
    The Baltimore & Ohio Southwestern Ry. Co. v. Cox, Administratrix.
    
      Action for injury by negligence — Absence of willfulness — Defendant not bound, to exercise care toward injured, when — Conductor permitting person to ride on freight train — Does not bind company, when.
    
    1. An action to recover for an injury occasioned by negligence, the element of willfulness being absent, will not lie unless there exists between the defendant and the person injured a relation out of which there arises a duty of the former to exercise care toward the latter.
    2. A conductor in charge of a train designed exclusively for the carriage of freight, and operating under rules which forbid the carriage of passengers thereon, cannot, by consenting that a person may ride on such train, impose upon the company the duty of exercising toward him the care which it owes to a passenger.
    (Decided May 13, 1902.)
    Error to the Circuit Court of Ross county.
    Mrs. Cox, as administratrix, brought suit in the court of common pleas to recover from the railway company damages for the death of her intestate which was alleged, to have been caused by the negligence of the company. In her petition she alleged that on January 4, 1896, her intestate was employed by the company as a locomotive fireman and .was riding by its order on one of its freight trains from Mineral City, where he had been employed prior to that time, to Chillicothe; that the train, having reached Schooley’s Station, stopped on the siding to permit the passage in the opposite direction of a passenger train, when he left the caboose in which he had been riding and went forward to the engine to talk to the engineer about the employment of the decedent and, at the request of the engineer, climbed- upon the engine; that while he was so upon the engine engaged in conversation with the engineer, the said passenger train approaching at a high rate of speed was, by the negligence of the company, run upon said siding, colliding with said engine and causing the instant death of said John H. Cox. The petition also set out the names of the next of kin of said Cox for whose benefit the recovery was sought.
    In its answer the company admitted ■ that the deceased was killed while upon its locomotive which was standing upon a side-track at Schooley’s, by a collision with a passenger train which was run upon the siding in consequence of the fact that one of its employes, a brakeman who was acting as a switchman, had failed to disconnect the side-track on which said freight train stood from the main track on which said passenger train was approaching, of which neglect the company had no knowledge. It denied all other allegations of the petition and alleged that decedent was upon said freight train and the locomotive connected therewith without the knowledge or permission of the company and was not there upon any business of or connected with it and was wholly without right to be there.
    Upon the trial the plaintiff while introducing a mass of evidence having no relation to any issue in the case also introduced evidence tending to establish the following facts: The accident was due to the negligence of a brákeman who opened the switch to permit an engine to pass from the siding on to the main track, and did not close it. The decedent had been occasionally employed by the company as a fireman for several years, but had not been in its service after the 27th day of the month preceding the accident. In the meantime he had been visiting friends at Mineral City and on the day of the accident he boarded the freight train, whose conductor was his friend, his purpose being to ride to Chillicothe to look for further employment with the company; and that was the purpose of his interview with the engineer. He had no pass; did not pay fare and did not intend to. The rules of the company were introduced showing that freight trains, unless running as accommodation trains, were not permitted to carry passengers except upon special order. This train was not running as an accommodation train and there was no special order. Another, rule forbade engineers to permit any but employes to ride on their locomotives. The train on which the decedent was riding was composed wholly of freight cars with a caboose attached.
    At the conclusion of the plaintiff’s evidence the trial judge directed a verdict for the company. In the circuit court a judgment which had been rendered in the common pleas upon the verdict so directed was reversed and the cause was remanded to the court of common pleas for a neAV trial.
    
      Mr. Robert E. Samill; Mr. Edward Barton and Mr. Willis H. Wiggins, for plaintiff in error.
    Under the circumstances, what duty at that time did the railway company owe to John H. Cox at that place on the locomotive engine of a freight train? Railway Co. v. Bingham, 29 Ohio St., 369; Elster v. Springfield, 49 Ohio St., 82; Letts v. Kessler, 54 Ohio St., 73, 85; Sweeny v. Railroad Co., 10 Allen, 368.
    
      Carelton v. Iron & Steel Co., 99 Mass., 216. Here permission is neither inducement, allurement nor enticement.
    
