The opinion
Sherwood, J.
From the facts already stated it may be gathered that the following questions are prominent on the record:
First. Was Berry a passenger or entitled to rights as such? Second. Was the defendant guilty of negligence or of such wanton and willful conduct as resulted in the death of Berry? Third. Was Berry guilty of contributory negligence?
As to the first:
1. Did Berry occupy the relation of passenger toward the defendant company? The general definition of' the term is this: “A passenger is a person who undertakes, with the consent of the carrier, to travel in the conveyance provided by the latter, otherwise than in the service of the carrier as such.” 2 Shear. & Redf. on Neg. [4 Ed.], sec. 488.
“ £tp]ie right which a passenger by a railway has to-' be carried safely does not depend on his having made *325 a contract;’ but The fact of his being a passenger, easts a duty on the company to carry him safely.’ But, where one rides on a railway train, without the proper assent of the company, as a free passenger, the rule is otherwise. There must be a true undertaking to carry, or the relation of carrier and passenger will not be held to subsist. So,., when the plaintiff rides without the defendant’s permission, as where he is invited or suffered to ride gratuitously by the defendant’s employees, who have no right to carry any one free, there can be no recovery in case of injury.” Beach on Contrib. Neg. [2 Ed.], sec 165, and cases cited.
“Where the person injured has been permitted by the defendant’s servants to ride upon the railway without paying fare, the railway is liable if the servant was expressly or impliedly authorized to bind the railway by such permission; but, where the regulations of the railway deny to the servant the authority of accepting passengers, the railway is not liable. Conductors in charge of passenger trains have an implied authority to accept persons as passengers thereon, but as freight trains are run by railways for the transportation of freight, not passengers, the servants of the railway, when in charge of such trains, have no implied authority to invite strangers to become passengers thereon, and in the absence of proof of express authority vested in the conductor of a freight train, the acceptance of his invitation to ride thereon does not make a stranger a passenger.” Patterson’s Railway Accident Law, sec. 215, and cases cited.
In McGee v. Railroad, 92 Mo. 208 , though the rules of the company forbade passengers to ride on freight trains, yet this fact was unknown to the plaintiff, and the company ticket agent at Moberly, with the assent of the conductor, directed the plaintiff to board the freight train, and, besides, the rule in question had *326 been virtually abrogated by the company by reason of permitting their freight trains for a long time to carry passengers. But in that cáse express recognition is given to the principle embodied in the following quotation there made: "A person who, without knowing that it is against the rules of the company for passengers to ride upon a freight train, if he pays his fare and is received’by the conductor as a passenger, may be entitled to the rights of a passenger; and such also may be the case where, notwithstanding the rules, it is shown thatpassengers have been habitually carried upon such trains; but, where a person knowing the rules gets upon a freight train, even,with the assent of the conductor, and pays no fare, he can not be regarded as a passenger.” 2 Wood’s Railway Law, pp. 1044, 1045.
The author just cited says elsewhere: "The presumption of law is that persons riding upon trains of a railroad carrier which are palpably not designed for the transportation of persons, are not lawfully there, and if they are permitted to be there by the consent of the carrier’s employees, the presumption is against the authority of the employees to bind the carrier by such consent.” Ibicl., p. 1083.
On the other hand, where a person is actually traveling on a passenger vehicle, and not connected with the service of the carrier, he is presumed to be a passenger and traveling for a consideration. Creed v. Railroad, 86 Pa. St. 139.
There are cases which hold that a person traveling on board of a train, though in violation of the rules of the company, may still recover;- but they proceed upon the theory that such person, not being advised to the contrary, supposed that he was rightfully there as a passenger. Whitehead v. Railroad, 22 Mo. App. 60 ; Lucas v. Railroad Co., 33 Wis. 41 ; Dunn v. Railroad, *327 58 Me. 187 ; Railroad v. Montgomery, 7 Ind. 474 ; Railroad v. Wheeler, 35 Kan. 185 ; S. C., 26 Am. and Eng. R. R. Cases, 173, and cases cited. This was the theory-on which McGee’s case was determined, and in Wagner’s case, supra, this principle finds recognition. 97 Mo. loc. cit. 522, par. 2.
