and injure another person who is a passenger in the car, and there is no showing why it drops or that it is defective, or of any previous trouble, or that the operator was incompetent, or that the usual precautions were wanting, there is no negligence on the part of the owner. 77 75 76 [ 1436] (3) Relation of Carrier and Passenger. The burden is on plaintiff to prove that he was a passenger, and as such was being rightfully transported at the time of the accident," although during the trial there is no suggestion of a denial of that fact." This burden, however, is aided by the presumption that a person traveling in a railroad car, or other public conveyance used for passenger carriage, and who is not connected with the carrier as employee, is presumed to be there lawfully as a passenger. But such presumption does not arise where there is evidence that the person was riding 78 Astoria Hotel Co., 90 Misc. 331, 152 NYS 1019. 75. Elsey v. J. L. Hudson Co., (Mich.) 155 NW 377, LRA1916B 1284. 76. Ala.-Birmingham R., etc., Co. v. Washington, 192 Ala. 617, 69 S 65; Birmingham R., etc., Co. v. McCurdy, 172 Ala. 488, 55 S 616; Alabama City, etc., R. Co. v. Bates, 149 Ala. 487, 43 S 98. Ill-Carroll v. Chicago City R. Co., 180 Ill. A. 309; Kulpinsky v. Sampsell, 145 III. A. 242; Chicago, etc., R. Co. v. Huston, 95 Ill. A. 350 [aff 196 Ill. 480, 63 NE 1028]. Ky.-Louisville, etc., R. Co. V. Harmon, 64 SW 640, 23 KyL 871. Mo.-Reisenleiter V. St. Louis United R. Co., 155 Mo. A. 89, 134 SW 11. Mont.-Hoskins v. Northern Pac. R. Co., 39 Mont. 394. 102 P 988. Nebr.-Lincoln Tract. Co. v. Webb, 73 Nebr. 136, 102 NW 258, 119 AmSR 879. Tex.-Missouri, etc., R. Co. v. Huff, 98 Tex. 110, 81 SW 525 [rev (Civ. A.) 78 SW 249]; Texas, etc., R. Co. v. Black, 87 Tex. 160, 27 SW 118. Utah.-Utah-Schuyler v. Southern Pac. Co., 37 Utah 581, 109 P 458 [reh den 37 Utah 612, 109 P 1025]. [a] Postal clerk.-(1) Where, in an action by a railroad postal clerk for injuries incurred when he was off duty, caused by the derailment of a train, plaintiff elected to rest his case without offering any testimony as to the cause of the derailment, the burden was on him to prove that he was a passenger, and it was incumbent on him to show either that defendant was under a specific contractual or statutory obligation to the government to carry him in the mail car where he was at the time, or that defendant recognized the request for transportation embodied in a photograph commission, relating to his transportation when he was off duty. Hoskins v. Northern Pac. R. Co.. 39 Mont. 394, 102 P 988. (2) But where a railroad postal clerk was in charge of the mail at the time he was injured, the burden of proving that he was a passenger would not rest on him, as Rev. St. § 4000 (U. S. Comp. St. [1901] p 2719), imposes on railway companies carrying mail the duty to carry also, without extra compensation, the person in charge thereof. Hoskins v. Northern Pac. R. Co., supra. (3) In an action for the death of a railroad mail clerk, the burden of proving that deceased was in the discharge of his official duties at the time of the accident in which he was killed is on plaintiff. Schuyler v. Southern Pac. Co.. 37 Utah 581, 109 P 458 [reh den 37 Utah 612, 109 P 1025]. [b] One who attempts to ride on a nontransferable pass issued to another has the burden of showing that he was accepted by the carrier as a passenger. Beard V. International, etc., R. Co., (Tex. Civ. A.) 171 SW 553. 79 80 on the train as a trespasser,' as where he was riding upon a car, or part of the train, not intended for the accommodation or use of passengers; nor is there any presumption that one riding in the private vehicle of another is being carried as a passenger for hire.81 Evidence that plaintiff was riding on a ticket purchased at defendant's ticket office and at the time of the accident was a passenger on defendant's train which was being operated over its railroad is prima facie proof that the train was being operated by and in charge of defendant's employees.82 83 A person on a freight train carrying passengers is presumed to be thereon as a passenger, particularly where it is required by statute that local freight trains shall carry passengers.84 But ordinarily one riding on a train used for conveying freight exclusively,85 or on a freight car of a mixed 77. Birmingham R., etc., Co. V. McCurdy, 172 Ala. 488, 55 S 616. 78. U. S.-Lydon v. Robert Smith Ale Brewing Co., 133 Fed. 830; Bryant v. Chicago, etc., R. Co., 53 Fed. 997. 4 CCA 146. Cal.-Peo. v. Douglass, 87 Cal. 281. 25 P 417; Bond V. San Francisco United R. Co., 24 Cal. A. 157, 140 P 982. Colo. Atchison, etc.. R. Co. V. Headland, 18 Colo. 477, 33 P 185, 20 LRA 822. Ga.-Georgia, etc., R. Co. v. Tapley, 144 Ga. 453, 87 SE 473, LRA 1916C 1020. Ind.-Louisville, etc.. R. Co. V. Thompson, 107 Ind. 442, 8 NE 18, 9 NE 357, 57 AmR 120. Mass.-Gray v. Boston, etc., R. Co., 168 Mass. 20, 46 NE 397. Mo.-Anderson v. Missouri Pac. R. Co., 196 Mo. 442, 93 SW 394, 113 Am SR 748. N. Y.-Buffett v. Troy, etc., R. Co., 40 N. Y. 168. Pa. Creed v. Pennsylvania R. Co., 86 Pa. 139, 27 AmR 693; Pennsylvania R. Co. v. Books, 57 Pa. 339, 98 AmD 229. Tex.-Prince v. International, etc., R. Co., 64 Tex. 144. [a] On hand car.-The presumption is that one riding on a hand car is not legally a passenger, and it rests on him, under all the circumstances of the case, to rebut the presumption. Willis v. Atlantic, etc., R. Co.. 120 N. C. 508, 26 SE 784. [b] Exclusive trains.-Railroad companies have the right to run trains which do not carry passengers, or to run trains for a particular person, or for a particular class of persons, and if one boards such a train with notice of its character he is not presumptively a passenger. Whether he should be treated as a passenger or not depends on the circumstances of each particular case. Fitzgibbon v. Chicago, etc., R. Co., 108 Iowa 614, 79 NW 477. [c] Work trains (1) All persons are required to take notice that railroad work trains are not intended for the transportation of passengers, and to recover for injuries to a person while traveling on such train it must be shown that he was rightfully there, and that the company owed him the duty of carrying him safely. Prescott, etc., R. Co. v. Hop S. C.