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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;2 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, II 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. Ii 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 circunstances 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 williul 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. 101, 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. 152, 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. 761, 119 Ala. 563.

[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.-Gala viz v. Railroad Co., 38 S. W. 231, 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. 030. 2. 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 es. pelling him from a train.--Railroad Co. v. Kilpatrick, 54 S. W. 971, 67 Ark. 47.

[C] (1). 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 serrants failed to exercise due care in such ejection was erroneous.-Railroad Co. v. Kingsley, 52 N. E. 931, 177 nl. 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 III. 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 endea voring 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 T. 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 V. Y. Super, Ct. 520.

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

1

ing train, and, because of being compelled to so get off, the trespasser is killed, the railroad company is liable, though the employé's act was wanton and malicious.- Pierce v. Railroad Co., 32 S. E. 399, 124 X. C. 83, 44 L. R. A. 316.

[n] (Pa. Sup. 1879) Where the conductor of a railroad train, acting in the line of his duty, ejects from the platform of a car a person who has no right thereon, the company is liable if he does it in a careless, negligent, or reckless manner, but not if he maliciously ejects him therefrom.--Pennsylvania Co. v. Toomey, 91 Pa. 236.

[0] (Tex. Civ. App. 1900) Where one of defendant's brakemen, who had authority to eject trespassers from the train, while it was in rapid motion willfully, forcibly, and violently pushed and threw plaintiff from the platform of a passenger coach on which he was stealing a ride, defendant is liable for the injuries caused thereby, since, though plaintiff was a trespasser, defendant's employé in ejecting him should not do so in such manner as to willfully or causelessly injure him.-Railway Co. v. Lester, 59 S. W. 946, 24 Tex. Civ. App. 467. 3. Place of Ejection.

[a] (Ky. App. 1901) Where the servants in charge of a freight train ejected a trespasser in a drunken and helpless condition in a deep cut on a dark night, and he was run over and killed by a train which followed, as the servants ejecting him had reason to believe that he would be, the railroad company was liable for his death, though the place at which he was ejected was the place at which he entered the train.-Fagg's Adm'r y. Railroad Co., 63 S. W. 580, 54 L. R. A. 919.

[b] (Ky. Super. Ct. 1892) A trespasser on a freight train may be put off by the railroad company at any point on its road, using no unnecessary violence.- Railroad Co. v. Moss, 13 Ky. Law Rep. 684.

[c] (Ky. Super. Ct. 1892) Servants in charge of a railroad train, in putting a person off the train, even though a trespasser, must see that he has a safe place to alight; and if he is compelled to leave the train at a place where it is necessarily dangerous to do so, and is injured, the company is liable for the injuries received, though its servants. by reason of the darkness, may not have been aware of the danger.-Railroad Co. v. Gatewood, 14 Ky. Law Rep. 108.

(d) (Ky. Super. Ct. 1892) Where a trespasser is ejected from a train at a place where it is dangerous for him to alight, it is no defense that the trespasser was drunk, and thus contributed to his injury; as that fact made it the more incumbent on the servants of the company to see that he had a safe place to leave the train.-Railroad Co. v. Gatewood, 14 Ky. Law Rep. 108.

le] (La. Sup. 1898) A trespasser on a railroad train should not be ejected at night at a perilous place for alighting.-Young v. Railway Co., 25 South. 69, 51 La. Ann. 295.

[f] (Minn. Sup. 1885) A person who enters a railway train and refuses to pay his fare when lawfully demanded is a trespasser, not a passenger, and the carrier is not required at common law to put him off at a station or usual stopping place, but may expel him at any other place, provided care is taken not to expose him to serious injury or danger.—Wyman v. Railroad, Co., 25 N. W. 349, 31 Minn. 210. 4. Manner of Ejection.

(a) (U. S. C. C. A., Ga., 1898) Where a person stealing a ride on a train continues to get on after being put off, it does not entitle the railroad company to use increased force, especially where the trespasser is a child 10 years old.-Railway Co. v. Shaw, 31 C. C. A. 70, 86 Fed. 865.

[b] (III. Sup. 1889) The fact that the person ejected by the conductor from a horse car was a mere trespasser makes no difference, if the conductor failed to act in a prudent manner, with a due regard for his safety, in ejecting him, in consequence of which failure he was injured.- Railway Co. v. Gastka, 21 X. E. 522, 128 Ill. 613, 4 L. R. A. 481, affirming (App. 1888) 27 Ill. App. 518.

