The plaintiff in this case claims damages for personal injuries, alleged to have been received while a passenger on defendant's train at North Salt Lake. The jury rendered a verdict in his favor for the sum of $4,500, and, upom judgment being entered for that amount, the defendant, appealed to this court. The evidence shows substantially that the plaintiff had been in the employ of the defendant,, as section hand and section foreman, for a period of about, eight years, and on the day of the accident was so in its. employ, as section foreman, at the city of Ogden, Utah;, that on that day he received word from his family, who-resided at Salt Lake City, that several of his children were, sick with diphtheria, and were quarantined; that, after he-quit work in the evening, it being about dark, and, being-too late for defendant's passenger train, he went to a,
It was admitted on the trial that the engineer of the switch engine and the other employés in the train, if present, would testify “ that they were negligent in causing the train in question to strike against the caboose as violently as it did.” In view of the facts and circumstances thus proved on the trial; the court, in the course of its charge, instructed the jury as follows: “If you believe, from a ’preponderance of the evidence that the plaintiff was in the car, commonly called the ‘ caboose/ of the defendant, at North Salt Lake, and that he was there in good faith, and under circumstances authorizing him to believe •that he was there lawfully, and that he had a right to vide in the caboose, and that he was without fault, and
Counsel for appellant insist that the material question in this case is as to whether plaintiff was a passenger, and •that this instruction, to the effect that if he was in the caboose in good faith, and believed he was lawfully there, and had a right to ride there, etc., was erroneous, and presented an immaterial issue to the jury. If it were conceded that he was not lawfully in the box car, could it be said that he was not lawfully in the caboose? He was there with the knowledge of the conductor who had charge of the train. If this was an extra train, on which passengers were not allowed to ride, it was the conductor’s duty to inform him, and request him to leave in accordance with the regulations -of the defendant; and, if plaintiff had disregarded such request, the conductor could have lawfully removed him, using no more force than was necessary for that purpose. The conductor failing to do this, it must be presumed that the plaintiff wás rightfully there. A railroad company has a right to designate which of its freight trains shall carry passengers, and which shall not. It has a right to make regulations, and when so made, they are binding on its servants. Those riding on its trains are not presumed to know them. If its servants neglect or violate them, and, because of such neglect or violation, injury results to strangers, the company will be liable. It employs its servants, and has the power of removal, and the law is that the principal is bound by the acts of his agents. His liability does not necessarily arise because of any contract or privity between him and the party injured, nor is it affected by any relation existing between the parties..
*It is true, in many instances such liability is founded
Story, in his work on Agency, in section 452, says: “It is a general doctrine of law that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit for the acts or misdeeds of his agent, unless, indeed, he has authorized or co-operated in those acts or misdeeds, yet he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, neg-ligences, and other malfeasances or misfeasances, and omissions of duty of his agent in the course of his employment, although the principal did not authorize or justify or par
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. In this view of the case, the plaintiff was lawfully on the train, and the court did not err in its application of the law, as presented in the above instruction. 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. It is the duty of the company to carry him safely. Every person riding in a railroad car is presumed to be there lawfully, and the burden is upon the carrier to show affirma'tively that he was a trespasser. Railroad Co. v. Derby, 14 How. 468; Railroad Co. v. Books, 57 Pa. St. 339; Whitehead v. Railway Co., 99 Mo. 263, 11 S. W. Rep. 751;
Under the evidence, as disclosed by the record in this case, the third instruction, on the question of gross negligence, was properly given to the jury. The evidence shows that, after the plaintiff’s position was known to the defendant, it ran its cars against the caboose in such a violent manner as to throw him to the floor, and, when found, he was unconscious and severely injured. Under such circumstances, the jury had a right to pass on the question of gross negligence, for, even if the plaintiff was a trespasser, the defendant had no right to carelessly and recklessly injure him. In any event, it was liable for gross negligence. Railroad Co. v. Horst, 93 U. S. 291; Waterbury v. Railroad Co., 17 Fed. Rep. 671; McGee v. Railway Co., 92 Mo. 208, 4 S. W. Rep. 739.
Counsel for appellant further insist that the plaintiff was guilty of contributory negligence in getting on the train and into the caboose in question. The contributory negligence complained of is that the plaintiff went on one of defendant’s trains which was not allowed to carry passengers. If this is negligence per se, then it may be said of every person who is injured on a tram that he is guilty of negligence, for had he not gone on the train he would not have been injured. The fact of the plaintiff going into the caboose was not such an act as would make him guilty of negligence unless he was there after being admonished of danger, or in disregard of his perilous position, knowing it to be such; but no such monition or disregard appears from the evidence. On the contrary, the reasonable inference to be drawn therefrom is that he was in the caboose with the consent of the conductor and other servants of the defendant. This was a question of fact to be determined by the jury.
But even if he were guilty of negligence, as claimed,
In Northern Cent. Ry. Co. v. State, 29 Md. 420, the court said: “ Though the deceased may have incautiously gotten upon the track of defendant’s road, yet if he could not, at the time of the collision, by the exercise of ordinary care, have avoided the consequences of the defendant’s negligence, assuming that there was such, the right to recover exists. If, however, by ordinary care, he might have avoided the consequences of such negligence on the part of the defendant he would be the author of his own misfortune, and therefore no action would lie. The obligation is mutual to use care to avoid the consequences of each other’s negligence, the whole matter being for the determination of the jury, as to whose negligence and want of care constituted the proximate and direct cause of the injury.” Wagner v. Railway Co., 97 Mo. 512, 10 S. W. Rep. 486; Davies v. Mann, 10 Mees. & W. 545; Railroad Co. v. Still, 19 Ill. 499; Dunn v. Railway Co., 58 Me. 187; Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. Rep. 653; Creed v. Railroad Co., 86 Pa. St. 139.