In Wilton v. Railroad, 107 Mass. 108 , the plaintiff, a young girl nine years of age, was, with a number of her young, associates, invited by the driver of a horse car to ride, and they got on the car, and in consequence of the carelessness of the driver she was injured and held entitled to recover, and justly so, because there the driver occupied the position of conductor; the car was exclusively a passenger car, and the driver had an apparent as well as implied authority to admit passengers, and, besides, it does not appear that the plaintiff had any notice of a rule forbidding passengers to ride free; on the contrary, the case is put on the ground that she “accepted the invitation innocently.”' That case is but the type of many similar ones.
In Lucas v. Railroad, supra, Lyon, J., when speaking of Bunn’s case, supra, and Judge Redpield’s comments thereon, draws the correct distinction between cases where a railway company does not permit passengers to travel on any of its freight trains, and cases where such a company permits them thus to travel on some of its freight trains; and that was the case then being discussed by the learned judge in his opinion; for he says: “By making a portion of its freight trains lawful passenger trains, the defendant has, so far as the . public is concerned, apparently given the conductors of all its freight trains authority to carry.passengers.” The case of Railroad v. Wheeler, supra, is similar in facts and principle to the one just cited.
In Eaton v. Railroad, 57 N. Y. 382 , the facts in evidence and the rulings made as shown by the syllabi *328 are these: Plaintiff, being invited by the conductor, got into the caboose of a coal train and rode without paying any fare. An accident occurred, through the negligence of the conductor, whereby plaintiff was injured. Held, the relation of carrier and passenger had not been created, and the company was not held liable. Where a railroad company has divided its business between passenger and freight trains, the conductor of -the latter, though called by the same name, has not the powers of a conductor ip regard to passengers. Notice of his want of power will be implied from the nature and apparent division of the business, and a person claiming to be a passenger on such train has the burden of proof of circumstances to except him from the general presumption.
There was a regulation of the company which forbade passengers to, ride on coal trains; but of this plaintiff had no actual notice, nor was there evidence that passengers either habitually or occasionally had ridden on the caboose. The court in that case held that it was immaterial whether the plaintiff had notice or not of the regulation; that the character of the train was sufficient notification; that the solution of the question at issue was not to be sought in the rules of law appertaining to common carriers; that it must be obtained from the principles of the lato of agency; that the true inquiry was whether the conductor, as an agent of the defendant, had the powfer to take the plaintiff on the train in such a way as to bind the defendant as a carrier to him as a passenger; that an agent in such a ease can not increase his powers by his own acts and that no acts of a conductor of a freight train will bind the company as to carrying passengers, unless the principal in some way assents to it.
The opinion in that case was cordially approved by Judge Redeield in an elaborate note in 13 Am. Law *329 Reg. (N. S.), 672 . Among other things, he said: “We have read the foregoing opinion with great satisfaction, and we doubt not such will be the general sentiment of the profession. * * * There is this difference between cases where fare is paid and where it is not; that, in the former case, the person claiming to be a passenger may, very naturally, be misled, by having paid fare, into the belief that it is done with the concurrence of the company, or, what is the same thing, of the general superintendent; while, on the other hand, if no fare is paid by such person he is virtually notified that such is not the fact, or at all events put upon inquiry in regard to it, which is the same thing in the law. If one is allowed by what is called, not in any precise language, the conductor of any train not a passenger train, whether freight, gravel or construction train, to ride without payment of fare, he is bound to know, from the very nature of the transaction, that it is not by consent of the company, since he can not' suppose, with any plausibility, that the company make a common business of carrying persons upon all or any of their trains, not passenger trains, without pay. And unless it is the authorized business of the train to carry passengers in emergencies, the conductor can have no general authority to carry them at all. And if he had any special authority, in the particular case, or from his general authority as to particular emergencies, it must be specially proved by the person claiming its existence. * * * The fact that the person carried was ignorant of the regulation of the company, prohibiting passengers being carried upon other than passenger trains, does not seem to us to possess any force whatever. Every one is bound to take notice how business is transacted by railway companies, and to know that, ordinarily, passengers are carried, in passenger carriages, whether exclusively *330 forming passenger trains, or attached to freight trains, or mixed trains. And he is also bound to know, that if passengers are carried on other trains, it is by special dispensation, as an exceptional matter, and he must see to it, that he is able to show such dispensation and that his case comes within it, and to know that the conductor of a freight train has no general agency, extending to the carrying of passengers, in any mode, and that he has no excuse for depending upon his agency in any such matter, unless he knows and is able to prove that it has been specially conferred, over and above his general authority resulting from his employment.”
