C. A. 146, 147, 12 U. S. App. 115, 123; Powers v. Railroad Co., 153 Mass. 188, 190, 26 N. E. 446; Eaton v. Railroad Co., 57 N. Y. 382, 15 Am. Rep. 513; Files v. Railroad Co., 149 Mass. 204, 21 N. E. 311, 14 Am. St. Rep. 411; Hoar v. Railroad Co., 70 Me. 65, 72, 73, 35 Am. Rep. 299; Gardner v. New Haven & N. Co., 51 Conn. 143, 50 Am. Rep. 12; Graham v. Railway Co., 23 U. C. C. P. 541; Sheerman v. Railway Co., 34 U. C. Q. B. 451; Railroad Co. v. Michie, 83 Ill. 427. If, on the other hand, Purple knew the rules and the practice of the railroad company, then he knew that conductors were forbidden to carry passengers, and passengers were prohibited from riding, on extra freight trains. So that, whether he knew the rules or not, the duty was imposed upon him to inquire and to ascertain whether or not the train upon which he entered was a regular or an extra freight train. The instructions under consideration ignore this duty of inquiry which the situation and knowledge of Purple imposed upon him, and for that reason they were properly refused. He was a trespasser, not only if he knew that the train on which he rode was not permitted to carry passengers and that the conductor was not authorized to allow him to ride upon it, but also if he knew such facts relative to this matter as would have put a man of ordinary prudence and diligence upon an inquiry which would have led to a knowledge of these facts. The specifications of error in this case are numerous. They have not all been specifically set forth, but the rules and principles of the law and the facts, by which they must be judged, have now been carefully considered and declared. Our conclusion is that the material issues in this case were fairly and impartially tried, that the charge of the court tersely and correctly presented to the jury the rules of law applicable to the evidence, and that there was no error in the refusal of the court to submit the requested instructions of counsel for the plaintiff. The judgment below is accordingly affirmed. (114 Fed. 540.) GREAT NORTHERN RY. CO. v. BRUYERE. (Circuit Court of Appeals, Eighth Circuit. March 24, 1902.) 1. RAILROADS-REMOVAL OF TRESPASSERS-PERSONAL INJURIES. Plaintiff boarded a caboose on defendant's freight train to make inquiries from the conductor concerning his wife, having expected her on that train, and while he was still in the caboose, and waiting for the conductor, the train started. When the conductor came, he demanded that plaintiff pay his fare or get off, but refused to stop the train. Plaintiff stepped out onto the platform, and the conductor locked the door, leaving him outside, and he was thrown from the train by the sudden lurching of the caboose, after having attempted to re-enter. Held wrongful conduct on the part of the conductor, for which the company was liable if it was the proximate cause of the injury.1 2. SAME-PROXIMATE CAUSE OF INJURY-QUESTION FOR JURY. The question whether the wrongful conduct of the conductor was the proximate cause of the injury was for the jury. Sanborn, Circuit Judge, dissenting. In Error to the Circuit Court of the United States for the District of North Dakota. W. E. Dodge (C. Wellington and C. J. Murphy, on the brief), for plaintiff in error. James H. Bosard (R. H. Bosard, on the brief), for defendant in error. Before CALDWELL, SANBORN, and THAYER, Circuit Judges. 1 See note at end of case. THAYER, Circuit Judge. This is a suit for personal injuries brought by Richard N. Bruyere, the defendant in error and the plaintiff below, against the Great Northern Railway Company, the plaintiff in error. The plaintiff below gave evidence tending to show the following facts, which, in view of the verdict below, must be regarded by this court as having been established to the satisfaction of the jury: That he resided about six miles from Larimore in North Dakota; that on the evening of August 8, 1898, he went to the station of the defendant. company, in Larimore, with a view of meeting his wife, who had been at Grand Forks, and was expecting to return on defendant's freight train No. 15; that before that train arrived he heard that it had been taken possession of by a crowd of rioters, whom he termed "hoboes," at an intermediate station; that when the train arrived at Larimore he was on the platform of the station, expecting his wife, and that considerable excitement ensued, upon the arrival of the train, which attended the arrest of the rioters; that his wife did not get off the train, and, as he did not see the conductor, he went to the rear end of the train and boarded the caboose, with a view of interviewing the conductor and obtaining information concerning his wife; that, as the conductor was not in the caboose, he supposed that he was out making his report to the superintendent, and would return shortly, and that he accordingly remained in the caboose awaiting his return, and that while he was waiting the train started unexpectedly. The plaintiff below further testified that when the train started he supposed it would stop very shortly at the coal shed to coal up, and that in the meantime he could see the conductor and inquire about his wife; that when the train reached the coal shed, which was not far from the station, it was going faster, and did not stop, and that the conductor came in about that time; that he explained to him why he was on the train, told him that he expected his wife was coming on that train, and that he was looking after her, and that he also inquired of the conductor if she had started from Grand Forks on the train; that the conductor told him that no lady had started on the train with him that night from Grand Forks, and then told the plaintiff that he must get off of the train; that at that time the train was going pretty fast, and that he told the conductor it was going too fast to get off with safety; that the conductor then said he must pay his fare; that he told the conductor there was no place he wanted to go to, and that he asked him to slack up; that the conductor replied that he would not do so, and told him he must get off; that he, the plaintiff, thereupon stepped outside of the door, to the rear platform, whereupon the conductor followed him and immediately closed the door and fastened it; that he first went to the left-hand side of the train and looked along the side thereof and could see the train bending as though going round a curve; that he then went back to the door and tried it and shook it, but that it was fastened, so that he could not get in; that he thereupon went to the right-hand side of the platform, and was going to sit down there, when the caboose lurched and threw him. to the ground, injuring him seriously, where he lay unconscious until |