74 A. 937 | Conn. | 1909
The complaint alleged that "the plaintiff was a passenger on one of the trains of said defendant company, and lawfully travelling thereon," and was injured by its negligence in causing another train "to collide with the rear end and caboose, or passenger-car, of the train upon which the plaintiff was then a passenger and in which he then was." These averments were denied by the answer.
The evidence which he introduced was to the following effect: He went to the defendant's station at Millers Falls in Massachusetts, intending to take a regular passenger train then about to leave for New London, and having a telegraphic order to its conductor to pass him free. Shortly before the time for its departure, this pass was revoked. He, however, proceeded to have his baggage checked and was intending to travel as a passenger upon the train, but it started before he got on board. He was a telegraph operator by profession, and had been, until that day, *576 employed as such on a railroad which connected with the defendant's railroad at Millers Falls. A freight train on the defendant's railroad was soon to leave for New London, and he asked the conductor if he would carry him there, saying that he had missed the morning passenger train and "wanted to get to New London that afternoon, money or no money." The conductor assented, and the plaintiff entered the caboose and took a seat in the "monitor," or cupola. Here he rode for some seventy miles until the train stopped at South Willington in this State, where the caboose was wrecked by a rear-end collision with another train of the defendant following on the same track. The conductor had not asked him for a ticket, pass, or fare. It was the plaintiff's understanding of his arrangement with him that "if he wanted to take money, it was his privilege of doing it," and that he (the plaintiff) would pay his fare, if fare were required of him; and otherwise go free.
There is a prima facie presumption that every one riding in a regular passenger-car upon a railroad operated by a common carrier is there lawfully as a passenger. There is a like presumption that one riding on a train which is purely a freight train, upon such a railroad, is not there lawfully as a passenger; and, if he claim the rights of one, the burden of proof is upon him to show that, under the special circumstances of the case, the presumption has been rebutted. That a caboose was part of the train, and that he was seated in that, was insufficient to support this burden. Eaton v. Delaware, L. W. R. Co.,
There was no testimony as to the cause of the collision. It may have occurred through no fault of the defendant. Not being a passenger, the plaintiff, even if he could be regarded as a licensee, could not claim that a presumption of fault arose from the mere fact that a collision occurred. A nonsuit therefore was properly ordered.
There is no error.
In this opinion the other judges concurred.