In Railroad v. Brooks, 81 Ill. 245 , the-plaintiff and her husband got aboard of defendant’s train without having purchased tickets as required by the rules of the company, and with the design to induce the conductor to carry them without' paying fare; to this the conductor agreed. While en route, the husband was killed during a collision. In that case it was held that the deceased, ' in the circumstances stated, did not occupy the relation of a passenger, and no recovery could be had for the mere negligence of the .company. In that case Judge Walkeb says: “It is manifest that if a person were stealthily, and wholly without the knowledge of any of the employees of the company, to get upon a train and secrete himself, for the purpose of passing from one place to another, he could not recover if injured. In such a case his wrongful act would bar him from all right to compensation. Then, does the act of the person who knowingiy induces the conductor to violate a rule of the company, and prevails upon him to disregard his obligations to fidelity to his employer, to "accomplish the same purpose, occupy a different position, or is he entitled to any more rights?” *331 An author already quoted says of this ease, that it lays down the “true.rule.” 2 Wood’s R’y Law, p.'1038.
The facts in McVeety v. Railroad, 45 Minn. 268 ; 47 Am. and Eng. R. R. Cases, 471, were these: Without having bought a ticket, the plaintiff entered the caboose of a freight train and obtained the consent of the conductor to ride without paying fare, though knowing at the time that the conductor had no authority so to do. Collins, J., in commenting on these facts said: “It is probable that there is authority for the statement that when the conductor of a train disobeys the rules of the company for which he is acting, in regard to the collection of fare from a traveler, or in respect to some other matters, such, for instance, as permitting him upon a forbidden part of the train, or upon a train not allowed to carry passengers, the traveler has all the rights of a passenger if he has no notice of the rule, express or implied, or of the conductor’s disobedience. But if a person solicits and secures free transportation,- or if he rides upon a part of the train from which passengers are excluded, or takes passage upon a train not allowed to carry passengers, knowing that his act is against the rules of the carrier and in permitting it the conductor is disobedient, he is guilty of a fraud, and not entitled to a passenger’s rights.”
In Smith v. Railroad, 124 Ind. 395 , it is held that “a person who goes aboard a freight train by the invitation and permission of the conductor can not be regarded as a passenger, where it does not appear that the company either by usage or by its rules and regulations permits passeugers on its freight trains.”
In another case the plaintiff, cognizant of the rule that passengers were not allowed- to ride on freight trains', went aboard of one and was injured, and held not entitled to recover. Railroad v. Moore, 49 Tex. 31 ; *332 30 Am. Rep. 98 . It is there said: “It may be true, where a railroad company habitually permits passengers to travel on its freight trains, notwithstanding it may by regulation prohibit it, that the company will incur the same responsibility to such passengers as if they were on the regular passenger cars. But when it is shown that the regulations of the company absolutely forbid passengers riding on freight trains, and where there are no cars attached to such trains except those ordinarily accompanying trains exclusively for freight, or such as, by their appearance and manner in which they are fitted up, could not be properly regarded as inviting passengers into the train, the burden of proving that the party injured was justified in going upon such train as a passenger, properly devolves upon those who sue for damages resulting from injuries sustained by him while on such train.”
This case arose in Massachusetts: The plaintiff was invited to ride upon a freight train by the conductor, and the plaintiff accepted that invitation, knowing then the train was not allowed to carry passengers, and that it was contrary to the conductor’s instructions and it was ruled the plaintiff could not recover for injuries received in a collision and Eaton’s case, supra, is approvingly cited. In speaking of these circumstances,. Judge Devens says: “In the case at bar the plaintiff was not on a passenger train, and he was riding in the caboose of a freight train, in a place which he could not have failed to know was not intended or adapted for the use of. passengers, but solely for the accommodation of the defendant’s employees engaged in managing the train. Even if, therefore, the plaintiff had an invitation from the conductor of the freight train, he could not have supposed that the conductor was acting within the general scope of his employment, or that, independently of any rules *333 of the corporation, the conductor had any authority to extend such an invitation.” Powers v. Railroad, 153 Mass. 188 .