-Iseman V. South Carolina, etc.. R. Co., 52 S. C. 566, 30 SE 488. Tex.-Missouri, etc., R. Co. v. Wil-kins, 122 Ark. 168, 182 SW 551; Pennliams, 91 Tex. 255, 42 SW 855 [rev (Civ. A.) 40 SW 350]. W. Va.-Gillingham v. Ohio River R. Co., 35 W. Va. 588, 14 SE 243, 29 AmSR 827, 14 LRA 798. [a] Person at station. In an action for injuries received by plaintiff while in the entrance for passengers to defendant's station, testimony that plaintiff had traveled over the road for fifteen years, and that after the accident she was helped to the waiting room for ladies, and took the train for home, warrants an inference that she was within defendant's implied invitation to enter the place, and was a passenger. Gray v. Boston, etc., R., 168 Mass. 20, 46 NE 397. em [b] Presumption that holder of pass is employee.-The fact that the issuance of a pass to a person would be unlawful if he were not an ployee of the carrier issuing the same raises the presumption that he is such an employee, and not a passenger. Gill v. Erie R. Co., 151 App. Div. 131, 135 NYS 355 [rearg den 152 App. Div. 904, 136 NYS 1135]. 79. Southerland v. Texas, etc., R. Co., (Tex. Civ. A.) 40 SW 193. 80. Ark.-Prescott, etc., R. Co. v. Hopkins, 122 Ark. 168, 182 SW 551. Cal.-Peo. v. Douglass, 87 Cal. 281, 25 P 417. Co. v. Coyer, Ind.-Pennsylvania 163 Ind. 631, 72 NE 875. Iowa. Fitzgibbon v. Chicago, etc., R. Co., 108 Iowa 614. 79 NW 477. La. Snyder v. Natchez, etc., R. Co., 42 La. Ann. 302, 7 S 582. Nebr.-Kadner v. Omaha, etc., R. Co., 97 Nebr. 678, 151 NW 169. N. C.-McGraw v. Southern R. Co., 135 N. C. 264, 47 SE 758. S. C.-Iseman V. South Carolina, etc., R. Co., 52 S. C. 566, 30 SE 488. sylvania Co. v. Coyer, 163 Ind. 631, 72 NE 875. (2) A person, not an employee, riding on a work train in violation of a rule forbidding the carrying of passengers on work trains, is presumed to be a trespasser, and this presumption is not overcome by proof of any number of former trespassers having ridden thereon. International, etc., R. Co. v. Hanna, (Tex. Civ. A.) 58 SW 548. [d] On crowded car.-A person standing on the steps of a moving street car, without being able to secure a seat or standing room within, is presumed to be there with the consent of those in charge of the car. Kadner v. Omaha, etc., St. R. Co., 97 Nebr. 678, 151 NW 169. [e] On platform.-Where a person is found on the platform of a mail car or on some other car not intended for the accommodation or use of passengers, no such conclusion as that he was a passenger could be legitimately drawn. Peo. v. Douglass, 87 Cal. 281, 25 P 417. 81. Lydon v. Robert Smith Ale Brewing Co., 133 Fed. 830. 82. Lake Erie, etc., R. Co. v. Delong, 109 I11. A. 241. 83. Ala.-Georgia Pac. R. Co. v. Love, 91 Ala. 432, 8 S 714, 24 AmSR 927. etc., Ind. Woolery v. Louisville, R. Co., 107 Ind. 381, 8 NE 226. Mo.- -Norton v. St. Louis, etc., R. Co.. 40 Mo. A. 642. Tex.-Prince v. International, etc.. R. Co., 64 Tex. 144. Va.-Southern R. Co. v. Dawson, 98 Va. 577, 36 SE 996. 84. Kruse v. St. Louis, etc., R. Co., 97 Ark. 137, 133 SW 841. 85. Dysart v. Missouri, etc., R. Co., 122 Fed. 228, 58 CCA 592; Purple train, is presumed not to be a passenger, and he has the burden of showing special circumstances to rebut this presumption.56 As between connecting carriers, where a passenger buys what purports to be a through ticket from the first carrier, he will be presumed to be under such carrier's care during the whole trip, and the burden is on such carrier to show otherwise.87 Rebutting presumption. The presumptions as to the relation of passenger and carrier, arising from the manner in which a person is traveling, are merely presumptions of fact, and may of course be v. Union Pac. R. Co., 114 Fed. 123, 51 CCA 564, 57 LRA 700; Bergan v. Central Vermont R. Co., 82 Conn. 574, 74 A 937; Menaugh v. Bedford Belt R. Co., 157 Ind. 20, 60 NE 694. [a] In the absence of any rule or practice (1) permitting freight trains to carry passengers, the presumption is that conductors have no authority to authorize them to ride thereon; but this presumption may be overcome by proof of an order to the conductor from the superior officer to carry the person on his freight train. Dysart v. Missouri, etc., R. Co., 122 Fed. 228, 58 CCA 592; Purple v. Union Pac. R. Co., 114 Fed. 123, 51 CCA 564, 57 LRA 700. (2) In the absence of an established custom, or some sort of notice that amounts to an invitation, when a person gets aboard a train composed of cars obviously designed for and loaded with stone and other goods in the absence of the conductor and other employees of the company, he will be presumed to be a trespasser, and the burden rests on him to prove that he rightfully took passage. Menaugh v. Bedford Belt R. Co., 157 Ind. 20, 60 NE 694. [b] Arrangement with conductor. -A person claiming to be a passenger on a freight train by an arrangement with the conductor has the burden of showing the conductor's authority to make such an arrangement. Bergan v. Central Vermont R. Co., 82 Conn. 574, 74 A 937. 86. Waterbury v. New York Cent., etc., R. Co., 17 Fed. 671, 21 Blatchf. 314; Atchison, etc., R. Co. v. Headland, 18 Colo. 477, 33 P 185, 20 LRA 822; Eaton v. Delaware, etc., R. Co., 57 N. Y. 382, 15 AmR 513; Missouri, etc., R. Co. v. Huff, 98 Tex. 110, 81 SW 525 [rev (Civ. A.) 78 SW 249]; San Antonio, etc., R. Co. v. Lynch, (Tex. Civ. A.) 55 SW 517. on an [a] Arrangement with brakeman. -Where plaintiff took passage defendant's freight train under agreement with the brakeman, and did not ride in the caboose, but on a coal car, it was not to be presumed that the brakeman had authority to make such agreement, or that plaintiff acquired the relation of passenger by getting on the car, but the burden was on plaintiff to prove such facts. Missouri, etc.. R. Co. v. Huff, 98 Tex. 110, 81 SW 525 [rev (Civ. A.) 78 SW 249]. 