(c) (Ind. Sup. 1872) Even when the relation of carrier and passenger does not exist, a railroad company is bound to use care in putting a person off its cars.-Railway Co. v. Powell, 10 Ind. 37.

[d] (Ind. App. 1895) Though a carrier has the right to expel a trespasser from its train, it will be liable if its servant in so doing uses unnecessary force and violence.-Railroad Co. v. Matthews, 41 N. E. 812, 13 Ind. App. 335.

[e] (Ky. App. 1893) A brakeman has implied authority to remove from his train, in a lawful manner, a trespasser found on a car platform; and where he uses unnecessary force the carrier is liable.-Smith v. Railroad Co., 23 S. W. 652, 95 Ky. 11, 22 L. R. A. 72.

[f] (Ky. App. 1901) As the master is liable for the acts of his servant within the apparent scope of the business intrusted to him, instructions by a railroad company to its brakeman not to expel trespassers from trains, but to report the facts to the conductor, will not relieve the company from liability for any unnecessary violence used by a brakeman in ejecting a trespasser, and this rule applies to freight trains as well as to passenger trains.Railroad Co. v. West, 60 S. W. 290.

[g] (La. Sup. 1898) Greater care must be used in ejecting a crippled person, though a trespasser, from a train, than it would be necessary to use in case of a person in good physical condition.--Young v. Rail Co., 25 South. 69, 51 La. Ann. 295.

[h] (Ohio C. C. 1897) Where the plaintiff was merely trespassing on de. fendant's train, with no criminal intent, his presence there does not forfeit him his legal rights, and while defendant's servants may remove him, using necessary force to do so, the law still shields him from violent, unnecessary, and malicious assault at their hands, and he is entitled to recover if he is thus injured in their endeavors to remove him.-Railroad Co. v. Boyer, 18 Ohio Cir. Ct. R. 327, 10 0. C. D. 199.

[i] (Pa. Sup. 1886) In ejecting from a railway car a trespasser, care must be taken that it be not done in such manner as to endanger his life or limbs. Where such care is not taken, it is negligence, for which the company is answerable.-Biddle v. Railway Co., 4 Atl. 485, 112 Pa. 551.

[j] (Pa. Sup. 1893) Even if plaintiff was a trespasser, the driver was not justified in removing her from the car with utter disregard of her personal safety.-Barre v. Railway Co., 26 Atl. 99, 155 Pa. 170.

[k] (S. C. Sup. 1892) A person who enters a passenger coach as a passenger, and who, on demand by the conductor, refuses to pay his legal fare, becomes a trespasser on the train, and is considered a trespasser ab initio. as if his entry had been unlawful; and for his ejection force may be used, in proportion to his resistance.- Moore v. Railroad Co., 16 S. E. 781, 35 S. C. 1.

[1] (Tex. Sup. 1899) Where one in charge of an engine had absolute possession of its machinery, the jury were authorized to find that he had authority to eject a trespasser from the footboard, thereby making the railroad liable for excessive force used in such ejection.-Railway Co. v. Zantzinger, 53 S. W. 379, 93 Tex. 64, 47 L. R. A. 282, 77 Am. St. Rep. 829, affirming judgment (Civ. App. 1899) 19 S. W. 677.

[m] (Tex. Civ. App. 1900) A railroad company is not relieved from liability to conduct its business so as not to unnecessarily or causelessly injure trespassers whom it is ejecting from its trains.-Railway Co. v. Black, 57 S. W. 330, 23 Tex. Civ. App. 119. 5. Failure to Stop Train.

[a] (Ga. Sup. 1898) The forcible expulsion from a freight train running 25 miles an hour, by a brakeman, of a trespasser, resulting in an injury to the latter, gives him a right of action against the company.-Railway Co. v. Godkin, 30 S. E. 378, 104 Ga. 655, 69 Am. St. Rep. 187.

[b] (Ill. Sup. 1898) One who, on purchasing a ticket, was informed by the station agent that it entitled him to ride on a freight train, which, under the company's regulations, was not allowed to carry passengers, was not on entering such train, a trespasser, whom the trainmen could forcibly eject after the train had started, without advising him of the regulation, and giring him an opportunity to alight.-Railroad Co. v. Davenport, 52 N. E. 266, 177 III. 110, atfirming judgment (App. 1898) 75 Ill. App. 579.

[C] (Ky. App. 1896) A trespasser, who was injured while trying to climb upon a car in a slowly-moving freight train, which he was prevented from doing by a brakeman, cannot recover damages from the railroad company,

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