In Alabama the plaintiff desiring to go on a limited train to a certain point on the defendant’s road, and being refused because the train in question did not stop at that point, applied to the conductor who instructed her to- get upon the limited train without a ticket and he would let her off at the place of her destination, but being carried beyond her station, brought suit, and it was held she could not recover. Stone, C. J., in delivering the opinion of the court, said: “We feel bound to hold that Mrs. Carmichael had notice that it was against the regulations of the railroad company for that train to stop, either at Jonesboro or Bessemer, whichever place she named as her destination, either to take on or put off a passenger. So she was not only not deceived in the premises, but it was at her instance that the conductor agreed to violate orders, and to stop and put her off at a place at which the regulations did not allow him to stop for such purpose. It needs scarcely be said that when one dealing with an agent, knowingly induces such agent to transcend his authority he can maintain no action against the principal for a. breach • of an agreement thus entered into by the agent in excess of his authority.” Railroad v. Carmichael, 8 S. Rep. 87.
In Railroad v. Campbell, 76 Tex. 174 ; S. C., 41 Am. and Eng. R. R. Cases, 100, Campbell applied to the conductor of a freight train for permission to ride, and being refused, asked the engineer for permission to ride on the engine with him., and was again refused, but as the caboose of the train was standing at the depot, the plaintiff took a seat in the caboose; but a collision occurring, he was injured, but he was held not liable to recover on the ground that he was not a *334 passenger but was unlawfully on the train; and this was so ruled, notwithstanding there was evidence that after he met the conductor, a man on the platform with a lantern in his hand told him he was in charge of the train and gave him permission to get on. The court in that case said: i(If the conductor told the plaintiff that he was not authorized or permitted to carry passengers, and still he entered the car with the knowledge and consent of the conductor, he would not * * . * have been a lawful passenger thereon. Because, from the evidence in the case, he must have known the fact that the conductor possessed no authority to permit him to ride, and that it was in violation of the rules of the company if he became a passenger on the train.”
Because of the importance of the principle here involved, these quotations from test-books and adjudicated cases have been thus largely made. These quotations might be greatly multiplied; but it is unnecessary to encumber this 'opinion with them; other cases announcing the same principle may be found collated in the briefs of counsel. From these authorities this principle is clearly deducible:
That the conductor of a freight train can not create the relation of passenger and common carrier between his principal, the company, and the applicant for passage, unless such conductor has authority so to do; that this authorityhnay be either real or apparent, and if the latter, the applicant must be ignorant that the authority thus apparent is not real; and that notwithstanding such apparent authority if the applicant be advised that the authority is merely simulated by reason of being in violation- of the rules of the company, he can not become a passenger either as to passage, privileges or protection; and this because of the lack of power in the conductor to create any con *335 traetual relation between Ms principal and the person seeking transit.
The initial question in all such cases is the simple one of agency. If the conductor has been by his principal held out as possessing power to make such a contract, or has apparently been clothed with the habiliments of such authority, as, ex. gr., by reason of same freight trains being allowed to carry passengers and others being forbidden so to do, and the public being unable to distinguish by their general appearance such passenger-carrying from the nonpassengercarrying trains; in that event a party not being able to distinguish one kind of train from the other, and unaware of any rule of the company forbidding it, may in good faith go on such nonpassenger-cárrying freight train, pay his fare and enjoy all the privileges and protection pertaining to the position of passenger.
The principle here announced is but in conformity to one of the most familiar doctrine’s of the law of agency, which remains immutably the same, no matter what the varied circumstances or conditions in which it may be applied. Applying that principle to the facts before us, how stands the case at bar!