87. Clemmens v. Washington Park Steamboat Co., 162 Fed. 815; Prethrow v. West Jersey, etc., R. Co., 214 Pa. 112, 63 A 415, 112 AmSR 736. 88. Bryant v. Chicago, etc., R. Co., 53 Fed. 997, 4 CCA 146; Peo. v. Douglass, 87 Cal. 281. 25 P 417. 89. Cross references: Contributory negligence see infra $.1518. Declarations of agents and employees see Evidence [16 Cyc 1205 et seq]. Negligence generally see Negligence [29 Cyc 606 et seq]. Opinion evidence see Evidence [17 Cyc 25 et seq]. Res gestæ see Evidence [16 Cyc 1241]. Under pleadings see supra §§ 1420, 1422. 90. See generally Evidence [16 Cyc 1110 et seql. 91. Ala.-Nashville, etc.. R. Co. v. Crosby, 70 S 7; Central of Georgia R. Co. v. Bell, 187 Ala. 541, 65 S 835; Southern R. Co. v. Harrington, 166 Ala. 630, 52 S 57, 139 AmSR 59. [10 C.J.-66] Cal.-Mitchell v. Southern Pac. R. Co., 87 Cal. 62, 25 P 245, 11 LRA 130. Colo.-Trumbull V. Donahue, 18 Colo. A. 460. 72 P 684. Conn.-Hall v. Connecticut River Steamboat Co., 13 Conn. 319. D. C.-Jones v. Baltimore, etc., R. Co., 21 D. C. 346. Ga.-Atlantic Coast Line R. Co. v. Powell, 127 Ga. 805, 56 SE 1006, 9 LRANS 769, 9 AnnCas 553. Ill-Collison v. Illinois Cent. R. Co., 239 Ill. 532, 88 NE 251; Johnson v. Chicago City R. Co., 174 Ill. A. 148; Williamson Grand Trunk Western R. Co., 159 Ill. A. 443; Pittsburgh, etc., R. Co. v. Story, 104 Ill. A. 132. V. Ind. Cleveland, etc., R. Co. V. Jones, 51 Ind. A. 245, 99 NE 503. Iowa. Fitch v. Mason City, etc., Tract. Co., 124 Iowa 665, 100 NW 618. Ky-Louisville, etc., R. Co. V. Carothers, 65 SW 833, 66 SW 385, 23 KyL 1673. Mass.-Thayer v. Old Colony St. R. Co., 214 Mass. 234, 101 NE 368, 44 LRANS 1125, AnnCas1914B 865; Merrill v. Eastern R. Co., 139 Mass. 252, 29 NE 666. Mo.-Dougherty v. Missouri R. Co., 97 Mo. 647, 8 SW 900, 11 SW 251. Nebr.-Nixon V. Omaha, etc., R. Co., 79 Nebr. 550, 113 NW 117. N. Y.-Herdt v. Rochester City, etc., R. Co., 65 Hun 625, 20 NYS 346 [aff 142 N. Y. 626, 37 NE 565]. S. C.-Nickles v. Seaboard Air Line R. Co., 74 S. C. 102, 54 SE 255. V. Tex.-Texas Cent. R. Co. Wheeler, 52 Tex. Civ. A. 603, 116 SW 83; Gulf, etc.. R. Co. v. Cleveland, (Civ. A.) 61 SW 951; Galveston, etc., R. Co. v. Patterson, (Civ. A.) 47 SW 686. [a] Evidence that another was seated near plaintiff at the time of the accident and was not injured is admissible as a circumstance for the jury to consider in determining whether plaintiff was injured. Levy v. Campbell, (Tex.) 19 SW 438, 20 SW 196. [b] Corroboration.-Where in an action for injuries to a passenger he testifies that he was standing on the platform with his hand on the frame of the door, evidence of other passengers on the platform that they saw plaintiff standing and supporting himself in the manner described by him is admissible to corroborate plaintiff's testimony. Trumbull V. Donahue. 18 Colo. A. 460. 72 P 684. [c] What took place in the car at the time of the accident is competent, as illustrating the severity of the injury. Louisville, etc.. R. Co. v. Carothers, 65 SW 833, 66 SW 385, 23 KyL 1673. [d] Duties of postal clerk-In an action by a railroad postal clerk for damages caused by illness due to working in an unheated car, plaintiff could testify as to his duties as postal clerk in the car and how long he was compelled to remain therein. Southern R. Co. v. Harrington, 166 Ala. 630, 52 S 57. 139 AmSR 59. LRANS 769, 9 AnnCas 553. 92. U. S.-Maury v. Talmadge, 16 F. Cas. No. 9,315, 2 McLean 157. Ala.-Birmingham R., etc., Co. v. Selhorst, 165 Ala. 475, 51 S 568; St. Louis, etc., R. Co. v. Savage, 163 Ala. 55, 50 S 113; Dilburn v. Louisville, etc., R. Co., 156 Ala. 228, 47 S 210; Birmingham R., etc., Co. v. Moore, 151 Ala. 327, 43 S 841. Ark.-St. Louis, etc., R. Co. V. Briggs, 87 Ark. 581, 113 SW 644. Cal-Waniorek V. San Francisco United R. Co., 17 Cal. A. 121, 118 P 947. Del.-MacFeat v. Philadelphia, etc., R. Co., 22 Del. 513, 69 A 744. D. C.-Great Falls, etc., R. Co. v. Hammerly, 40 App. 196. Ga.-Macon, etc., R. Co. v. Johnson, 38 Ga. 409. Ill-Burkey v. Chicago City R. Co., 191 Ill. A. 364; Mayzels v. Chicago City R. Co., 177 Ill. A. 534. Ind. Anderson v. Scholey, 114 Ind. 553, 17 NE 125; Ohio, etc., R. Co. v. Selby, 47 Ind. 471, 17 AmR 719. Kan. Meek v. Metropolitan St. R. Co., 77 Kan. 842, 91 P 681. Ky.-Bowling Green R. Co. V. Lewis, 157 Ky. 575, 163 SW 759; Louisville, etc., R. Co. v. Renfro, 142 Ky. 590, 135 SW 266, 33 LRANS 133; Louisville, etc., R. Co. v. Carothers, 65 SW 833, 66 SW 385, 23 KyL 1673. Mass.-Kuhlen v. Boston, etc., R. Co., 193 Mass. 341, 79 NE 815, 118 AmSR 516, 7 LRANS 729. N. Y.-Merrill v. Metropolitan St. R. Co., 73 App. Div. 401, 77 NYS 122; Whitbeck v. Atlantic Ave. R. Co., 4 NYS 100. N. C.-Means v. Carolina Cent. R. Co., 124 N. C. 574, 32 SE 960, 45 LRA 164. Pa.-Holmes V. Allegheny Tract. Co., 153 Pa. 152, 25 A 640. Tex.-Franklin V. International, etc., R. Co., (Civ. A.) 174 SW 333; Moore v. Northern Texas Tract. Co., 41 Tex. Civ. A. 583, 95 SW 652; Crawleigh v. Galveston, etc., R. Co., 28 Tex. Civ. A. 260, 67 SW 140; Gulf, etc., R. Co. v. Southwick, (Civ. A.) 30 SW 592; Campbell v. Alston, (Civ. A.) 23 SW 33. Wash. Taylor v. Spokane, etc., R. Co.. 67 Wash. 96, 120 P 889. Wis. Spencer v. Chicago, etc., R. Co., 105 Wis. 311, 81 NW 407; Rudiger v. Chicago, etc., R. Co., 101 Wis. 292, 77 NW 169. [a] Evidence held inadmissible.