ride on the train to Kinney. He told him he could not ride on the train, as he had no authority to do so, and would not carry passengers. He gave no one permission to ride on the train.

Conductor's testimony.

The brakeman had no authority to allow any one to ride. Both doors of the caboose were locked. Two brakemen were inside, both of whom had lanterns. There were 14 cars in the collision. The brakeman on the north end of the cars failed to set the brakes, and this caused the collision." Plaintiff denied telling any one that he was on the platform of the caboose at the time of the accident. It was admitted that the conductor and brakeman were discharged on account of the accident. The jury returned a verdict for $150 actual and $350 punitory damages. No exemplary damages were claimed in the petition, and judgment was rendered for the former, the latter having been remitted. The case is before us on appeal, but there is no appearance for appellee.

The refusal of the court below to give the following charges requested, is assigned as error: "(1) If you believe from the

Instructions

evidence that the freight train in question was prohibited from carrying passengers, and that when plaintiff applied to the conductor for passage on refused. said train he was informed by the conductor that

requested and

This

he could not ride on that train, then you will find for the defendant, although you may believe that a brakeman or some other person afterwards told the plaintiff to get on the train. (2) If you believe from the evidence that by the rules of the company passengers were forbidden to be carried on the train in question, then the presumption is that the plaintiff was an intruder, and without lawful right to be there. presumption may be rebutted by the plaintiff, showing that while the rules forbid the transportation of passengers upon such trains, yet with knowledge of the company, and without objection on its part, they are habitually permitted to take passage on such trains. The company, through its proper officers, having the right to make these rules, may, through the same officers, relax or dispense with them, and the public are authorized to consider them dispensed with when not practically enforced. The conductor cannot relax these regulations without the consent of the company, because he is the agent whose special duty it is to see that they are enforced, and any relaxation of the rules on his part would be a disobedience of the orders of his superiors. There is no proof of gross negligence in this case, and hence if you find that, as defined in the charge, the plaintiff was not a lawful passenger on the car, you will find for defendant.

These instructions are in the language of our supreme court

ders.

in the case of Prince v. International & G. N. R. Co., 64 Tex. 146, 21 Am. & Eng. R. Cas. 152. The jury were Travelling in instructed that, if the plaintiff entered the caboose caboose by the invitation, knowledge and consent of the against conconductor, he was a lawful passenger, and was en- ductor's or titled to all the rights, etc., of such passenger on a regular passenger train; and, if he received the injuries through the carelessness and negligence of the defendant, he was entitled to a verdict. But if they believe the caboose was not in the habit of carrying passengers, and plaintiff entered it without the knowledge and consent of the conductor, he was guilty of contributory negligence, and could not reCover unless the company was guilty of gross negligence. We do not understand this to be the law applicable to the facts in this case. 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, under the authority of Houston &G. N. R. Co. v. Moore, 49 Tex. 31, and Prince v. International & G. N. R. Co., supra, 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. This is not denied by the plaintiff's evidence. It is quite plain that he knew, or certainly had reason to suppose, that the "man on the platform with a lantern in his hand" was violating the order of the defendant, even if he was one of defendant's employes, and gave him permission to ride. It does not appear from the plaintiff's evidence that the person giving him permission to ride in the caboose was authorized so to do; and it does appear from the evidence that the plaintiff was informed by the conductor that he could not carry passengers on that train. A case, then, is presented in which the plaintiff is injured while unlawfully upon defendant's car, and, according to his evidence, the injury would not have occurred but for his own negligence. We think, under the rules laid down in the cases cited, a charge embodying the principles contained in the instructions requested should have been given.

The fifth assignment of error is that the court erred in admitting, over the defendant's objection, the evi

cal attend.

dence of Dr. McGregor relative to his medical bill Damages of $100; it appearing from said evidence that his Bill for medisaid medical bill was based upon a prospective law- ance. suit, and not for services actually rendered. Dr. McGregor,

on direct examination testified: "My bill was

one hundred dollars and has not been paid. I believe the bill under the circumstances was a reasonable one. I have charged Campbell with it, and expect him to pay me if he can but get anything in this suit." On cross-examination he testified: "Visited plaintiff four or five times, at a distance of three miles. According to my schedule, the ordinary price for a visit to Mr. Campbell would be $3, which for five visits would amount to $15. I prescribed for him five times. Charge for each prescription, $1.50, which for five prescriptions would amount to $7.50, making a total of $22.50. My charge of one hundred dollars was based on a prospective lawsuit. The reason I charge more in cases of gunshot wounds, cuts, and railroad accidents is that, as attending phy. sician, I always have to testify as an expert as to injuries and their possible consequences. This entails a great deal of work I would not have to do in ordinary cases." Whereupon the defendant objected to the evidence relating to the medical bill of $100, and asked that it be excluded, on the ground that the same was incompetent and inadmissible, it appearing from the witness' own testimony that his bill was based upon a prospective lawsuit, and not for services actually rendered to the plaintiff; which request was by the court refused. The court, in its charge, did not exclude from the consideration of the jury so much of the bill as was based on a prospective lawsuit. If the plaintiff was entitled to any damages under the facts of this case, a question we are not called upon to decide, he was entitled, as a part thereof, to recover the reasonable value of medical services rendered him in effecting a cure; but he was not entitled to recover the value of his services as a witness in the case. For the errors mentioned we think the judgment should be reversed, and the cause remanded.