The facts in evidence show that the mixed trains, that is, freight and passenger trains combined, ran every day in the week except Sunday, “that no Sunday trains were run on that branch that carried passengers,” and that this fact, set forth as it was in the time table of the company, published in the daily press and was generally known in Jefferson City; a matter of “general notoriety.” On the other hand, the work, construction or supply trains, as they were variously termed, had no time cards, no regular hours for running, and only ran when ordered to do so by the road master. The daily trains left each week day morning at 6:30 a. m. The work train left the depot on the Sunday in question at *336 about 9 a. m. The regulations on the “Lebanon Branch” forbade the conductor from carrying passengers on those construction trains. This is, as already seen, established by the testimony in a most satisfactory manner. This feature in the evidence was not developed at the first trial, nor that Berry was or could have been informed that his going on the train was contrary to any regulation , of the company or to any instruction to the conductor of such train. See Wagner’s case, 97 Mo. loc. cit. 521.
That Wagner had notice of such regulation plainly appeared at the last trial of this cause. He went to Dewey on Saturday and asked him if a train was going out on Sunday, and being told there was, he asked permission to gó out on it, which was refused on the express ground that such trains “were not allowed to carry passengers.” Indeed, the very fact that he went to Dewey, the road master, on Saturday and asked permission to go out on the construction train on Sunday, shows that he, at least, understood there was such a regulation, or else why did he seek permission where none was required; where there were no regulations or prohibitions in the way?
But did Berry and Zuendt have any notice of such regulation? The general notoriety of the fact in any given locality is some evidence of notice of that fact. 1 Greenleaf on Evidence [14 Ed.], sec. 138, note. Especially so when in addition thereto it finds expression by publication in the daily press. But notice further: Wagner went to secure permission, not only for himself, but as well for Zuendt and Berry, whom he said were going with him.
Zuendt was Wagner’s son-in-law and they were partners in business as grocers. What relationship, if any, existed between Wagner and Berry is not shown; but Mahan testified that “they lived near together,” *337 and “were good friends.” Wagner’s purpose, then, in going to see Dewey was twofold: First, to ascertain if a construction train was going out Sunday; second, to obtain permission for himself and the two others to go with nim on the train.
Now, when Wagner returned from his errand to Dewey, it would be entirely out of the ordinary course of human affairs and “contrary to the experience of common life,” if he failed to tell them or they failed to inquire the result of that errand. It is, therefore, the most natural thing in the world to believe that such information was communicated and that Wagner’s knowledge, to wit, that a work train would go out on the next day, that it was not allowed to carry passengers, and that they could not ride on it,' became also the knowledge of his companions. Relationship or close intimacies coupled with opportunity for inquiry and the naturalness of such inquiry, furnish evidence of notice. Trefts v. King, 18 Pa. St. 157; Wade on Notice [2 Ed.], sec. 25; Leavitt v. LaForce, 71 Mo. 353 .
Here there were not only relationship and close intimacy and opportunity for a most obvious and natural inquiry, but a reason and a motive for such inquiry. Again, Wagner, in going on the errand he did, may well be regarded in so doing, as the agent of his companions, and presumed to have communicated to them vj-hat he had learned. Gardner v. Railroad, 51 Com. loc. cit. 151. The fact that Wagner’s errand concerned a trip for pleasure rather than for business, can not affect the principle involved nor alter the effect of notice to him.
But not only is it fairly and legally inferable that Wagner was the conduit of notification to his companions, but a fresh and abundant supply of the comrhodity of notice' was furnished them all the next *338 morning when they went to the depot and got aboard of the combination car, and that being derailed at Dulle’s Mill, transferred themselves to, and ensconced themselves in, a box car loaded with railroad iron; for there the conductor told them he could not possibly carry them; told them to get out; requested them to get out. The very nature of that box car and its contents was notice that .it was not intended for passengers and consequently that the conductor had no authority to permit them to ride on the train. Nor was there a particle of evidence that a single passenger had ever before ridden on one of these construction trains taken out on Sunday. That Berry did not regard himself as a passenger is shown by the further fact that he- neither tendered, nor did the conductor demand, any fare, nor was such a thing thought of. Berry was certainly not in the car by the invitation or with the consent of the conductor and it is difficult to see how, in such circumstances, and under the authorities cited, any contractual relation could be created between the defendant company as carrier and Berry as passenger, because he had notice of the regulations of the company, that he was forbidden to ride on the train; the character of the car, its contents and the uses in which it was employed also gave him notice; and he intended to ride free and did ride free. The very fact that he expected to ride free, and did ride free was, of itself, virtual notice, or its legal equivalent, of the fact that such train was not allowed to carry passengers, and that the conductor had no authority to bind his principal to any such, so to speak, gratuitous contract. See note of Judge Redbield’s 13 Am. Law Reg. (N. S.), 672 , supra.
