violated, and that, as a reasonable man, he could not rely on the conductor's invitation.

Another employee than the conductor may have ostensible authority which will protect one who, in good faith and in the exercise of ordinary prudence, relies on such appearance of authority in riding on a passenger train with the permission of such employee. Thus, in Western & A. R. Co. v. Wilson (1883) 71 Ga. 22, 2 Am. Neg. Cas. 382, it was held that a railroad company was liable for an injury to a person who was attempting to board a moving passenger train under the advice of a brakeman. The plaintiff testified that he thought the brakeman was the conductor, and that he would not have attempted to get on if he had not been told to do so.

Permission not ostensibly authorized.

It sometimes appears that when a person is riding on a passenger train without paying a fare, with the permission of one of the trainmen, there is some collusive understanding that is inconsistent with a claim of reliance on the trainman's apparent authority to grant the permission. It has been held in several cases that a person riding on a passenger train under a collusive agreement to avoid the payment of fare is not entitled to recover from the carrier for its failure to exercise ordinary care to avoid an injury to him. Sessions v. Southern P. Co. (1911) 159 Cal. 599, 114 Pac. 982; Toledo, W. & W. R. Co. v. Brooks (1876) 81 Ill. 245; Mendenhall v. Atchison, T. & S. F. R. Co. (1903) 66 Kan. 438, 61 L.R.A. 120, 97 Am. St. Rep. 380, 71 Pac. 846; Duff v. Allegheny Valley R. Co. (1879) 91 Pa. 458, 36 Am. Rep. 675. Compare Louisville & N. R. Co. v. Marlin (1915) 135 Tenn. 435, L.R.A.1917A, 417, 186 S. W. 595. In Sessions v. Southern P. Co. (Cal.) supra, it appeared that the plaintiff was injured in a collision while riding in a passenger coach, ostensibly on an expired pass, but actually by a collusive agreement with the conductor whereby he avoided the payment of a fare. The court held that the plaintiff was a trespasser, and could not recover unless he was wilfully or

recklessly injured by the defendant's servants.

In Toledo, W. & W. R. Co. v. Brooks (1876) 81 III. 245, it appeared that the plaintiff's intestate was killed in a collision while riding on a passenger train without paying a fare, by the permission of the conductor. The court held that it was error to refuse to give an instruction that, under such circumstances, the railroad company was not liable for the negligence of its officers.

In Mendenhall v. Atchison, T. & S. F. R. Co. (1903) 66 Kan. 438, 61 L.R.A. 120, 97 Am. St. Rep. 380, 71 Pac. 846, the court held that a boy of fifteen was not a passenger where he paid a brakeman on a passenger train a sum of money to be carried to a certain point, and was instructed to ride on the platform of the baggage car and keep out of sight; and that he could not recover as a passenger for injuries sustained while riding as instructed.

In Duff v. Allegheny Valley R. Co. (1879) 91 Pa. 458, 36 Am. Rep. 675, it was held that a railroad company was not liable, in the absence of proof of wanton or wilful misconduct by its employees, for the death of a newsboy who was riding on one of its passenger trains without the payment of fare, by a collusive arrangement with the conductor.

In Louisville & N. R. Co. v. Marlin (Tenn.) supra, it appeared that the plaintiff was injured when compelled to jump from a moving train on a high trestle by a Pullman conductor, after he had bribed an employee of the railroad company to allow him to ride on the train. Although the act of the Pullman conductor was reckless, the court held that the railroad company was not liable for the resulting injury to the plaintiff, since the conductor was not its servant.

2. Freight or switching train.

Permission ostensibly authorized.

In a number of cases it has been held that one who, in good faith, and with reasonable prudence, relies on the ostensible authority of an employee of a railroad company to permit him

to ride on a freight train, is entitled to the exercise of at least ordinary care from the company while so riding, though the employee violates his orders in granting the permission.

United States.-Dysart v. Missouri, K. & T. R. Co. (1903) 58 C. C. A. 592, 122 Fed. 228.

Arkansas.

Arkansas Midland R. Co. v. Griffith (1897) 63 Ark. 491, 39 S. W. 550, 2 Am. Neg. Rep. 105.