      In accepting the benefits of a license one assumes all the risks of danger incident thereto except those caused by the willful negligence of affirmative acts of the licensor. The owner of land and buildings assumes no duty to one who is on his premises by permission only as a mere licensee except that he will refrain from wailful or affirmative acts. Gibson v. Leonard, 143 Ill., 182; 32 N. E. Rep., 182; Larmore v. Iron Co., 101 N. Y., 390.
    Willfulness or wailful negligence, as it is sometimes called, must be pleaded in a petition and proved in order for a plaintiff to recover for it. There can be no recovery for wailful negligence under a mere averment of negligence. Shearman & Redfield on Negligence (5 ed.), Sections 5, 7, 8, 19; Beach on Contributory Neg. (2 ed.), Sections 62-64 inclusive, and notes; 14 Enc. of Pl. & Pr., 338 and notes, also p. 345 and note 1; Railway Co. v. Kingsley, 177 Ill., 558; 52 N. E. Rep., 931; Railway Co. v. Eaton, 53 Ind., 307; O’Brien v. Loomis, 43 Mo. App., 29; Driscoll v. Railway Co., 1 Circ. Dec., 274; 1 C. C. R., 493; Kerwhaker v. Railway Co., 3 Ohio St., 172; Darling v. Williams, 35 Ohio St., 58; Barholt v. Wright, 45 Ohio St., 177; Krause v. Morgan, 53 Ohio St., 26, 36; Telegraph Co. v. Griswold, 37 Ohio St., 301; Meek v. Pennsylvania Co., 38 Ohio St., 632.
    The undisputed evidence showed that deceased had no right on the train or engine, but w7as a mere trespasser, contrary to the rules of the railway company, of which he had full knowdedge. He w7as not an employe nor connected with the service of the railway company at that time. Railway Co. v. O’Brien, 2 Circ. Dec., 681; 4 C. C. R., 515; affirmed by Supreme Court, 25 Bull., 88; Railway Co. v. Morley, 2 Circ. Dec., 706; 4 C. C. R., 559; Railway Co. v. Wetmore, 19 Ohio St., 110; Files v. Railway Co., 149 Mass., 204; 21 N. E. Rep., 311; Railroad Co. v. Roach, 83 Va., 375; 5 S. E. Rep., 175; Driscoll v. Railway Co.. 1 Circ. Dec., 274; 1 C. C. R., 493; Railway Co. v. Norway, 4 Circ. Dec., 674; 7 C. C. R., 449; Railway Co v. Depew, 40 Ohio St., 121; Railway Co. v. Graham, 95 Ind., 286; Morrissey v. Railway Co., 126 Mass., 380.
    A railroad company may, as to persons to whom it owes no common law duty of safe transportation, contract against liability to such persons for injuries, resulting from its own negligence. Payne v. Railway Co., 62 N. E. Rep., 472; Russell v. Railway Co., 61 N. E. Rep., 678; Railway Co. v. Voight, 13 O. F. D., 145; 176 U. S., 498.
    Railroad companies as common carriers of passengers are charged with a high degree of care, and may, therefore, in the interest of passengers as well as themselves and the public, make reasonable rules for the protection of passengers, and a party who willfully violates a known rule intended for his safety, and is injured in consequence of such violation can not recover. The rule is the same as to employes. Railway Co. v. Langdon, 92 Pa. St., 21; Downey v. Railway Co., 28 W. Va., 732; Woods v. Jones, 34 La. An., 1086; Railway Co. v. Lindley, 42 Kan., 714; Warden v. Railway Co., 94 Ala., 277; Aufdenberg v. Railway Co., 132 Mo., 565; Railway Co. v. Clemmons, 55 Tex., 88; Posey v. Railway Co., 102 Fed. Rep., 236 (42 C. C. A., 293) ; Lemasters v. Railway Co., 131 Cal., 105 Railway Co. v. Boyd, 6 Tex. Civ. App., 205.
    Freight trains are not usually intended for the carriage o*f passengers, and one who gets upon such a train to be carried, without paying fare, is prima facie not a passenger, although he rides with the consent of the conductor, and if he is injured by reason of the negligence of the railroad company, it is not liable. Railway Co. v. Black, 87 Tex., 160; Railway Co. v. White, 34 S. W. Rep., 1042 (not officially reported); Railway Co. v. Hanna, 58 S. W. Rep., 548; McVeety v. Railway Co., 45 Minn., 268; Alward v. Oakes (1895), 63 Minn., 190; Railway Co. v. Hailey, 94 Tenn., 383; Railroad Co. v. Bogle, 101 Tenn., 40; Flower v. Railway Co., 69 Pa. St., 210; Eaton v. Railway Co., 57 N. Y., 382; Powers v. Railway Co., 153 Mass., 188; Files v. Railway Co., 149 Mass., 204; Powell v. Railway Co., 8 So. Rep., 738 (not officially reported) ; Smith v. Railway Co., 124 Ind., 394; Railway Co. v. Barnes, 137 Ind., 306; Menaugh v. Railway Co., 157 Ind.,-; s. c., 60 N. E. Rep., 694; Railway Co. v. Griffith, 63 Ark., 491: McCauley v. Railway Co., 93 Ala., 356; Cooper v. Railway Co., 136 Ind., 366; Springer v. Byram, 137 Ind., 15; Stalcup v. Railway Co., 16 Ind. App., 584; Railway Co. v. Roach, 83 Va., 375; Morris v. Brown, 111 N. Y., 318; Railway Co. v. Best, 169 Ill., 301; Purple v. Railway Co., 114 Fed. Rep., 123.
    Even if the deceased may have had the right to ride in the caboose, he was not there when he was hurt; he had no business on the engine. Eaton v. Railway Co., 57 N. Y., 382; Coyle v. Railway Co., 155 Ind., 429.
    If deceased was an employe the fellow-servant rule applies. If not an employe there is a fatal variance.
    Recent decisions have made it clear that a railroad company may relieve itself from liability for negligence as to parties riding upon its trains, but whom it is not obliged to carry. One who is riding upon a free pass given him as a mere gratuity, and which contains a provision exempting the company from negligence, can not recover, even although he establishes negligence. Payne v. Railway Co., 62 N. E. Rep., 472.
    
