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near daylight, when he was revived by a shower and managed to get to a house which was about half a mile distant from the track. The plaintiff testified further, and in substance, on his cross-examination, that when the train started unexpectedly he intended to get off at the coal shed, where he supposed that the train would stop; that he didn't want to go anywhere as a passenger, his purpose being simply to see the conductor and obtain information about his wife; that the coal sheds were about half a mile from the station, and that when the train reached that point it was going pretty fast; that he wanted to get off there; that when the conductor demanded his fare he refused to pay it, telling him he didn't want to go anywhere; that he, in fact, wanted the conductor to stop the train; that when he went out on the platform he went there "to show the conductor that the train was going too fast for any man to get off safely"; and that the conductor followed him to the door, and, immediately after he had passed through it onto the platform, closed it and fastened it.

The trial court instructed the jury, in substance, that the plaintiff below was wrongfully upon the train, even though he boarded it for the purpose above stated; that he had no right to ride upon the train for the purpose of meeting the conductor and making inquiries about his wife; that he had no right to insist that the train should be stopped, after it had started, to let him off; and that it was his duty to have paid his fare when it was demanded and to have ridden until the train reached a regular station where he could get off. No exception could well be taken to this part of the charge by the defendant company, and none was taken. But the court proceeded to say:

"The plaintiff being wrongfully upon the train, the conductor had a perfect right, under the law, to remove him from the train, but in the exercise of that right he was charged with the duty not to unnecessarily expose the plaintiff to danger. The fact that the plaintiff was wrongfully upon the train would give the conductor no right either to injure him or expose him to danger. He, therefore, had no right to insist upon the plaintiff's leaving the train while it was in motion. His duty was either to stop the train and put the plaintiff off, if he decided that the plaintiff must leave the train, or to carry the plaintiff to the nearest station. This brings us to the issue of fact in the case upon which there is a conflict of evidence. Plaintiff says, in substance, that the conductor ordered him to leave the train, and that he stepped to the door for the purpose of pointing out that the train was going so fast that he could not leave it, and that the conductor shut the door, and locked it, thus fastening him out upon the platform. If you believe that is a true statement of the occurrence, the conduct of the conductor was wrongful, and if that wrongful conduct was the proximate cause of the plaintiff's injuries he is entitled to recover, unless he himself was guilty of contributory negligence, which I will presently explain to you more fully. Shutting the plaintiff out on the platform, if you find that he was shut out upon the platform, would be the proximate cause of plaintiff's injuries, if those injuries were the natural and probable result of that act, and such as a reasonable and prudent man would have foreseen as likely to result therefrom."

It is urged that error inheres in this portion of the charge, and the exception thereto raises the only question to be determined, namely, whether the act of the conductor in locking the door and compelling the plaintiff to ride on the platform, instead of on the inside of the

caboose, was a wrongful act, for which the defendant company can be held liable, assuming, as the lower court held, that the plaintiff was wrongfully on the train, and not entitled to the rights of a passenger.

In view of all the circumstances of the case, we entertain no doubt that the question last stated should be answered in the affirmative. It was obviously more dangerous to ride on the platform, where one standing or sitting was liable to be thrown off by the lurching of the car, than to ride on the inside. We may well take judicial notice of the fact that the platform of a car is not as safe a place to ride as the inside, because it is a common practice of railroad companies to place notices on the doors of their cars warning people not to ride on the platform because of the enhanced danger. Nor do we find any evidence in this record which furnishes a reasonable excuse for the conduct of the conductor in locking the plaintiff out on the platform and compelling him to ride there and incur the unnecessary risk of ben thrown off. He had boarded the train for a laudable purpose, and it had started unexpectedly, and had not stopped at the coal sheds, where he supposed it would stop, according to the usual custom. Moreover, the car, on the inside, does not seem to have been overcrowded, and the plaintiff was making no unseemly noise or disturbance to annoy other passengers in the caboose, if there were any. The fact, therefore, that he refused to pay his fare, did not warrant the conductor in locking him out on the platform, when the train was going at such speed that the plaintiff did not dare to jump off. The conductor's action in that matter must be pronounced wrongful and wanton, in that, without any sufficient cause or excuse, he willfully exposed the plaintiff to unnecessary danger.