Maine.-Dunn v. Grand Trunk R. Co. (1870) 58 Me. 187, 4 Am. Rep. 267. Missouri.-Whitehead v. St. Louis, I. M. & S. R. Co. (1889) 99 Mo. 263, 6 L.R.A. 409, 11 S. W. 751; Berry v. Missouri P. R. Co. (1894) 124 Mo. 223, 25 S. W. 229.

Oregon. Simmons v. Oregon R. Co. (1902) 41 Or. 151, 69 Pac. 440, 1022.

Tennessee. See Louisville & N. R. Co. v. Ward (1896) 98 Tenn. 123, 60 Am. St. Rep. 848, 38 S. W. 727, 1 Am. Neg. Rep. 187.

Texas.-Texas & P. R. Co. v. Garcia (1884) 62 Tex. 285, 6 Am. Neg. Cas. 519.

Utah. Everett v. Oregon Short Line & U. N. R. Co. (1893) 9 Utah, 340, 34 Pac. 289.

Wisconsin.-Lucas v. Milwaukee & St. P. R. Co. (1873) 33 Wis. 41, 14 Am. Rep. 735, 10 Am. Neg. Cas. 532; Boehm v. Duluth, S. S. & A. R. Co. (1895) 91 Wis. 592, 65 N. W. 506. See also Hendrickson v. Wisconsin C. R. Co. (1909) 143 Wis. 179, 122 N. W. 758, 126 N. W. 686.

Thus, in Dysart v. Missouri, K. & T. R. Co. (Fed.) supra, the court held that a physician was entitled to recover from a railroad company for an injury sustained while riding on a freight train by the permission of a train master, who, in violation of his instructions, issued the permit without an order from the general superintendent. The decision appears to be based on the ground that the physician was a passenger, the court stating that the train master had apparent authority to make a contract of carriage on a freight train which was binding on the company.

Likewise, in Boehm v. Duluth, S. S. & A. R. Co. (1895) 91 Wis. 592, 65 N. W. 506, it was held that the defend

ant railroad company was liable for an injury sustained by the plaintiff in being ejected from a moving freight train which he had boarded with the permission of a station agent of the defendant company.

And in Texas & P. R. Co. v. Garcia (Tex.) supra, it was held that a railroad company was liable for an injury to a minor, caused by the negligent operation of its train while he was alighting, after being permitted by the conductor in charge of the train to ride on a drover's pass, although it was a violation of the rules of the company to allow a minor to be carried on a drover's pass.

The fact that passengers are allowed, under the rules of a railroad company, to ride on certain freight trains, though not on others, is frequently a controlling circumstance in determining whether an employee has ostensible authority to permit a person to ride on the latter class of trains. Thus, in Lucas v. Milwaukee & St. P. R. Co. (Wis.) supra, it appeared that the plaintiff, a child slightly more than eight years old, was one of a party to whom permission was given by a trainman of the defendant company to ride on one of its through freight trains, and that while the party was boarding the car the plaintiff was thrown to the track and injured by a negligent coupling of cars. It was held that the plaintiff was entitled, as a passenger, to recover for the injury if the persons in charge of her, at the time of the injury, were not guilty of contributory negligence, since some of the defendant company's freight trains carried passengers, and the party to which the plaintiff belonged had a right to rely on the apparent authority of the trainman to permit them to ride, even though there was a rule of the company, unknown to them, which forbade the carriage of passengers on through freight trains. Likewise, in Everett v. Oregon Short Line & U. N. R. Co. (Utah) supra, it appeared that, under the rules of the defendant company, some of its freight trains carried passengers and some did not, and that the plaintiff was injured by negligence while riding in the ca