(1) A card signed by passengers the day after a railroad accident, exonerating the officers of the train from all blame, is not admissible evidence in a suit against the corporation by the widow of a person killed by such accident. Macon, etc., R. Co. v. Johnson, 38 Ga. 409. (2) Evidence of the general understanding in a neighborhood as to the crowd expected to go on a railroad excursion, and to the effect that printed invitations had been issued and posters seen in public places, is not admissible, in an action for injuries received by reason of want of suffi[e] Reasons for delay in suing cient accommodations for excursionWhere several months have elapsed ists, to charge it with notice of the between the time of the alleged in- extent of the accommodations rejuries and the bringing of the suit, quired. Chicago, etc., R. Co. v. it is competent for defendant's coun- Fisher, 31 III. A. 36. (3) In an acsel to inquire of plaintiff, while a tion against a street car company for witness on the stand, why she had injury to a passenger, it is incom"delayed so long in bringing the petent for the driver of the car to suit." Atlantic Coast Line R. Co. v. testify what his experience is with Powell, 127 Ga. 805, 56 SE 1006, 9'relation to motion given to cars when the carrier maintains a system of having accidents reported by employees, evidence that no such report had been made is admissible as tending to show that no such accident occurred.93 But on the other hand, it has been held that evidence that no report of the accident had been made is inadmissible when objected to by plaintiff, or where defendant otherwise had notice thereof.95 Where plaintiff in an action for injuries inflicted by an employee has 94 starting as affecting the passengers. Holmes v. Allegheny Tract. Co., 153 Pa. 152, 25 A 640. (4) The statements of persons not in the employ of a railroad company as to the exits open on a passenger train, which statements misled a passenger as to the exits open, are not admissible to show negligence by the company. Ft. Worth, etc., R. Čo. v. Taylor, (Tex. Civ. A.) 162 SW 967. (5) In an action for damages by_illness occurring on three days in January, defendant could not show that plaintiff brought another suit against it to recover for illness occurring thereafter in February. Southern R. Co. v. Harrington, 166 Ala. 630, 52 S 57, 139 AmSR 59. (6) In an action. by a passenger for personal injuries caused by a collision, evidence that defendant had settled with another person injured by the same collision is inadmissible. R. Missouri, etc., Co. v. Vance, (Tex. Civ. A.) 41 SW 167. V. a [b] Photograph of wreck.-Where defendant carrier does not deny its liability for injuries to a passenger, the issue being the amount of damages, a photograph of the wreck is not material evidence. Taylor Spokane, etc., R. Co.. 67 Wash. 96, 120 P 889. Photographs in evidence generally see Evidence [17 Cyc 414]. [c] Evidence of unperformed duties. In an action against a street railroad company for injury to passenger caused by cars jerking on the grip iron on a grip car becoming caught, the company could not show that it had employees who had particular duties to perform, since duties unperformed would constitute no defense, and it was permitted to prove everything that was in fact done by any employee in the way of inspection, superintendence, and care of the track and appliances, as no matter how many employees the company had, or what their duties were, the company would be liable to the passenger for their neglect of such duties. Wyckoff v. Chicago City R. Co., 234 III. 613, 85 NE 237 [aff 136 Ill. A. 342]. 93. Sturgis v. Fifth Ave. Coach Co., 122 App. Div. 658, 107 NYS 270; McArthur v. New York City R. Co., 53 Misc. 292. 103 NYS 102; Shadletsky v. New York City R. Co., 88 NYS 1014; Hardin v. Ft. Worth, etc., R. Co.. 49 Tex. Civ. A. 184, 108 SW 490. [a] Rule requiring report.-(1) Evidence that one of the carrier's rules required a report of the happening of an accident is admissible as supplementing the evidence that the conductor in charge of the car had made no report of the accident, and that none occurred. Field V. New York City R. Co., 109 App. Div. 831, 96 NYS 457. But see Becker v. Buffalo, etc., Tract. Co., 52 Pa. Super. 93 (holding that such a rule was not admissible to excuse negligence). (2) Defendant should not be allowed to prove the existence of a rule requiring train crews to report accidents. when the effect thereof is to afford counsel an opportunity in argument to discredit plaintiff's claim regarding the accident, although it was not attempted to show that no report was made. Hardin v. Ft. Worth. etc.. R. Co.. 49 Tex. Civ. A. 184, 108 SW 490. Admissibility of rules generally see infra § 1449. 94. Guenther v. Metropolitan R. Co.. 23 App. (D. C.) 493. 95. Smith v. Chicago City R. Co., 169 Ill. A. 570. shown a ratification by defendant of the employee's acts, defendant may show what report its employee made to it of the affair.96 [§ 1438] (2) Relation of Carrier and Passenger. As bearing on the existence of the relation of carrier and passenger at the time of the accident, evidence is admissible which tends to prove9 or to disproves the injured person's right to ride on the car or other vehicle. Thus evidence is admissible 96. Hayes v. St. Louis R. Co., 15 in force when plaintiff was injured, Mo. A. 584. is admissible to prove that, in rent97. Ala.-Ball V. Mobile Light, ing the apartment, defendants still etc., Co., 146 Ala. 309, 39 S 584, 119 retained control of the elevator. PerAmSR 32, 9 AnnCas 962. kins v. Rice, 187 Mass. 28, 72 NE 323. Ill-Springer v. Ford, 189 Ill. 430, 59 NE 953, 82 AmSR 464, 52 LRA 930 [aff 88 111. A. 529]. Ky.-Glascock v. Cincinnati. etc., R. Co., 140 Ky. 720, 131 SW 779. Mass.-Perkins v. Rice, 187 Mass. 28, 72 NE 323. Tex.-San Antonio, etc., R. Co. v. Lynch, (Civ. A.) 55 SW 517. Wis.