Defendant in error insists that this case is governed by that of Ohio & Mississippi Railroad Co. v. Muhling, 30 Ill. 9, 81 Am. Dec. 336. In that case the passenger had been in the employment of the road, and was neither prohibited from getting on the train, nor informed that it was against the rules for him to do so without a ticket or the payment of fare. Again, the company, in that case, seems to have owed the plaintiff for labor, which would have enabled them to deduct the amount of fare from the amount owing him. It was there said, that if a person was lawfully on the train, and injuries ensued from the negligence of the employés of the company, the passenger thus injured might recover.

On the part of plaintiff in error it is urged that railroad companies, being liable for the want of care of their officers by which passengers suffer injury, must have the power to make all reasonable regulations for the government of their employés, and the power to enforce them; that it is a reasonable regulation which prohibits persons from traveling upon their roads without purchasing a ticket or paying fare; that a person going on their road in known violation of such a rule, and by inducing the conductor to violate it, is not lawfully on the road, and the company should not be held responsible for an injury received by such person; that where a person actively participates in the violation of such a rule intentionally and knowingly, he does not occupy the same relation to the road as had he not known of the rule or not done any act to induce its violation.

It is manifest that if a person were stealthily, and wholly without the knowledge of any of the employés 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 knowingly 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? He thereby combines with the conductor to wrong and defraud his employer out of the amount of his fare, and for his own profit. In this case the evidence tends strongly to show that both defendant in error and her husband had money more than sufficient to pay their fare to Danville, and a considerable distance beyond that place. If this be true, and defendant in error swears they had, then they were engaged in a deliberate fraud on the company, no less than by false representations to obtain their passage free from Decatur to Danville, and thus defraud the company out of the sum required to pay their fare. In this there is a broad distinction from Muhling's Case, as in that case there was no pretense of fraud or wrong on his part. The court below should have given some one of the defendant's instructions which announced the view here expressed.

The evidence is not of the character to convince us that the judg

ment should stand, notwithstanding the erroneous instructions given or the refusal to give proper instructions. We have no doubt that the erroneous instructions given misled the jury in finding their verdict.

For the errors indicated, the judgment of the court below must be reversed and the cause remanded.

CONDRAN v. CHICAGO, M. & ST. P. RY. CO.

(Circuit Court of Appeals, Eighth Circuit, 1895. 67 Fed. 522, 14 C. C. A. 506, 28 L. R. A. 749.)

Plaintiff brings error.

CALDWELL, C. J.56 The case is stated by Judge Shiras, who tried it in the Circuit Court, in his charge to the jury, as follows:

"In the case now on trial before you it appears from the undisputed evidence in the case that on the evening of June 16, 1891, a passenger train on the defendant's line of railway was derailed at or near a bridge crossing the Coon river, not far from the town of Coon Rapids, in this state; that Henry Condran was on the train when it was derailed, and was instantly killed; that the plaintiff is the administratrix of his estate, and that she brings this suit to recover the damages caused to the estate of Henry Condran by his death, claiming that the said Henry Condran was a passenger on defendant's train, and that the derailment of the train, and consequent death of said Henry Condran, was caused by the negligence of the railway company. * * * If the deceased in fact had money with him, with which he could have paid his fare, but instead of paying the same, he intentionally misstated his situation to the conductor, and by false representation induced the latter to allow him to remain on the train, then it could not be said that he was rightfully upon the train, but he would be there in fraud of the rights of the company, and the legal relation of carrier and passenger would not in such case exist between him and the company. The company would then owe him no other duty than not to willfully or recklessly injure him, and, as there is no evidence in this case which would justify you in holding that the accident and consequent death of Henry Condran was due to recklessness or willfulness on part of the company, it follows that in case you find that said Condran fraudulently misstated the facts of his situation to the conductor, and as a consequence was allowed to remain on the train without paying his fare, then your verdict must be for the defendant. On the other hand, if the deceased had in fact paid his fare, or if, being without means, he fairly stated his condition and situation to the conductor, and the latter, in consideration of the statements made him, permitted Condran to remain on the train, then the relation ex

56 Parts of the statement of facts and opinion are omitted.

isting between Condran and the company would be that of passenger and carrier."

The only assignments of error which this court can notice are those which challenge the soundness of this charge.

* * *

The rule is well settled that where one gets on a passenger train with the deliberate purpose not to pay his fare, and adheres to that purpose, or if, being on the train, and having money with him with. which he could pay his fare, he falsely and fraudulently represents to the conductor that he is without means to pay his fare, and by means of such false representations induces the conductor to permit him to remain on the train without paying his fare, the relation of carrier and passenger and the obligations resulting from that relation are not thereby established between him and the company, and the company owes him no other duty than not to willfully or recklessly injure him. Railway Co. v. Brooks, 81 Ill. 250; Railroad Co. v. Michie, 83 Ill. 431; Railway Co. v. Beggs, 85 Ill. 84, 28 Am. Rep. 613; Railroad Co. v. Mehlsack, 131 Ill. 64, 22 N. E. 812, 19 Am. St. Rep. 17; McVeety v. Railway Co., 45 Minn. 269, 47 N. W. 809, 11 L. R. A. 174, 22 Am. St. Rep. 728; Robertson v. Railway Co., 22 Barb. (N. Y.) 91; Railway Co. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475; Prince v. Railroad Co., 64 Tex. 146; Railway Co. v. Campbell, 76 Tex. 175, 13 S. W. 19; Way v. Railway Co., 64 Iowa, 48, 19 N. W. 828, 52 Am. Rep. 431; Id., 73 Iowa, 463, 35 N. W. 525.