boose of a freight train, with the permission of the conductor in charge thereof. In afirming a judgment for the plaintiff the supreme court said: "The conductor of the train in question was the agent of the defendant. If the plaintiff was wrongfully on the train, it was his duty to so inform him, and remove him therefrom, which removal, so far as the evidence shows, would have avoided the injury. His neglect in doing this is the neglect of his principal. Where a company has adopted the system of carrying passengers on part of its freight trains, and a person, in good faith, goes on one which is not allowed to carry passengers, not knowing it to be such a train, and is allowed to remain there by the agent of the company, he will be entitled to all the rights and remedies of a person lawfully on such a train which does carry passengers." In Dunn v. Grand Trunk R. Co. (1870) 58 Me. 187, 4 Am. Rep. 267, it also appeared that passengers were properly carried on some freight trains of the defendant company, but not on others, and that the plaintiff was injured while riding on a freight train with the permission of the conductor, and after paying a fare, but in violation of the rules of the company. court held that if the plaintiff did not have notice that he was violating the rules of the company, he could recover from the railroad company for a negligent injury. And in Whitehead v. St. Louis, I. M. & S. R. Co. (1889) 99 Mo. 263, 6 L.R.A. 409, 11 S. W. 751, it was held that a railroad company was liable to a boy who was injured in a rear end collision caused by negligence while riding in the caboose of a freight train with the permission of its conductor, it appearing that passengers were permitted on some freight trains, but not on others. The court assigned as the ground for its decision the apparent authority of the conductor to permit the plaintiff to ride on the freight train. See, to the same effect, Berry v. Missouri P. R. Co. (1894) 124 Mo. 223, 25 S. W. 229, and Simmons v. Oregon R. Co. (1902) 41 Or. 151, 69 Pac. 440, 1022.

The

In Berry v. Missouri P. R. Co. (Mo.)

"The ultimate

supra, the court said: test by which all doubtful cases should be determined resolves itself into a question of good faith on the part of the person claiming to be a passenger, based on the acts, representations, and appearances for which the carrier is responsible. If from these acts, representations, and appearances done or held forth by the carrier, a person riding with the express or implied consent of the conductor is justified in believing that this consent is in accord with his duty and authority as a conductor, and not in violation or in fraud of the regulations and rights of the carrier, then he should be recognized in the fullest sense as a passenger."

Under a statute requiring local freight trains to carry passengers, it has been held that a conductor was acting within the scope of his authority in permitting the plaintiff to ride. on a freight train and in collecting his fare, whether it was a local train or not; and that the plaintiff could recover from the railroad company for an injury sustained while riding on the freight train, and caused by the negligence of the company. It was also held that a derailment due to a defective crosstie raised a presumption of such negligence as would entitle the plaintiff to a recovery. Arkansas Midland R. Co. v. Griffith (1897) 63 Ark. 491, 39 S. W. 550, 2 Am. Neg. Rep. 105.

In Louisville & N. R. Co. v. Ward (1897) 98 Tenn. 123, 60 Am. St. Rep. 848, 38 S. W. 727, 1 Am. Neg. Rep. 187, it appeared that the plaintiff, an employee of a shipper, was requested, while engaged in loading potatoes, to get on a car to set a brake, and was thrown from the car and injured by the negligence of the defendant railroad company's servants in running a locomotive violently against the car on which he was standing. In upholding a judgment in his favor the supreme court said: "The questions of fact in this case were properly left to the jury, that is, as to whether plaintiff was a mere volunteer, aiding the brakeman on his invitation, or whether he was acting in his own interest

and that of his employers. The question of negligence in the servants of the railroad company was left to the jury, and they were told that in no event could the plaintiff recover unless the railroad company was negligent." See, to the same effect, Hendrickson v. Wisconsin C. R. Co. (1910) 143 Wis. 179, 122 N. W. 758, 126 N. W. 686. The two decisions last cited do not appear to be based on any principle in the law of master and servant, but on the duty of a carrier toward a person who is injured while on its premises to attend to the business of himself or his principal. The invitation of the carrier's employee is unimportant except that it tends to show that the person injured was performing his duty with reasonable caution.

Permission not ostensibly authorized.

Ordinarily an employee of a railroad company has no ostensible authority to permit a person to ride on a freight or switching train gratuitously or in consideration of money for the personal use of the employee. A person injured while riding on a freight or switching train with a permission of that character is not entitled to recover from the railroad company unless the injury is wantonly or wilfully. inflicted by a servant of the company in the course of his employment.

United States.-Purple v. Union P. R. Co. (1902) 57 L.R.A. 700, 51 C. C. A. 564, 114 Fed. 123, 11 Am. Neg. Rep. 509.

Alabama. See Thompson v. Nashville, C. & St. L. R. Co. (1909) 160 Ala. 590, 49 So. 340.