      So, since a railway company is under no legal duty to carry employes of sleeping-car companies, it is held that a contract specifically releasing it from all liability for negligence towards such an employe riding in a sleeping-car attached to one of the railway company’s trains, is valid. Russell v. Railway Co., 61 N. E. Rep., 678.
    So, a railroad company may by contract relieve itself from liability for injuries to an express messenger upon its train which result from its negligence, the reason being that it is under no obligation to carry express messengers. Powers v. Railway Co., 153 Mass., 188; Wilton v. Railroad Co., 107 Mass., 108; Healey v. Railway Co., 28 Ohio St., 23.
    It may be questioned whether the conductor had any more right to invest him with the rights of a licensee than with those of a passenger. At all events, if the plaintiff was on the defendant’s train simply - by the license of the conductor, he was there under such circumstances that the defendant was not responsible to him for any injury which occurred to him in consequence of the collision. Flower v. Railroad Co., 69 Pa. St., 210; Morris v. Brown, 111 N. Y., 318; Powell v. Railway Co., 8 So. Rep., 738; Alward v. Oakes, 63 Minn., 190; Railroad Co. v. Bogle, 101 Tenn., 407; Posey v. Railway Co., 102 Fed. Rep., 236; Lemasters v. Railway Co., 131 Cal., 105.
    It is said in the brief of counsel that Cox was not “riding” on the engine, but only sitting there. That we submit is nothing but a quibble to which there is a corresponding. Railway Co. v. Jones, 95 U. S., 439; Railway Co. v. Lane, 83 Ill., 48; Hickey v. Railway Co., 14 Allen, 429; Railway Co. v. Lindley, 42 Kan., 714.
    
      This is not a case of an employe. Cox had not been in the employ of the company since December 27th. He was not directed to go to Chillicothe. It was not in the line of his duty to do so, and if it had been, he had no business on a freight train. Wolsey v. Railroad Co., 33 Ohio St., 227; Railway Co. v. Litz, 7 Circ. Dec., 282; 18 C. C. R., 653; Railway Co. v. Ward, 61 Fed. Rep., 927; Railway Co. v. Barry, 84 Fed. Rep., 944; Railway Co. v. Boyd, 6 Tex. Civ. App., 205.
    But apart from the statute, the engineer of one train and the conductor of another are fellow-servants. Railway Co. v. Devinney, 17 Ohio St., 197.
    This being the rule it was incumbent upon the plaintiff to bring her case within one of the exceptions made by the statute [Act of April 2, 1890; 87 Ohio Laws, 149). This she wholly failed to do, because (a) Hendershot, the conductor at fault, would not have been Cox’s conductor. Had he gotten Fitzsimmons’ run he would have had Fitzsimmons’ conductor, who was Dixon, (b) The burden rested upon plaintiff to show that deceased would have been one of those who, in the words of the statute, “have no power to direct or control in the branch or department in which they are employed.” (87 Ohio Laws, 150, Sec. 3.) There was no evidence to that effect. (c) In the absence of evidence upon the subject, the presumption is that an engineer has power to direct and control his fireman. Railroad Co. v. Margrat, 51 Ohio St., 130; Railway Co. v. Baugh, 7 O. F. D., 606; 149 U. S., 368.
    