It would seem that such a case lacks every constituent element which enters into the formation of, and meaning of, the term “passengerAnd it is wholly *339 immaterial whether the conductor manifested his desire for Berry to vacate the car by a polite request or by a peremptory order. Dunn v. Railroad, 58 Me. 187 ; Higley v. Gilmer, 3 Mont. 90 ; Ashbrook v. Railroad, 18 Mo. App. 290 .
In concluding this paragraph of the opinion, it only remains to say, that, guided by the authorities cited, and by sound reason independent of authority, it should be ruled that Berry was not a passenger, nor a person who in the circumstances stated was entitled to rights as such.
2. The second question propounded is next in order for consideration'.
If Berry is not to be regarded as a passenger, then it is unimportant whether the defendant was negligent or not, unless the negligence rose to such a height as justly to be denominated gross, and its product of injury willful, reckless or wanton. 2 Wood’s R’y Law, p. 1045; Railroad v. Beggs, 85 Ill. 80 ; 2 Shear. & Redf. on Neg., sec. 489; Railroad v. Meacham, 19 S. W. Rep. (Tenn.) 232; 2 Rorer on Railroads, p. 1113, sec. 19, and other cases heretofore cited. That the defendant was guilty of such reckless conduct as made the resultant injury wanton or willful, is not established by the evidence. It is unnecessary to discuss it in detail as in substance it is set forth very fully in the accompanying statement; and besides no witness pretends to state what was the cause of the unfortunate accident. The roadbed was an old one, well settled, properly aligned, and in first-class condition and only apparently new by reason of surface dressing and widening in some places. The track was straight at the point of the accident, for the distance of over a quarter of a mile in each direction, if the correctness of the map prepared by a skilled engineer, which was offered in evidence without objection, and the testi *340 mony of several witnesses thoroughly familiar with the locality is to prevail over the testimony of a river engineer, who had not run a locomotive engine since 1864 and then only for a short time, who could not come nearer to the weight of the smallest engine than twenty tons, nor to the largest than forty tons, and who pretended by a mere glance of his eye to determine that for five hundred yards the track at the scene of the accident curved for two feet, and that for one hundred and fifty feet west of the wreck the track had an extra curve of six inches; evidently mistaking in the latter instance, as shown by the evidence, the effect of the displacement of the track caused by the then recent derailment.
When Wagner’s case was here before, the defendant company was held guilty of negligence and if Berry is to be viewed as a passenger, then the high degree of care which the law exacts at the hands of a carrier towards a person occupying that relation, would raise a disputable presumption of negligence from the fact that the train left the rails. 2 Wood’s R’y Law, p. 1095; Beach on Contrib. Neg. [2 Ed.], sec. 144.
3.' But it may, for the purposes of this investigation, be conceded that Berry was a passenger, the defendant a common carrier and negligent, and still the third question propounded remains to be solved, and that is, was he guilty of contributory negligence.
It will be remembered that on the return trip frorh Russellville, Berry and his companions improvised a. temporary seat on the flat car next to the engine, by placing a narrow board or plank lengthwise of that car, and resting the ends on two empty nail kegs. These materials were furnished by Vaughan, the conductor, who testified that he requested Berry and others to throw them back into the box car and make a seat of “them; telling them at the same time, when *341 they expressed a preference to ride on the flat ear in order to see the country, that it was more comfortable, safer and better in the box car, and that he would rather they would ride in there; but they expressed a determination to ride on the flat car, and did so. There is no contradiction of this affirmative testimony of Yaughan; and, of course, the negative testimony of others who did not see Yaughan or hear what he said at the time he handed up the plank and kegs to Berry and others, can not, on a familiar principle, be allowed to countervail or overthrow the affirmative statements of the conductor.
On a former occasion it did not appear, as it does now in the present record, that Yaughan warned the parties of their dangerous position on the flat car. 97 Mo. loc cit. 523.