-Lucas v. Milwaukee, etc., R. Co., 33 Wis. 41, 14 AmR 735. [a] Evidence of a general custom not to charge fare for small children is competent on the issue of whether a small child, riding on a street car in company with his parent, but for whom no fare was paid, was a pasBall v. Mobile Light, etc., senger. Co., 146 Ala. 309, 39 S 584, 119 AmSR 32, 9 AnnCas 962. [b] Conversations (1) Where plaintiff and his companion purchased tickets for a certain journey and attempted to use them for the return trip on a train which did not stop at their destination, and plaintiff was injured while attempting to alight from the train at such destination while the train was in motion, evidence of conversations between defendant's ticket agent and the conductor and plaintiff's companion in his presence and hearing with reference to the passengers' right to ride on that train is competent. Glascock v. Cincinnati, etc., R. Co., 140 Ky. 720, 131 SW 779. (2) Where a railroad company usually permits passengers to be carried on some of its freight trains, and a person boards one of them believing it to be one on which passengers are carried, and receives injuries as result of mismanagement of the train, he may, in an action for such injuries, on an issue of the character of the train, prove conversations held by him and by members of the train crew at about the time he boarded the train, with the person who directed him to board it, tending to show that such person was an employee of the company. Lucas V. Milwaukee, etc., R. Co., 33 Wis. 41. 14 AmR 735. Declarations as part of res gestæ generally see Evidence [16 Cyc 1241]. a [c] Person on freight elevator. In an action by an employee of a tenant for injuries sustained through the falling of a defective freight elevator operated in the leased premises, plaintiff's evidence that it was his custom, as well as the custom of employees of other tenants in the building, to accompany freight being raised or lowered on the elevator, is properly admitted as tending to show that plaintiff was rightfully on the elevator at the time of the accident. Springer v. Ford, 189 Ill. 430, 59 NE 953, 82 AmSR 464, 52 LRA 930 [aff 88 Ill. A. 529]. [d] Control of elevator-Where. in an action for injuries to plaintiff received while seeking to use an elevator in an apartment building, defendants admitted ownership of the building, but denied that they were in control of the elevator at the time of the accident, evidence that shortly before the accident defendants had procured an indemnity insurance policy against loss or damage from accidents arising in operating the elevator, and that such insurance was 98. Gilmer v. Higley, 110 U. S. 47, 3 SCt 471, 28 L. ed. 62; Broyles v. Central of Georgia R. Co., 166 Ala. 616, 52 S 81, 139 AmSR 50; Florida East Coast R. Co. v. Jackson, 65 Fla. 393, 62 S 210; Pfaffenback v. Lake Shore, etc., R. Co., 142 Ind. 246, 41 NE 530. on [a] Refusal to pay fare-In an action against a carrier for injuries sustained through the negligence of defendant's employee, defendant, in order to prove that plaintiff was a trespasser, may ask plaintiff. cross-examination, if he did not refuse to pay his fare or to leave the coach, when plaintiff has testified that he was rightfully in the coach as a passenger under the usual conditions. Gilmer v. Higley, 110 U. S. 47, 3 SCt 471, 28 L. ed. 62. [b] Riding on pass.-(1) Where the issue is whether persons riding on a train are trespassers because riding on a pass which was issued to others, the conductor of the train may properly testify as to what a passenger must have to entitle him to ride, and where the passenger was riding on a pass issued to another and given to the conductor by plaintiff's mother who was sitting beside her, it is proper to ask the conductor whether he knew that plaintiff and her mother were known by him to be the persons to whom the pass was issued, since, if they were not, they would be trespassers, and not passengers; and the conductor may testify whether he was under duty to compel passengers to identify themselves as the persons named in the passes; and testimony of the conductor that the mother stated, in tones loud enough for her daughter to hear, that she was giving the pass for her daughter as well as for herself is not subject to a general objection that it was incompetent, immaterial, and irrelevant. Broyles v. Central of Georgia R. Co., 166 Ala. 616, 52 S 81, 139 AmSR 50. (2) The conductor may also properly be questioned as to whether he agreed to let plaintiff ride without paying her fare or showing some other right to ride in the train, and whether he had any right to permit plaintiff to ride without paying her fare or being provided with a pass, since it was competent to show that the conductor did not knowingly permit plaintiff to ride on a pass not issued to her. Broyles v. Central of Georgia R. Co., supra. [c] Stealing rides. Where the issue is whether deceased was a passenger on defendant's train or a trespasser, it is error to exclude evidence that he had frequently stolen rides on defendant's train. Florida East Coast R. Co. v. Jackson, 65 Fla. 393. 62 S 210. [d] Numbers on tickets taken up. -On an issue as to whether plaintiff was a passenger a certain day on one of defendant's trains, plaintiff hav ing testified that he was such passenger, and that his ticket was taken up by a certain conductor, defendant's auditor may testify to defendant's system of issuing and selling tickets by consecutive numbers, of stamping them on the date of their sales, of the return and preservation of tickets canceled by conductors. 99 which tends to show that the person injured was on and that the tickets returned as sold | subsequent 99. Ky.-Palmer Transfer Co. v. Smith, 137 Ky. 319. 125 SW 725, 136 AmSR 295, 29 LRANS 321. Tex.-American Express Co. V. Ogles, 36 Tex. Civ. A. 407, 81 SW 1023. But see Texas, etc., R. Co. v. Scott, 64 Tex. 549 (holding that, on the question whether one injured by a railroad accident was a passenger or an employee of the company, the fact that the conductor of the train received and treated him as a passenger was of no consequence). Wis.