STAYTON, C. J.-Report of commission of appeals examed, their opinion adopted, and judgment reversed, and cause remanded.

ADAMS

ย.

MISSOURI PACIFIC R. Co.

(Missouri Supreme Court, December 21, 1889.)

Passenger on Freight Train-Alighting-Failure to Stop at Station.-A passenger on a freight train, aged 67, and in good health, was informed by the conductor that he did not propose stopping at the station and was directed to get off about a quarter of a mile from it. There was a barbed wired fence on each side of the railway, and he immediately started forward alongside the train upon the only route apparently open to him. Upon reaching a bridge, he found that the only possible manner of proceeding was by getting on the top of a flat car on the bridge in the same manner as the conductor and a passenger had previously done. He mounted the car and passed on it safely over the bridge to the front end of the car. He examined the ground before he got down, and got upon the coupling between the cars. In springing to the ground his leg was broken. The evidence showed that plaintiff hurried his movements because of fear that the train should start. Held, that he had no cause of action. BRACE and BLACK, JJ., dissenting.

APPEAL from Circuit Court, Cass County:

T. J. Portis and Adams & Bowles for appellant.
Railey & Burney, for respondent.

Facts.

pro

BRACE, J.-This is an action for personal injuries, in which the plaintiff recovered judgment in the circuit court for $10000 damages, from which the defendant appeals. At the time of the injury the defendant was carrying passengers on all its freight trains. The plaintiff, by fession, a minister of the gospel, aged about 67 years, in good health, earning about $700 per annum in his profession, took passage on one of defendant's freight trains at Archie, a station, for Harrisonville, another station, on defendant's road, paying the usual fare to the conductor, and informing him of his place of destination. When the caboose in which plaintiff was riding, and which was at the rear end of the train, arrived at a point about one-quarter of a mile from the depot at Harrisonville, at which passengers were usually landed, the conductor came to him, and said: "You will have to get off here. I am not going to stop when I start. I will not stop at the depot. I shall go on as fast as I can ;" and, leaving him, went forward on the flat-cars loaded with coal in the train, towards the engine and the depot. The plaintiff seeing no other employes of the road about, and being unacquainted with "the ground around there," got off the caboose

at the rear end thereof, and discovered that the train was stopping on a "fill," and that the roadway on each side was fenced with a barbed-wire fence of five strands. His business being urgent, he started on the roadbed alongside the train, towards the front, to make his way up to the depot. He had proceeded in his course but a short distance (three or four carlengths from the caboose), when he came to a bridge across a water-way, provided for through the fill in the ravine. The bridge resting on two perpendicular stone abutments, about 15 feet high, the whole space of the bridge occupied by one of the flat-cars in the train, loaded with coal, and the space between the bridge and the barbed-wire fence running parallel with the road, closed by a similar fence running from the one to the other, his further progress in the direction of the depot was thus completely blocked, except by way of the coal-car over the bridge. His subsequent movements appear from the following extracts from his evidence given on the trial: "Question. Now state to the jury why you didn't go on to the depot. Answer. There was a barbed-wire fence right before me, and one at my right side, and I could not get out. There was a young man on the other side of the train. It was Mr. Kerens, and he was a little more active than I was, and got up on one of the flat-cars, and I got up on that flat-car, and walked the length of it, until we passed over the culvert, and then I swung off, and tried to get down as cautiously and prudently as I could. The train was standing still at that time. In getting off I was probably considerably excited for fear the train would start. I was a long ways from the engine, and I didn't know when the engine would start. I hurried to get off, and when alighting I fell over, so that I think my foot struck the end of one of the ties, and snapped the leg right there. Q. State to the jury if it was hurt as you got off the train. A. I hadn't made a motion with the other foot until I felt my leg give way. Q. State to the jury what was the condition of your eyesight at that time. A. My sight is not as good as it was some years ago. I examined the ground before I got down; I thought I could make it. Q. State to the jury what was the condition of the ground there, so far as you could see. A. The ground was quite descending. It was rather steep. It was lower from the side track out to where the grade commenced. I though it was pretty level where I looked and where I was stepping. I looked as well as I could, hurriedly. I saw no reason why I could not make it safely. Near the ties, if I remember rightly, it was level-that is my recollection of itand it descended rapidly a few feet further. On Cross-Examination. Q. Describe the manner in which you got off the