It is in evidence that the car thus chosen by the deceased and his companions for their own pleasure was one such as its name'indicates, without side or end boards, or, indeed, any other obstruction to prevent a person thereon from being cast overboard; a perfectly level surface, without guard rail, side piece, end piece, cover, or even so much as a single stake to which a person could for safety cling, if some sudden jar or oscillation of the car should demand it. And when, upon such a level surfaced car, two empty and rickety nail kegs are made to stand on end, and a plank laid across them, can it be doubted by any sentient being that a person seated on such a frail and toppling superstructure, and the train then put in motion would be in a position to the last degree perilous?
This question furnishes its own conclusive answer. What is danger? It is “exposure to injury.” Webster’s International Dictionary. To say that Berry was not in a position of danger, was not exposed to injury, until the derailment of the train occurred, is *342 tantamount to saying that one who with foolhardy rashness raises the hammer of a musket with his toe, and then blows in its muzzle to see if it is loaded, is in no danger until his toe slips, the hammer falls and the gun is discharged! And the evidence here and the fatal result show that the latter hazardous experiment is only a trifle less perilous than the former.
If at such a critical juncture res does not ipsa loquitur, it should forever after hold its peace. Such a position needs no note of warning, no monition of danger, no placard of impending peril.
The question then recurs: Was Berry, by placing himself in such a dangerous position, guilty of contributory negligence, and did that negligence concur and co-operate in causing his death? That he would not have been injured had he gone into the box car as directed by the conductor appears quite cleárly from the evidence.
Some cases and authorities will now be instanced illustrating the point in hand: Thus, in Harris v. Railroad, 89 Mo. 233 , a passenger on a freight train, while in the caboose, left his chair and stood up in the car, and while thus standing was thrown down on the floor and injured by the backing of the train, when he would not have been injured had he kept his seat; and by the exercise of ordinary care he could have known that the train had stopped to do switching, and that a part of the train would be likely to be backed against the part to which the caboose was attached, and would probably produce a concussion in the caboose, and thereupon it was ruled that the discomforts and dangers of travel being greater on freight than on regular passenger trains, made a higher degree of care requisite at his hands than that ordinarily required of other passengers, and that in the circumstances stated, his contributory negligence barred him of any recovery. *343 Was Harris in danger and Berry not? Was Harris lacking in the exercise of ordinary care and Berry not? Was Harris guilty of contributory negligence and Berry not? Harris was a passenger in the fullest sense of the term; Berry never was a passenger. These questions at once suggest themselves when the facts in the two cases are conned and contrasted.
This case arose in Q-eorgia: The plaintiff was voluntarily on a passenger train when he was injured, by invitation of the conductor, which Invitation was given at his own request, he having asked the conductor for permission to ride, and the conductor having granted it. He paid no fare and none was expected of him. He selected an open flat car with benches across it upon which to ride rather than in a passenger coach. While riding upon this open car he was injured. It was held that he was not entitled to recover for the injury, and, in so holding, Judge Hall says: “He selected the car on which he rode; it was his own choice that he was upon an open flat car, rather than in the passenger coach; * * * he rode there for his own special accommodation, and was entitled to look for only such security as that mode of conveyance was reasonably expected to afford. He voluntarily incurred the injury of which he complains.'- * * * By the exercise of ordinary care he could.have avoided the consequence to himself, and is therefore entitled to no recompense even if the defendant was negligent. * * * This would be true, even if he were regarded as a passenger, entitled to all the rights growing out of that relation^ It is doubtful if he was, under the circumstances, a passenger at all in the full legal sense of that term.” Higgins v. Railroad, 73 Ga. 149 .
In Virginia,, the facts in a case were these: In August, 1881, at B., F. took passage on defendant’s freight train for M. Before leaving B. he drank beer, *344 and at A. he drank whisky. In the caboose there were, along its sides, seats for half a dozen passengers, where they would be safe from falling out of the open side doors. But F. voluntarily sat on a light, loose, chair, known to him to be the conductor’s seat, and placed against a box that was within three inches of the open side door of the caboose. The train had moved slowly from B. to A., and was half an hour behind time, but after leaving A. ran thirty-five miles an hour down grade, around short curves. Whilst F. -was so sitting in the chair, leaning back against the side of said open door, with his legs crossed, and whilst the train was so running between A. and M., the cars ran together so hard as to cause F. to fall out of said open door, whereby he was much, injured. Held, F. was guilty of contributory negligence, but for which the injury would not have occurred, and hence is, not entitled to recover. Railroad v. Ferguson, 79 Va. 241 .