The charge of the lower court is further criticised because it permitted the jury to determine, as a question of fact, whether the wrongful act of the conductor in locking the plaintiff out on the platform was the proximate cause of the injury, but in view of the plaintiff's own testimony, showing his attempt to get on the inside of the car after the locking of the door, and how he happened to be thrown off by the lurching of the car, we do not well see how the lower court could have acted differently. The question of proximate cause is usually one for the jury, as it certainly was in this case. Railway Co. v. Yeargin, 48 C. C. A. 497, 109 Fed. 436, 439; Railway Co. v. Kellogg, 94 U. S. 469, 474, 24 L. Ed. 256.

The question whether the plaintiff, after he was locked out on the platform, conducted himself as a prudent man should have done in his situation, or contributed to his own hurt by a want of ordinary care, was also submitted to the jury under proper instructions, and was decided adversely to the defendant company.

We find no error in the record, and the judgment below is accordingly affirmed.

SANBORN, Circuit Judge. I dissent in this case, because, in my opinion, the closing and locking of the door of a moving car against a trespasser upon the platform is not, as a matter of law, conclusive.

51 C.C.A.-37

2

evidence of a willful or reckless intent to injure him, and this was the legal effect of the charge of the court below. It charged the jury that the act of the conductor in closing and fastening the door was a wrongful act, and that if this act was the proximate cause of the injury the company was liable for it. This charge took from the jury the question whether or not this act evidenced a willful or reckless intent to injure the plaintiff, and prevented their consideration of this question. The plaintiff was a trespasser upon the train. The only duty of the company or of the conductor of the train to him was to abstain from wanton or reckless injury to him. Purple v. Railroad Co. (C. C. A.) 114 Fed. 123; Condran v. Railroad Co., 67 Fed. 522, 523, 14 C. C. A. 506, 508; McVeety v. Railway Co., 45 Minn. 269, 47 N. W. 809, 11 L. R. A. 174, 22 Am. St. Rep. 728; Way v. Railroad Co., 64 Iowa, 48, 19 N. W. 828, 52 Am. Rep. 431. In Trumbull v. Erickson, 97 Fed. 891, 893, 38 C. C. A. 536, 538, this court held that it was not, as a matter of law, conclusive evidence of even ordinary negligence for a passenger to ride upon the platform of a moving car when he could have occupied standing room within the car. If it is not conclusive evidence of ordinary negligence for one to ride upon the platform of a moving car, it cannot be conclusive evidence of a willful or reckless intent to injure a tramp or a trespasser to close the doors of the car against him when he is riding upon its platform. It may be that such an act under some circumstances would be evidence from which a jury might infer a malicious or reckless intent to injure, but I cannot persuade myself that it is conclusive evidence of such an intent, because it does not seem to me doubtful that all reasonable men would not agree that such an act indicates any willful or reckless intent on the part of the conductor who closes the door to injure the trespasser, and this is the test by which the question should be answered. Speer v. Board, 88 Fed. 749, 754, 32 C. C. A. IOI, 107; Railroad Co. v. Jarvi, 53 Fed. 65, 70, 3 C. C. A. 433. 438. For this reason I think the judgment below should be reversed, and a new trial should be granted.

NOTE.

Liability of Railroads or Street Car Companies for Ejection of Trespassers.

1. Authority of Employes.

[a] A railroad company is not liable for injuries caused by the expulsion of a trespasser by a brakeman having no authority to expel trespassers. -(Ill. App. 1898) Railway Co. v. Brackman, 78 Ill. App. 141;

(Mich. Sup. 1897) Hartigan v. Railroad Co., 71 N. W. 452, 113 Mich. 122. [b] (Ala. Sup. 1898) Where it is a brakeman's duty to put off persons not entitled to ride on the train, it being for him to determine who is not entitled to ride, his acts in putting persons off the train, whether rightfully or wrongfully, are within the scope of his employment.-Railway Co. v. Wildman, 24 South. 764, 119 Ala. 565.

[c] (Ill. App. 1890) A person who steps upon a car after he has once been put off is a trespasser, regardless of his right to be on the car in the first instance; and for an injury caused by his being ejected the second time, if no unnecessary force is used, he cannot recover. His right, as a passenger, to ride, cannot be enforced vi et armis. The remedy is by civil action.--Railroad Co. v. Olds, 40 Ill. App. 421.