-Lucas v. Milwaukee, etc., R. Co., 33 Wis. 41, 14 AmR_735. en [a] Evidence held inadmissible. -(1) In an action by a boy ten years of age against a street car company for damages for personal injuries, evidence that boys had ridden on defendant's cars at different times without permission, and at other times by invitation, and without paying fare, is incompetent, as not tending to prove that plaintiff was titled to ride on the car he attempted to board at the time he was injured. Little Rock Tract., etc., Co. v. Nelson, 66 Ark. 494, 52 SW 7. (2) Where defendant's bus driver, having authority to accept and receive passengers, requested plaintiff to ride with him without paying fare at the time plaintiff was injured by the driver's negligence, evidence that defendant's officers had forbidden plaintiff to ride on the bus was inadmissible. Palmer Transfer Co. v. Smith. 137 Ky. 319, 125 SW 725, 136 AmSR 295, 29 LRA NS 321. 1. Ill.-East St. Louis, etc.. R. Co. v. Zink, 229 Ill. 180, 82 NE 283; Lake Shore, etc., R. Co. v. Brown, 123 Ill. 162, 14 NE 197, 5 AmSR 510. Mass.-Jones V. Boston, etc., R. Co., 205 Mass. 108, 90 NE 1152. Mo.-McGee V. Missouri Pac. R. Co., 92 Mo. 208, 4 SW 739, 1 AmSR 706. N. C.-Willis v. Atlantic, etc., R. Co.. 120 N. C. 508, 26 SE 784. Tenn.-Sands v. Southern R. Co., 108 Tenn. 1, 64 SW 478. Tex.-San Antonio, etc., R. Co. v. Lynch, (Civ. A.) 40 SW 631. Wis.-Lucas v. Milwaukee, etc., R. Co., 33 Wis. 41, 14 AmR 735. [a] Violation of rule.-Where it is alleged that the rule of defendant forbidding the carrying of passengers on its freight train was habitually violated, and the evidence shows that the rule was promulgated several years before plaintiff's husband was killed while so riding, evidence of persons having so ridden at times varying from six months to three years previous to the accident, or [§ 1439] (3) Competency and Selection of Carrier's Employees. Where the competency of an employee is in question, evidence of other specific acts of negligence by him is admissible to show his incompetency.5 So evidence of the use of reckless language by an employee has been held admissible to show his rashness or willfulness. And particular instances of care on the part of the employee are admissible to rebut evidence of his reputation for carelessness shown by evidence of particular instances of negligence, as is also evidence of his known reputation for efficiency.8 [b] Hand car.-Where a person is injured while riding on a hand car with the consent of a section foreman, defendant railroad company may show the limited authority of the section foreman under the rule of the company. Willis v. Atlantic, etc., R. Co., 120 N. C. 508, 26 SE 784. 6 Evidence of the habits and competency of an employee is admissible on the question of his negligence at the time of the accident complained of." Thus the intemperate habits of an employee may be shown in evidence to prove negligence on his part, nor is this limited to drunkenness at the time of acthereto, is admissible. is a voluntary agent, and professes San Antonio, etc., R. Co. v. Lynch, to have skill in driving; and he is (Tex. Civ. A.) 40 SW 631. employed in a business, which, for the safety of passengers, requires firmness and a high degree of skill. He is charged with a want of experience and skill, and how are these to be proved? May they not be proved by persons skilled in driving, and who have observed him drive? If, for instance, he is so ignorant of the duties he assumes to perform, as not to know how to harness the horses, or to handle the lines, may the fact not be shown? In what way could his incompetency be more satisfactorily established? His skill as a driver is often the gist of the action; and it is involved in the present case. In this view, he does not stand in the relation of a witness whose credibility is attempted to be impeached; but he stands in the place of the defendant, who is answerable for his want of skill and negligence. The question of skill is the point in issue, and is not collateral. May it not then be shown by proof of the fact, the same as any other material fact in the case? It is admitted that proof of negligence at any other time would not be proper, as it would not conduce to establish negligence at the time of the injury. But this is not the case as it regards a want of skill." McKinney v. Neil, 16 F. Cas. No. 8,865, 1 McLean 540, 544. [c] Custom of riding on plat form.-Evidence that decedent, a passenger, was in the habit of riding on the platform with knowledge that so riding was contrary to the carrier's rules is not admissible to prove the terms of the contract of carriage, since it has no tendency to prove that intestate was not a passenger. Jones v. Boston, etc., St. R. Co., 205 Mass. 108, 90 NE 1152. [d] On freight trains.—(1) Where plaintiff was injured in alighting from a freight train, evidence to show that it was the custom and usage for the freight trains to carry passengers is admissible. McGee v. Missouri Pac. R. Co., 92 Mo. 208, 4 SW 739, 1 AmSR 706. (2) In an action by a boy against a railroad to recover for injuries received while riding on a freight train contrary to the road's regulations, proof of a custom allowing boys to ride between stations is not admissible. Sands v. Southern R. Co., 108 Tenn. 1, 64 SW 478. 2. Northern Pac. R. Co. v. Marinovich, 189 Fed. 328, 111 CCA 60; Central of Georgia R. Co. v. Bell, 187 Ala. 541, 65 S 835; Chicago Union Tract. Co. v. Lundahl, 117 Ill. A. 220 [aff 215 Ill. 289, 74 NE 155]; Chicago, etc., R. Co. v. Huston, 95 Ill. A. 350 [aff 196 Ill. 480, 63 NE 1028]. 3. Collison v. Illinois Cent. R. Co., 239 Ill. 532, 88 NE 251. [a] Thus, an action for the death of intestate who was struck by a train, defendant's bulletins stating the time of arrival of freight trains were competent to show that the stock train which intestate was awaiting carried passengers who had mileage tickets, in connection with proof that he had such a ticket and went to the station to become a passenger. Collison v. Illinois Cent. R. Co., 239 Ill. 532, 88 NE 251. 