Bryant v. Chicago, St. P., M. & O. Ry. Co.

53 F. 997 | 8th Cir. | 1893

SANBORN, Circuit Judge,

(after stating the facts.) If the defendant undertook to carry the deceased without the payment of fare, it was bound to the exercise of due care in performing the obligation it voluntarily assumed. Railway Co. v. Derby, 14 How. 468; The New World v. King, 16 How. 469; Waterbury v. Railroad Co., 17 Fed. Rep. 671, 673.

Whatever the rule may be when one is 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, (Powers v. Railroad Co., 153 Mass. 188, 190, 26 N. E. Rep. 446; Eaton v. Railroad Co., 57 N. Y. 382; Files v. Railroad Co., 149 Mass. 204, 21 N. E. Rep. 311; Hoar v. Railroad Co., 70 Me. 65, 72, 73; Gardner v. Railroad Co., 51 Conn. 143; Graham v. Railway Co., 23 17. C. C. P. 541; Sheerman v. Railway Co., 34 17. C. Q. B. 451; Railroad Co. v. Michie, 83 Ill. 427,) the presumption is that one riding in a passenger coach, an omnibus, or any other carriage of a common carrier, that is palpably designed for the transportation of passengers, is lawfully there, by invitation on permission of the employes of the carrier in charge of the vehicle, and that these employes have authority to bind the carrier by such invita lion or permission. Railway Co. v. Books, 57 Pa. St. 339, 346; Railroad Co. v. Derby, supra; The New World v. King, supra; Railway Co. v. Thompson, 8 N. E. Rep. 19 N. E. Rep. 357; Hutch. Carr. § 334. The reason of the rulo is that the carrier offers its passenger trains and coaches for the transportation of persons, and in their operation confides to its servants in charge of them the business of inviting and accepting persons thereon as passengers. Whenever one enters a passenger coach on such an invitation, or under such a permission, and the transportation commences, a contract between the passenger and carrier is implied. The carrier, by holding out its passenger train or coach for the carriage of passen- _ gers, offers to carry them with due care; and the passenger, by entering the coach, and allowing himself to he transported, accepts the offer, and impliedly agrees to pay his fare, and thus the contract becomes complete.' The presumptions referred to are not conclusive. Proper evidence or countervailing circumstances inay rehut them. But, in the absence of these, they are wise and salutary, and should have proper consideration. They are but the application of the established rules of agency to the business of the common carrier. That the servant of a earner, in charge of a passenger coach and engine which are carrying persons over its railroad, should be presumed to have the authority from the carrier to accept such persons as passengers, is but the application of the familiar rule that the master is bound by the acts of! the servant, within the scope of the usual business confided to him, because the master is presumed to authorize and approve the known acts that are incident to such an employment. Story, Ag. (9th Ed.) § 56.

In view of this presumption, and the further presumption that the deceased was lawfully riding, which arises from the fact that he was riding over defendant’s railroad, through its yard, in one of its passenger coaches, which had brought Mm and others to the depot a few hours before, drawn by one of its engines, operated by one of its engineers, and conducted by its general yard master, we are of the opinion that there was some evidence; in this case tending to show that the relation of carrier and passenger existed between the defendant and the deceased, and that the question whether this relation did exist should have been submitted to the jury. The judgment is accordingly reversed, and the cause remanded for further proceedings not inconsistent with this opinion.