In another case which arose in that state, Lacy, J., said: “It seems to be the better rule, both upon authority and upon reason, that the passenger being endowed with intelligence which enables him to foresee and to avoid danger, the exercise of at least ordinary prudence is required on his part to escape it; and if, by his failure to exercise these faculties for his own preservation, a misfortune befall him, though the carrier may have been in fault, it will be attributed to his own carlessness and inattention, and the responsibility will not be thrown on the carrier.” Dun v. Railroad, 78 Va. 645 , quoted in Railroad v. Ferguson, 79 Va. 247 .
In Railroad v. Rutherford, 29 Ind. 82 , it is said that the railroad company is not bound to imprison a passenger to prevent him from exposing himself to peril.
When treating of injuries resulting from a passenger putting himself in a dangerous position, an *345 author, already quoted, observes: “Railroad companies are only bound to exercise due care that a passenger is not injured through their fault, and are not required to exercise such a supervision over him as absolutely prevents his being injured by his own fault. In other words, if a passenger voluntarily puts himself in a dangerous position he can not claim indemnity from the company.” 2 Wood’s Railway Law, pp. 1103, 1104.
Commenting on the relation existing between carrier and passenger, that great jurist and just man Chief Justice Black, of Pennsylvania, in his felicitous and terse style says of railroad companies: “They are not insurers against the perils to which a passenger may expose himself by his own rashness or folly. One who inflicts a wound upon his own body must abide the suffering and the loss, whether he does it in or out of a railroad car. It has been a rule of law from time immemorial, and is not likely to be changed in all time to come, that there can be no recovery for an injury caused by the mutual default of both parties. When it can be shown that it would not have happened, except for the culpable negligence of the party injured concurring with that of the other party, no action can be maintained. A railroad company is not liable to a passenger for an accident which the passenger might have prevented by ordinary attention to his own safety, even though the agents in charge of the train are also remiss in their duty.” Railroad v. Aspell, 23 Pa. St. 147.
These crisp sentences, embodying, as they do, the vital principle of the law of contributory negligence, have been, as they deserve to be, widely 'quoted, and will be in every jurisdiction, except where that vital principle has been so warped, twisted and distorted, either through ignorance or design, that its most familiar friend would not be able to recognize it on the street.
In Railroad v. Jones, 95 U. S. 439 , Justice Swaxne *346 said: “The plaintiff had been warned against riding on the pilot, and forbidden to do so. It was next to the cowcatcher, and obviously a place of peril, especially in case of collision. There was room for him in the box car. He should have taken his place there. He could have gone into the box car in as little, if not less, time than it took to climb to the pilot. The knowledge, assent, or direction of the company’s agents as to what he did is immaterial. If told to get on anywhere, that the train was late, and that he must hurry, this was no justification for taking such a risk. As well might he have obeyed a suggestion to ride on the cowcatcher, or put himself on the track before the advancing wheels of the locomotive. The company, though bound to a high degree of care, did not insure his safety. He was not an infant nor non compos. The liability of the company was conditioned upon the exercise of reasonable and proper care and caution on his part. Without the latter, the former could not arise. He and another who rode beside him were the only persons hurt upon the train. All those in the box car, where he should have been, were uninjured. He would have escaped also if he had been there. His injury was due to his own recklessness and folly. He was himself the author of his misfortune. This is shown with as near an approach to a demonstration as anything short of mathematics will permit.” It is needless to add other citations.
Summarizing the conclusions reached, it should be held: First. That plaintiff was not in any sense a passenger, nor entitled to rights as such. Second. That the defendant company was not guilty of such gross negligence as to amount to wanton or willful injury. Third. That, if the defendant was negligent, the contributory negligence of the deceased was such as to prevent any recovery and that defendant’s demurrer to the evidence should have prevailed.
G-antt and Burg-ess, JJ., concur.