2 51 C. C. A. 564.

[d] (Ill. App. 1898) A freight train brakeman has no implied authority to expel trespassers from the train, where no such express authority has been given him, and there is a conductor in charge of the train, who has such express authority.-Railway Co. v. Brackman, 78 Ill. App. 141.

[e] (Ky. App. 1901) Notice to the superintendent of the road and to the nearest station agent of the peril of the trespasser after he was ejected was notice to the company, and for their failure to exercise ordinary care to save his life, by notifying the servants in charge of a train which was soon to pass through the cut, the company is liable, if the servants in charge of the approaching train could, without hazarding the lives of passengers or the property of the company, have avoided running over him.-Fagg's Adm'r v. Railroad Co., 63 S. W. 580, 54 L. R. A. 919.

[f] (Miss. Sup. 1897) Where a flagman, whose duty it is, on discovering a trespasser on a train, to take him to the conductor, and then, if so directed, to stop the train, and put him off, ejects a trespasser on his own responsibility while the train is in motion, the company is liable for the resulting injury.-Railway Co. v. Hunter, 21 South. 304, 74 Miss. 444.

[g] (Mo. App. 1900) The duty of a freight brakeman to remove trespassers is not presumed, but must be proved.-Krueger v. Railway Co., 84 Mo. App. 358.

[h] (N. C. Sup. 1901) Where plaintiff, who was stealing a ride, was injured by jumping from a moving train because he was assaulted by the brakeman and flagman, the contention that the company was not liable, because the conductor was the only one authorized to eject a person from a train, cannot be sustained, since, if the conductor had sole authority, it was his duty to restrain those under him from assaulting even a trespasser.— Cook v. Railway Co., 38 S. E. 925, 128 N. C. 333.

[i] (Pa. Com. Pl. 1898) Where a boy aged 6, being a trespasser, sat down on the middle of the long step of a summer car, and, upon being told by the conductor to "get off," but, without any force or threats being used, got scared, and, falling off, lost his foot, the railway company is not liable.Feingold v. Traction Co., 7 Pa. Dist. R. 445, 4 Lack. Leg. N. 290, 21 Pa. Co. Ct. R. 183.

[j] (Tex. Civ. App. 1896) A brakeman has no implied authority to eject trespassers.-Galaviz v. Railroad Co., 38 S. W. 234, 15 Tex. Civ. App. 61.

[k] (Tex. Civ. App. 1900) Defendant had unloaded gravel in the street along its railroad track under the direction of the city, and plaintiff's son, while riding as a trespasser on defendant's car, being ordered off, jumped in the gravel, and slipped under the car, and was killed. The trainmen had attempted to keep boys from jumping on and off the train, and had warned them of the danger. The trainman who ordered plaintiff's son off was on the car ahead of the one the boy was on, and did not threaten him. Held, that the evidence did not show that the defendant was willfully negligent, and hence, as plaintiff's son was a trespasser, she was not entitled to recover.-House v. Blum, 56 S. W. 82.

[1] (Tex. Civ. App. 1901) Where there is a rule of a railroad company forbidding brakemen to eject trespassers from trains, and providing that conductors alone shall have such authority, and such rule is usually and customarily violated to the knowledge of the superior officers of the company, and no attempt is made to enforce it, the jury is authorized to find that a brakeman who knocked a trespasser off a car, whereby he was injured, was acting within the scope of his authority.-Railway Co. v. Rutherford, 62 S. W. 1069, judgment affirmed (Sup. 1901) 62 S. W. 1056, 94 Tex. 518.

[m] (Va. Sup. Ct. App. 1896) While expulsion of trespassers by a brakeman is not a duty incident to his employment, if it is the custom of brakemen to eject trespassers, and the company knows, or ought to know, of it, authority may be inferred.-Railroad Co. v. Anderson, 25 S. E. 947, 93 Va. 650.

2.

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Wanton, Willful, or Malicious Acts.

[a] (Ala. Sup. 1898) A railroad company is liable to a trespasser for injuries received by being wantonly and willfully thrown from the train by its servants acting within the scope of their employment.-Railway Co. v. Wildman, 24 South. 764, 119 Ala. 565.