      Mr. John C. Entrekin and Mr. John T. Phillips, for defendant in error.
    The railroad company admitted in open court that Hendershot, the conductor of the wild train, had no business to leave the switch open; this was an admission of negligence on the part of the company because Hendershot was an employe of the company; he had charge of the train, and the evidence showed that he had charge of both the engineer and fireman on that train; therefore, even if the question of fellow servants was in the case, which it is not, his negligence would have bound the company because he was a superior 19 Cox, who was only fireman when employed by the company. The question, however, of fellow servant does not arise, for the reason that Cox at the time was not in the actual employ of the company and therefore had all the rights of third persons against the company to be protected from the active negligence of the company or its agents and employes. He was entitled to be thus protected, Avhether he was a trespasser, or whether he was a passenger upon that train, or whether he was a mere licensee. He was on this train by the consent of the conductor in charge of it from Zaleski to the place where the accident occurred. The fact that he was a gratuitous passenger makes no difference. He then went at the suggestion of the conductor forward to see the engineer, while the train was not in motion, and went up into the engine for the purpose of talking to the engineer about a matter of business in which he, Cox, was interested and in which the engineer was interested, and in which the company was interested. He was not riding on the engine in violation of any rule of the company; the company had undertaken through its agent, the conductor, to carry him on this train, and he had no right to injure him actively by its negligence, and even though he had no right to ride on the train from Zaleski to Schooley’s, where the train stopped, and even though he was a trespasser in so doing, yet Avhen he left the caboose and went forward, and with the consent of the engineer, got upon the engine and talked to the engineer, who had a right there under the rules of the company upon a business matter in which both of them were interested; he ceased to be a trespasser and the company would have been liable not only for the act of negligence of one of its agents in opening the switch and in going away without closing it such as this was, but would have been liable beyond that for even its careless omission to keep its tracks in repair or any other mere omission by its negligence.
    Upon the question that Cox was not a trespasser in going upon the engine to talk upon this business see Railway Co. v. O’Brien, 2 Circ. Dec., 681; 4 C. C. R., 515.
    Upon the question of his having a right on the train by the consent of the conductor and engineer. 19 Am. & Eng. Ency. Law (1 ed.), 934; Rosenbaum v. Railway Co., 38 Minn., 173; Gradin v. Railway Co., 30 Minn., 217.
    Upon the question of his having a right to go and talk to the engineer on business. Railway Co. v. Bingham, 29 Ohio St., 373.
    Upon the question of whether if Cox had a right by the consent of the conductor to ride upon the train he, lost it by going from the caboose to the engine. Healey v. Railroad Co., 28 Ohio St., 23; Wilton v. Railroad Co., 107 Mass., 108; Vail v. Railway Co., 7 Circ. Dec., 28; 13 C. C. R., 494; Schwartz v. Street Ry. Co., 4 Circ. Dec., 272 ; 8 C. C. R., 484.
    Upon the question of whether the act of Hendershot binds the company. Ramsdale v. Railway Co., 104 Mass., 117.
    