4. Klinck v. Chicago City R. Co., 177 Ill. A. 165 [aff 262 Ill. 280, 104 NE 669, 52 LRANS 70. AnnCas1915B 177]; Harris v. Puget Sound Electric R. Co.. 52 Wash. 289, 100 P 838. 5. Stokes v. Saltonstall, 13 Pet. (U. S.) 181, 10 L. ed. 115; McKinney v. Neil, 16 F. Cas. No. 8.865. 1 McLean 540: Fuller v. Jamestown St. R. Co.. 75 Hun 273, 26 NYS 1078 [aff 148 N. Y. 741 mem, 42 NE 1093 mem]. [a] Driver of stagecoach.-On the issue as to the incompetency of the driver, evidence that at one time his lines were not properly fastened, and also that at another time he handled them unskillfully, was admissible. The court said: "A driver 6. Nashville, etc., R. Co. v. Messino, 1 Sneed (Tenn.) 220. [a] Engineer.-In an action for an injury alleged to have been caused by the reckless running of a train, evidence that the engineer in charge was heard to say before the accident that he would "make his engine make her time, or blow her to hell," is admissible against the company for the purpose of showing rashness or unfitness of the engineer. Nashville, etc.. R. Co. v. Messino, 1 Sneed (Tenn.) 220, 227. 7. Plummer v. Ossipee, 59 N. H. 55. 8. Louisville, etc., R. Co. v. McEwan, 31 SW 465, 17 KyL 406. [a] Illustration.-In an action against a railroad company for personal injuries by one passenger to another, on account of the alleged negligence of defendant in failing to put the passenger doing the injury off the train, it is error to strike out part of defendant's answer, alleging the known reputation of the conductor for courage and efficiency, and excluding evidence in regard thereto, especially where the efficient character of the conductor is made in the instructions one of the elements whereon the jury are told to find for defendant. Louisville, etc., R. Co. v. McEwan, 31 SW 465, 17 KyL 406. 9. Pennsylvania R. Co. v. Books, 57 Pa. 339, 98 AmD 229. Compare Oberndorfer v. Pabst. 100 Wis. 505, 76 NW 338 (holding that evidence of inexperience and incompetency of the operator of a passenger elevator 10 cident.1 But where it is shown that the employee was negligent on the occasion in question, and his competency is not attacked, evidence as to his reputation for ability, prudence, etc., is not admissible as not being pertinent.11 13 Care in selection of employees. Evidence as to the amount of care taken by the carrier in selecting its employees is not admissible on the question of their negligence,12 nor is evidence that the employee was discharged after the accident admissible for this purpose. But evidence that the carrier employed and retained an incompetent employee is admissible to show negligence on its part in that respect,14 as well as in respect to all the consequences of a failure of duty on the part of such employee.15 [§ 1440] (4) Circumstances Affecting Acts or Omissions of Carrier's Employees. Evidence of the is improperly admitted as raising a collateral issue, in an action for the death of a passenger caused, as alleged, by negligent operation of the elevator). 10. Ariz.-Hobson v. New Mexico, etc., R. Co., 2 Ariz. 171, 11 P 545. Ind.-Pennsylvania Co. V. Newmeyer, 129 Ind. 401, 28 NE 860. Mo.-Williams v. Missouri Pac. R. Co., 109 Mo. 475, 18 SW 1098. N. C.-Puett v. Caldwell, etc., R. Co., 141 N. C. 332, 53 SE 852. Pa.-Pennsylvania R. Co. v. Books, 57 Pa. 339, 98 AmD 229. [a] Thus where the complaint alleges that the accident resulted from the persons in charge of the train being intoxicated, evidence that the engineer was seen a number of times in a saloon near a station is admissible, in connection with evidence that he drank intoxicating liquors at another station a short time before. Pennsylvania Co. v. Newmeyer, 129 Ind. 401, 28 NE 860. 11. Missouri, etc., R. Co. v. Farris. (Tex. Civ. Á.) 126 SW 1174. 12. Augusta, etc., R. Co. v. Randall, 85 Ga. 297, 11 SE 706. 13. Schmitt v. Dry Dock, etc., R. Co., 3 NYSt 257. 14. Vicksburg, etc., R. Co. v. Patton, 31 Miss. 156, 66 AmD 552. 15. Jones v. Co-operative Assoc. of America, 109 Me. 448, 84 A 985, LRA1915E 745. V. 16. U. S.-Southern Pac. Co. Ward, 208 Fed. 385, 125 CCA 601. Ala.-Birmingham R., etc.. Co. v. Hunnicutt. 3 Ala. A. 448, 57 S 262. Colo.-Sanderson V. Frazier, 8 Colo. 79, 5 P 632, 54 AmR 544. D. C.-Metropolitan R. Co. V. Jones, 1 App. 200. Iowa.-Blumenthal v. Union Electric Co., 129 Iowa 322, 105 NW 588. Mass.-Powers v. Old Colony St. R. Co., 201 Mass. 66, 87 NE 192. Mo.--Spohn v. Missouri Pac. R. Co., 101 Mo. 417, 14 SW 880. N. Y.-Allen v. Dry Dock, etc., R. Co., 2 NYS 738. N. C.-Bedsole v. Atlantic Coast Line R. Co., 151 N. C. 152, 65 SE 925. Tex.-Missouri Pac. R. Co. v. Callahan, 12 SW 833; San Antonio Tract. Co. v. Davis, (Civ. A.) 101 SW 554; International, etc.. R. Co. v. Cruseturner, 44 Tex. Civ. A. 181, 98 SW 423; Gulf, etc., R. Co. v. Phillips, 32 Tex. Civ. A. 238, 74 SW 793; International, etc., R. Co. v. Foster, 26 Tex. Civ. A. 497, 63 SW 952. Vt.