Arkansas.-St. Louis, I. M. & S. R. Co. v. Jones (1910) 96 Ark. 558, 37 L.R.A. (N.S.) 418, 132 S. W. 636; Kruse v. St. Louis, I. M. & S. R. Co. (1911) 97 Ark. 137, 133 S. W. 841.

Connecticut. Bergan v. Central Vermont R. Co. (1909) 82 Conn. 574, 74 Atl. 937.

Georgia. Higgins v. Cherokee R. Co. (1884) 73 Ga. 149; Atlanta & W. P. R. Co. v. West (1905) 121 Ga. 641, 67 L.R.A. 701, 104 Am. St. Rep. 179, 49 S. E. 711.

Illinois. Cleveland, C. C. & St. L. R. Co. v. Best (1897) 169 Ill. 301, 48

N. E. 684; Chicago, B. & Q. R. Co. v. Casey (1382) 9 Ill. App. 632.

Indiana.-Everhart v. Terre Haute & I. R. Co. (1881) 78 Ind. 292, 41 Am. Rep. 567; Smith v. Louisville, E. & St. L. R. Co. (1890) 124 Ind. 394, 24 N. E. 753; Cooper v. Lake Erie & W. R. Co. (1893) 136 Ind. 366, 36 N. E. 272; Stalcup v. Louisville, N. A. & C. R. Co. (1897) 16 Ind. App. 584, 45 N. E. 802, 1 Am. Neg. Rep. 28.

Kansas. Atchison, T. & S. F. R. Co. v. Lindley (1889) 42 Kan. 714, 6 L.R.A. 646, 16 Am. St. Rep. 515, 22 Pac. 703; Kansas City, Ft. S. & M. R. Co. v. Berry (1894) 53 Kan. 112, 42 Am. St. Rep. 278, 36 Pac. 53, 3 Am. Neg. Cas. 469; Chicago, R. I. & P. R. Co. v. Lacy (1908) 78 Kan. 622, 97 Pac. 1025.

Kentucky.-Taylor v. Chesapeake & O. R. Co. 157 Ky. 735, 163 S. W. 1084; Chesapeake & O. R. Co. v. Smith (1915) 162 Ky. 747, 172 S. W. 1088; Louisville & N. R. Co. v. Thornton (1900) 22 Ky. L. Rep. 778, 58 S. W. 796; Skirvin v. Louisville & N. R. Co. (1907) 30 Ky. L. Rep. 1208, 100 S. W. 308; Peak v. Louisville & N. R. Co. (1902) 23 Ky. L. Rep. 2157, 66 S. W. 995.

Louisiana.-Reary v. Louisville, N. O. & T. R. Co. (1888) 40 La. Ann. 32, 8 Am. St. Rep. 497, 3 So. 390; Candiff v. Louisville, N. O. & T. R. Co. (1890) 42 La. Ann. 477, 7 So. 601; Johnson v. Louisiana R. & Nav. Co. (1911) 129 La. 332, 36 L.R.A. (N.S.) 887, 56 So. 301.

Minnesota. McVeety v. St. Paul, M. & M. R. Co. (1891) 45 Minn. 268, 11 L.R.A. 174, 22 Am. St. Rep. 728, 47 N. W. 809; McNamara v. Great Northern R. Co. (1895) 61 Minn. 296, 63 N. W. 726; Janny v. Great Northern R. Co. (1896) 63 Minn. 380, 65 N. W. 450; Brevig v. Chicago, St. P. M. & O. R. Co. (1896) 64 Minn. 168, 66 N. W. 401; Demaray v. Great Northern R. Co. (1913) 121 Minn. 516, 141 N. W. 804.

Mississippi.-Alabama & U. R. Co.

v. Livingston (1904) 84 Miss. 1, 36 So. 256; White v. Illinois C. R. Co. (1911) 99 Miss. 651, 55 So. 593.