[b] (Ark. Sup. 1899) Though one is a trespasser, a carrier is liable for an injury sustained by the malicious and willful act of its brakeman in expelling him from a train.-Railroad Co. v. Kilpatrick, 54 S. W. 971, 67 Ark. 47.

[c] (Ill. Sup. 1899) A railroad is liable to a trespasser for injuries sustained by his ejection only when such injuries result from the wanton or willful act of its servants; and a charge authorizing recovery if defendant's servants failed to exercise due care in such ejection was erroneous.-Railroad Co. v. Kingsley, 52 N. E. 931, 177 Ill. 558, reversing judgment (App. 1898) 78 Ill. App. 236.

[d] (Ill. App. 1898) Where a brakeman pulled a boy who was stealing a ride off the rods under a car while the train was in motion, and threw a stone at him, which caused him to fall under the car, the brakeman was acting within the scope of his authority, so as to render the railroad company liable for the resulting injury, though he acted in disobedience to the rules of the company.-Railroad Co. v. King, 77 Ill. App. 581.

[e] (Ill. App. 1900) In an action for injuries caused by the willful and malicious act of a conductor in ejecting a trespasser from a freight train, an instruction that there was no evidence from which the jury would be warranted in finding that the employés of the train had authority to eject trespassers therefrom was erroneous, since the conductor, being intrusted with control of the entire train, had implied authority, as a matter of law. to eject trespassers; and if he abused such authority, or acted improperly in the exercise thereof, defendant was liable.-Sanders v. Railroad Co., 90 Ill. App. 582.

[f] (Ky. App. 1893) Where a brakeman, in removing a trespasser, kicks him from the train while it is in rapid motion, the company is liable for injuries caused thereby, the act being within the scope of the brakeman's employment.-Smith v. Railroad Co., 23 S. W. 652, 95 Ky. 11, 22 L. R. A. 72.

[g] (La. Sup. 1901) Where a railway company's brakeman pelts a trespasser with rocks to make him get off the car on which he is riding, and in endeavoring to escape such trespasser falls and is killed, the company is liable therefor.-Dorsey v. Railway Co., 29 South. 177, 104 La. 478, 52 L. R. A. 92.

[h] (Mass. Sup. 1870) If assistants employed by the conductor of a railroad train to expel a trespasser from the car strike such person unjustifiably in expelling him, the railroad company is liable, though the blows were struck against the conductor's orders.-Coleman v. Railroad Co., 106 Mass. 160.

[i] (Mass. Sup. 1892) Though a person riding on a train is a trespasser, the company has no right recklessly and wantonly to inflict injuries on him.Planz v. Railroad Co., 32 N. E. 356, 157 Mass. 377, 17 L. R. A. 835.

[j] (Mich. Sup. 1897) A brakeman, required by the rules of a railroad company to familiarize himself with the rules of the company, which provided for the ejectment of trespassers, and that brakemen should act under the orders of the conductor, wrongfully forced a trespasser from the train while in motion without an order from the conductor. Held, that he acted without authority, and that the company was not liable for the injuries inflicted upon the trespasser.-Randall v. Railway Co., 71 N. W. 450, 113 Mich. 115, 38 L. R. A. 666.

[k] (Mo. App. 1900) Striking a trespasser in the face with a lantern and knocking him off the car is an improper act, for which the carrier will be liable, however slow the motion of the train, if the trespasser was thus deprived of the use of his faculties.-Krueger v. Railway Co., 84 Mo. App. 358.

[1] (N. Y. App. 1881) A conductor or brakeman of a railroad passenger train has implied authority incident to his position to remove a trespasser from the platform of a car, and a railroad company is liable for a wrongful expulsion of a trespasser on the platform of a car by a conductor, where he did not exercise his authority to accomplish a purpose of his own, though his act was reckless, illegal, and a breach of duty.-Hoffman v. Railroad Co., 87 N. Y. 25, 41 Am. Rep. 337, affirming (Super. Ct. 1880) 46 N. Y. Super. Ct. 526.

[m] (N. C. Sup. 1899) Where an employé of a railroad company, acting within the scope of his employment, compels a trespasser to get off a mov

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