-Taylor v. Day, 16 Vt. 566. [a] Evidence held admissible to show negligence with respect to controlling crowds at a station. Southern Pac. Co. v. Ward, 208 Fed. 385, 125 CCA 601; International, etc., R. Co. v. Foster, 26 Tex. Civ. A. 497, 63 SW 952 (holding that in an action against a railroad company for injuries received near a station, the facts that defendant advertised an excursion, and that the train was conditions and circumstances existing at the time and place of the accident or injury is admissible for the purpose of proving or disproving negligence on the part of defendant or its employees in causing the injury complained of.16 Thus as bearing on the carrier's negligence, evidence is admissible which tends to show notice to its employees of the passenger's physical condition1 or danger at the time of the accident or injury,18 and which tends to show whether or not in view of such notice it did all that was practicable to prevent such an accident as occurred.19 Assault. Evidence of conditions and circumstances existing at the time is admissible in an action against a carrier for an assault on a passenger by an employee of the carrier,20 or by a fellow passenger." In an action for an assault by an employee, evidence is admissible which tends to 21 late, and a crowd had assembled at the depot, were material on the question of the amount of care and diligence required of defendant, and hence their admission was not error). [b] Evidence that plaintiff reported an employee's misconduct to the carrier as soon as he arrived home is admissible in an action against a carrier for misconduct of its conductor toward plaintiff and her companions, as tending to show that was aggrieved. San Antonio Tract. Co. v. Davis, (Tex. Civ. A.) she 101 SW 554. 17. Louisville, etc., R. Co. v. Bell, 166 Ky. 400, 179 SW 400; Louisville, etc., R. Co. v. Bowlds, 64 SW 957, 23 KyL 1202; Cutler v. Concord, etc., R. Co., 69 N. H. 641, 46 A 1051; Lewis v. Houston Electric Co., 39 Tex. Civ. A. 625, 88 SW 489, 112 SW 593. [a] Intoxication of passenger.(1) In an action by a passenger for injuries caused by the carrier, where the issue was that defendant knowing that plaintiff was intoxicated did not properly care for him as a passenger, evidence that plaintiff purchased beer shortly before the accident at a restaurant in defendant's passenger station kept by one under lease from defendant is admissible to show plaintiff's intoxicated condition, but not to impose additional duties on defendant in the care of plaintiff, nor to show that defendant was guilty of maintaining a nuisance which contributed to plaintiff's intoxicated condition. Cutler v. Concord, etc., R. Co., 69 N. H. 641, 46 A 1051. (2) Where in an action by a passenger the evidence was conflicting as to whether he was intoxicated when injured, and he testified that he had not been drunk for two years prior thereto, testimony was admissible that plaintiff had been intoxicated many times previous to the injury. Lewis v. Houston Electric Co., 39 Tex. Civ. A. 625, 88 SW 489, 112 SW 593. 18. Berry v. Louisville, etc., R. Co., 109 Ky. 727, 60 SW 699, 22 KyL 1410; Nute v. Boston, etc., R. Co., 214 Mass. 184, 100 NE 1099; International, etc., R. Co. v. Cruseturner, 44 Tex. Civ. A. 181, 98 SW 423; Bullock v. Houston, etc., R. Co., (Tex. Civ. A.) 55 SW 184. [a] Evidence held inadmissible. -Where plaintiff went into a car to seat his wife and children, and sustained injuries in leaving the car, in an action against the carrier to recover for his injuries a conversation between plaintiff and his wife at the entrance to the car, and not far from the conductor, was not admissible to show notice to the conductor of plaintiff's intention to leave the train before it started, in the absence of anything to show that the conductor heard the conversation, as it was no part of his duty to listen to such conversations. Berry v. Louisville, etc.. R. Co.. 109 Ky. 727, 60 SW 699, 22 KyL 1410. 19. Coy v. Boston El. R. Co., 212 Mass. 307, 98 NE 1041. 20. Alabama City, etc., R. Co. v. Sampley, 169 Ala. 372, 53 S 142; Cathey v. St. Louis, etc., R. Co., 149 Mo. A. 134, 130 SW 130; Fielder v. St. Louis, etc., R. Co., 51 Tex. Civ. A. 244, 112 SW 699; Berg v. Chicago, etc., R. Co., 146 Wis. 419, 131 NW 902. [a] Illustrations.—(1) Where in an action by a passenger for an assault by the conductor the evidence showed that the assault followed a wrangle concerning the failure of the passenger and his companions to leave the car at their destination, it is proper to show whether their failure to leave the car was due to their carelessness or to the conductor's failure to announce the station as tending to throw light on the contentions of the parties and to mitigate the damages, although neither reason for failing to get off would be conclusive on the right to recover. Alabama City, etc., R. Co. v. Sampley, 169 Ala. 372, 53 S 142. (2) In an action against a railway company for an assault by a brakeman on a passenger who attempted to board a train after it started, and an exhibition of whose ticket was demanded by the brakeman on the car steps, evidence that the passenger was crippled and thus prevented from boarding sooner is proper. Cathey v, St. Louis, etc., R. Co., 149 Mo. A. 11, 130 SW 130. (3) In an action for alleged injuries to a passenger by his being thrown from a train by a brakeman, evidence that the train carried a large crowd who were intoxicated, boisterous, and disorderly is properly admitted to explain the conduct of the trainmen. Berg v. Chicago, etc., R. Co., 146 Wis. 419, 131 NW 902. [b] Where it is claimed that the passenger's injuries were due to alcoholism and not to the assault, evidence of an isolated instance of intoxication several months before the assault is not admissible for that purpose. Fielder v. St. Louis, etc., R. Co., 51 Tex. Civ. A. 244, 112 SW 699 (holding that the admission over objection of evidence that the witness, the sheriff, saw plaintiff drunk on the street several months before the alleged assault, and threatened to remove him from his position as deputy if he continued to drink, together with the statements that plaintiff had then been drinking for several days and causing trouble. was prejudicial error). 21. Southern R. Co. v. Haynes, 186 Ala. 60, 65 S 339; Norfolk, etc.. R. Co. v. Birchfield, 105 Va. 809, 54 SE 879. [a] Identity of assaulting party. -In an action against a carrier for an assault on plaintiff by another passenger who falsely stated to plaintiff that he was a special officer of the carrier, where the difficulty arose from his ordering plaintiff to stop smoking in the car, and the con |