      But even if Cox was a trespasser pure and simple in going upon the engine, this does not relieve the company from liability from its active negligence in killing him. It was in the possession and control of powerful and dangerous agencies and it was required to so use them so as not to injure Cox, even if he was trespasser. Wood Master & Servant, p. 777; Kerwhaker v. Railway Co., 3 Ohio St., 172, 195; Railway Co. v. Stallmann, 22 Ohio St., 1; Railway Co. v. Kassen, 49 Ohio St., 230; Railway Co. v. Kelly, 5 Circ. Dec., 662; Railway Co. v. Schade, 8 Circ. Dec., 316; 15 C. C. R., 424; Larmore v. Iron Co., 101 N. Y., 390.
    There is no question of contributory negligence in the case. It might be said that if Cox had been in the caboose and not on the engine he would not have been killed, but his being upon the engine was not the proximate cause of his death and his being there did not contribute to his death in the legal sense. It was the negligence of the company that proximately caused his death and this was what caused the collision. The collision would have occurred whether Cox was on the engine or not, so that his being on the engine did not in any way contribute toward causing the collision which resulted in his death, and whether he had any business on the engine or not, makes no difference so far as this question is concerned, so there is no question of contributory negligence on his part.
    The plaintiff below claimed that it was a case of gross negligence, amounting in effect to recklessness, and that in such case it made no difference whether the decedent was a trespasser or not and that this was a question for the jury on the evidence.
    So that the case could not rightfully be withdrawn from the jury whether the decedent was a trespasser or mere licensee, and the circuit court had a right to reverse the judgment below.
    Upon the question of whether a recovery can be had upon the pleadings as they are. 14 Am. and Eng. Ency. Pl. & Pr., 338; Nolton v. Railway Co., 15 N. Y., 444.
    The common pleas court failed to recognize the difference between acts of negligence of commission a,nd those of mere omission. It also failed to recognize the fact that Cox had business on the engine even though he might have been a trespasser while he was riding in the caboose, and the engineer having a right on the engine and it being contrary to the rules of the company for him to leave the engine, this gave a right to any one having business with him to go upon the engine without being a trespasser; and even if the collision had been caused by an act of omission on the part of the company, Cox would have been protected under the doctrine laid down in Railway Co. v. Bingham, 29 Ohio St., 364.
    The facts in the case show that there was no mere negligence on the part of the company, that it was a case of gross negligence in leaving the switch open with a train running forty-five miles an hour within six or eight minutes at the very furthest away, and with no reasonable hope that any one would discover the switch open in time to prevent a collision. 5 Am. Neg. Rep., 139; Railway Co. v. Kelly, 5 Circ. Dec., 662; 12 C. C. R., 341; Such v. Railway Co., 2 Re., 352; 2 W. L. M., 486; Railway Co. v. Margrat, 51 Ohio St., 130; Railroad Co. v. Karsten, 49 Ohio St., 230; Railroad Co. v. Schade, 57 Ohio St., 650; Railroad Co. v. Allen, 64 Ohio St., 183.
   Shauck, J.

It is elementary that actionable negligence exists only when one negligently injures another to whom he owes the duty,, created by con-' tract or operation of law, of exercising care. Burdick v. Cheadle, 26 Ohio St., 393; Railway Company v. Bingham, 29 Ohio St., 364; Elster v. Springfield, 49 Ohio St., 82. There being in the present case neither' allegation nor evidence that the fatal injuries were inflicted willfully or intentionally, there can be no recovery unless there existed between the decedent and the company a relation which imposed upon it the duty of exercising care toward him. Although it was alleged in the petition that he was at the time of the accident in the service of the company and traveling on a freight train in obedience to its orders, the allegation was denied in the answer and refuted by the testimony of the plaintiff herself.

The view of counsel for the defendant in error appears to be that the duty of the company to exercise care toward the decedent arose out of the fact that he was riding on the freight train with the express or implied assent of the conductor; and this view is said to have been taken in the circuit court. It invokes the doctrine of the law of agency; and, since the company did not authorize the transportation of passengers on its freight trains, it relies upon the implied or apparent authority of the conductor to bind the company to a relation which its rules forbade. It assumes that the company had given to the conductor an apparent authority which its operating rules had expressly denied him. But the apparent authority of the conductor was to represent the company in the conduct of that portion of its business to which the train in his charge was appropriate. It did not, therefore, exceed his actual authority. The differences between trains intended exclusively for the carriage of freight and those intended for the carriage of passengers are so obvious and familiar as to forbid tbe view suggested. The cases in which a recovery has been denied upon such facts as are here presented áre so numerous that it is not practicable to cite them fully. Among them are Eaton v. Railroad Co., 57 N. Y., 382; McVeety v. Railroad Co. 45 Minn., 268; Railroad Co. v. Roach, 83 Va., 375; Files v. Railroad Co., 21 N. E. Rep., 311; Smith v. Railroad Co., 124 Ind., 394; Railroad Co. v. White, 34 S. W. Rep., 1042; Railroad Co., v. Hailey, 94 Tenn., 383; Railway Co. v. Black, 87 Tex., 160.

The adjectives used to characterize the negligence of the brakeman in leaving the switch open should not be permitted to excuse the obvious failure of the plaintiff below to place her intestate in the position of one to whom the company owed care. In directing a verdict for the defendant the trial judge correctly applied to the evidence the pertinent principles of the law as they are illustrated in the decided cases.

Judgment of the ■ circuit court reversed and that of the common fleas affirmed.

Burket, Davis and Price, JJ., concur.  