The law will do nothing to stimulate and encourage fraud and dishonesty, and that would be the effect of holding that a railroad company owed to one riding on its train under the conditions named the duties and obligations it owes to a passenger who has honestly paid his fare. Railroad companies are as much entitled to protection against fraud as natural persons. It is a matter of common knowledge, of which the court will take judicial notice, and of which the public are bound to take notice, that railroad passenger trains are operated to carry passengers for hire. They are not eleemosynary agencies. It is equally well known that the authority of a railroad conductor does not extend to the carrying of passengers without payment of the regular fare. But, if he had such authority, his assent obtained by the fraudulent means mentioned would confer no rights. One riding on a train by fraud or stealth, without the payment of fare, takes upon himself all the risk of the ride, and if injured by an accident happening to the train, not due to recklessness or willfulness on the part of the company, he cannot recover. The judgment of the Circuit Court is affirmed.57

* * *

57 In Austin v. Gt. Western Ry. Co., L. R. 2 Q. B. 442 (1867), the carrier charged half fare for children three years old. A passenger who did not know the rule took with her a child of three; the company let it ride free not knowing its age. The child recovered for negligent injury.

In Odell v. N. Y. C. R. Co., 18 App. Div. 12. 45 N. Y. Supp. 464 (1897), a carrier which issued a ticket good for visitors to the purchaser's family was

held to owe a duty of care to a person permitted to ride on the ticket, who presented it in good faith, though not a visitor within its meaning.

in Gary v. Gulf, etc., Ry. Co., 17 Tex. Civ. App. 129, 42 S. W. 576 (1897), a ticket holder who had taken a wrong train by mistake was held to be entitled to the care due a passenger while the train was stopped to put her off. Where a railroad by its own mistake received and carried baggage checked to go by another route, it was held bound to the exercise of ordinary care, and therefore liable for negligent damage. Fairfax v. N. Y. C. R. Co., 73 N. Y. 167, 29 Am. Rep. 119 (1878). But where a traveler by steamboat, under a mistaken belief that he was entitled to do so, checked his trunk by a competing railroad, which took charge of it supposing it to belong to a railroad passenger, it was held that the railroad was not liable for damage by negligence, though gross, because under no duty to take care. Beers v. Boston, etc., Co., 67 Conn. 417, 34 Atl. 541, 32 L. R. A. 535, 52 Am. St. Rep. 293 (1896).

Where a man checked his trunk by a railroad over which he had no ticket and did not travel, it was held that the carrier, being a gratuitous bailee, was not liable for nonnegligent loss. Wood v. Me. Cent. R. Co., 98 Me. 98, 56 Atl. 457, 99 Am. St. Rep. 339 (1903). And a like decision was reached where, though he had a ticket and checked his trunk by means of it, he did not intend at any time to travel on the ticket. Marshall v. Pontiac, etc., Co., 126 Mich. 45, 85 N. W. 242, 55 L. R. A. 650 (1901). But the carrier has been held liable where the owner had a ticket and intended to use it on a later day. McKibbin v. Wis. Cent. Ry., 100 Minn. 270, 110 N. W. 964, 8 L. R. A. (N. S.) 489, 117 Am. St. Rep. 689 (1907). And where the carrier knew that the owner did not inAdger v. Blue Ridge Ry. Co., 71 S. C. 213, 50 S. E. 783, (1905).

tend to use it at all. 110 Am. St. Rep. 568

CHAPTER II

EXCUSES FOR FAILURE TO TRANSPORT AND DELIVER

HADLEY v. CLARKE.

(Court of King's Bench, Trinity Term, 1799. 8 Term R. 259.) Assumpsit for breach of a contract of carriage. A verdict was found for the plaintiff, subject to the opinion of the court upon a case stated in which the following facts appeared:

In June, 1796, plaintiff shipped goods on board defendants' ship Pomona at Liverpool for a voyage to Leghorn. The ship sailed from Liverpool with goods of the plaintiff and of other shippers, and went to Falmouth to join convoy for the voyage to Leghorn. While she was at Falmouth, the British government, by an order in council of July, 1796, laid an embargo on vessels bound to Leghorn. By an order in council of August, 1796, such vessels were freed from the embargo so far as to permit them to return to their ports of loading and to discharge their cargoes. In June, 1798, defendants notified plaintiff that unless he chose to have his goods landed at Falmouth, they would be taken to Liverpool and discharged there. In August, 1798, the ship sailed without plaintiff's consent to Liverpool, where by agreement plaintiff received his goods without prejudice to his right of action. In October, 1798, the embargo was taken off.

LORD KENYON, C. J.1 * * * It is admitted that an embargo, being imposed during the war, was a legal interruption of the voyage; but it would be attended with the most mischievous consequences if a temporary embargo were to put an end to such a contract as this, because, if it were to have that effect, it must also have the effect of putting an end to all contracts for freight and for wages. The difficulty in this case is to draw the line. The defendants contracted with the plaintiff to carry his goods to Leghorn; that contract was certainly obligatory at the time when it was made; and it must continue to be binding unless it has since been put an end to. Then, at what time was it put an end to? Was it put an end to during the ship's stay at Falmouth, or immediately after she sailed for Liverpool? It would afford an argument against the defendants in this particular case that they kept the goods on board during all this time, and thought they were bound by this contract. However I do not decide this case on that ground, but on the general ground that a tem

1 The statement of facts has been rewritten, and parts of Lord Kenyon's opinion have been omitted.

GREEN CARR.-8