Missouri.-Sherman v. Hannibal & St. J. R. Co. (1880) 72 Mo. 62, 37 Am. Rep. 423; O'Donnell v. Kansas City, St. L. & C. R. Co. (1906) 197 Mo. 110, 114 Am. St. Rep. 753, 95 S. W. 196; Hall v. Missouri P. R. Co. (1909) 219 Mo. 553, 118 S. W. 56; Whiteaker v. Chicago, R. I. & P. R. Co. (1913) 252 Mo. 438, 160 S. W. 1009; Diamond v. Missouri P. R. Co. (1915) — Mo. 181 S. W. 12; Youmans v. Wabash R. Co. (1910) 143 Mo. App. 393, 127 S. W. 595; McDonald v. St. Louis & S. F. R. Co. (1912) 165 Mo. App. 75, 146 S. W. 91; Giles v. Missouri P. R. Co. (1913) 169 Mo. App. 24, 154 S. W. 852.

New York.-Eaton v. Delaware, L. & W. R. Co. (1874) 57 N. Y. 382, 15 Am. Rep. 513.

North Carolina.-Vassor v. Atlantic Coast Line R. Co. (1906) 142 N. C. 68, 7 L.R.A. (N.S.) 950, 54 S. E. 849, 9 Ann. Cas. 535.

Oklahoma.-Atchison, T. & S. F. R. Co. v. Johnson (1895) 3 Okla. 41, 41 Pac. 641, 6 Am. Neg. Cas. 187; Folley v. Chicago, R. I. & P. R. Co. (1905) 16 Okla. 32, 84 Pac. 1090; Chicago, R. I. & P. R. Co. v. Shadid (1916) 60 Okla. 188, 159 Pac. 913.

Tennessee.-Louisville & N. R. Co. v. Hailey (1895) 94 Tenn. 383, 27 L.R.A. 549, 29 S. W. 367, 10 Am. Neg. Cas. 250; Sands v. Southern R. Co. (1901) 108 Tenn. 1, 64 S. W. 478.

Texas.-Houston & T. C. R. Co. v. Moore (1878) 49 Tex. 31, 30 Am. Rep. 98, 10 Am. Neg. Cas. 282; Gulf, C. & S. F. R. Co. v. Campbell (1890) 76 Tex. 174, 13 S. W. 19; Texas & P. R. Co. v. Black (1894) 87 Tex. 160, 27 S. W. 118; Mexican Nat. R. Co. v. Crum (1894) 6 Tex. Civ. App. 702, 25 S. W. 1126, 12 Am. Neg. Cas. 612; Missouri, K. & T. R. Co. v. Tonahill (1897) 16 Tex. Civ. App. 625, 41 S. W. 875, 3 Am. Neg. Rep. 287; St. Louis S. W. R. Co. v. White (1896) Tex. Civ. App.

Northern R. Co. (1908) 49 Wash. 98, 94 Pac. 895.

Wisconsin.-Jenkins v. Chicago, M. & St. P. R. Co. (1876) 41 Wis. 112; Jacob v. Chicago & N. W. R. Co. (1915) 159 Wis. 349, 150 N. W. 427.

In Chicago, R. I. & P. R. Co. v. Lacy (1908) 78 Kan. 622, 97 Pac. 1025, it appeared that the plaintiff's intestate, a railroad employee, was riding in the caboose of a freight train without paying a fare, by the permission of the conductor, when the air brakes of a train, following at the usual interval, failed to work effectively and a rearend collision occurred which resulted in his death. The court held that the railroad company could be held liable for the injury or death of one in the position of the intestate only on proof of wanton or reckless negligence by its employees, and that such negligence was not shown by the evidence.

Likewise in Bergan v. Central Vermont R. Co. (1909) 82 Conn. 574, 74 Atl. 937, the court held that a railroad company was not liable to a person injured in a collision where it appeared that the latter was riding on a freight train contrary to the rules of the company, but with the consent of the conductor of the train.

Similarly, in Eaton v. Delaware, L. & W. R. Co. (N. Y.) supra, it was held that a railroad company was not liable to a young man who was invited by the conductor to ride on a freight train to a certain point to obtain employment as a brakeman, and was injured en route through the negligence of the company's employees in not sending someone back to flag a train following them. The decision was based on the ground that the conductor had neither actual nor apparent authority to carry the plaintiff on the train.

And in Powers v. Boston & M. R. Co. (1891) 153 Mass. 188, 26 N. E. 446, it was held that a railroad company was not liable for an injury sustained by the plaintiff in a collision while he was riding without the payment of a fare, in the caboose of a freight train, at the invitation of the conductor in charge thereof. The court assigned as the chief reason for its decision that it