Facts. got on the freight train, between two freight cars, for the purpose of going to Kansas City; that he had no ticket, and no money to pay his fare; that he had been working in Galena, Cherokee county, Kansas, and had been sick, and was beating his way home to Kansas City on the railroad. When the train started, and before it reached the station at Olathe, a brakeman passing over the train discovered the boy on the draw-head between the cars, and he was asked by the brakeman where he was going, and if he had any money to pay his fare; and the boy told him he was going to Kansas City, and was without any money, and could not pay fare. The brakeman then directed him to get off the train. He said he would if they would slow up or stop the train. He was then informed by the brakeman that the train was going slow enough for him to get off, and that he must jump off the train. The boy then climbed into the ladder on the side of the car. The brakeman stepped from the car he was on to the end of the car where the boy was, and told him to get off or he would throw him off. In obedience to this demand, he jumped off the train, and in falling his leg was caught under the wheels of the car, and his foot and ankle crushed. He was picked up by a man and carried to a hotel, and it was found necessary to amputate his leg between the knee and ankle. ment. The evidence does not disclose what the duties of a brakeman are on the defendants' road. We presume, in the absence of a rule defining his duties, that under the Scope of brake general scope of his employment as a servant of man's employ- the company on the train, concerned in its management, and aware of the fact that a person who got upon the train with the intent to ride thereon, without paying fare, was a trespasser, and the implied authority in such case, is an inference from the nature of the business, and its actual, daily exercise according to the common observation and experience. Added to this, the testimony of the brakeman, who answered, when asked how it happened, that he stood by and let Long, another brakeman, do all the talking with this young man: "I was to keep them off of my end of the train, and he was to keep them off of his." man was act Assuming that the brakeman had authority to put trespassers off the train in a lawful manner, yet defendant insists that if the act was done as defendant claims, and Same-Brake the boy was forced off the train while it was running at a speed of eight miles per hour, on a dark night, it cannot be said that the brakeman was acting, in so doing, under the scope of his employment so as to make the company liable. In this the defendant ing within. is mistaken. Assuming the case made by the plaintiff, the act complained of was reckless, wanton, and illegal; and, if done within the scope of his employment and authority, he was acting for the defendant, and not for himself. The removal of trespassers from the train was within the implied authority, and became the duty of the servants in charge of the train; and the fact that, in so exercising that right or duty, they acted negligently and wantonly, and caused the boy to jump off the train while running at a speed unsafe for him to get off, and he is injured, will not exonerate the defendant. Ramsden v. Boston & A. R. Co., 104 Mass. 117; Higgans v. Watervliet Turnpike Co., 46 N. Y. 23; Northwestern R. Co. v. Hack, 66 Ill. 238; Kline v. Central Pac. R. Co., 37 Cal. 400. Ejection of used. The defendant had the right to put him of from its cars, and in doing so could use such force as was necessary to eject him, but in so doing must exercise the right with ordinary care and prudence on its part, and, if the train was moving at such a rate of speed as to ren- trespassersder it unsafe, and the night was dark, they must Care must be stop or slow up the train; and the mere fact that the boy was on the train as a trespasser was not such negligence as to relieve the defendant from this obligation, and gave its servants no license to negligently and wantonly eject him in a manner liable to do him great bodily harm. Morgan v. Commissioners Miami Co., 27 Kan. 89. And it could make no difference whether he was ejected by actual force or by threats, if he jumped from the train in obedience to a command of the brakeman. He being a boy 15 years old, he would not be expected to use that degree of judg ment and discretion that would be expected and required of an adult. He believed, and he had a right to believe, that force would be used to eject him; and when he saw the brakeman coming towards him, threatening to throw him off, he cannot, under the circumstances, be charged with negligence for not having waited longer. Kline v. Central Pac. R. Co., 37 Cal. 404; Moulton v. Aldrich, 28 Kan. 312. negligence no Again, he was assured that it was safe to get off the train, and that it was not necessary to slow up. Relying upon either, the defendant cannot be heard to say that his injury was caused by his own negligence. Contributory What he was guilty of was in getting on the train defence. without being prepared to comply with the regulations of the company in relation to the carrying of passen-gers, and trying to beat his way on the train; but, at the time of the injury, defendant well knew of this negligence, and was informed of the facts which showed him to have been a trespasser on the train without right, save such right as the defendant owed even to trespassers. And we believe the true rule and doctrine to be that a railroad company is bound to exercise their dangerous business with due care to avoid injury to others, even to the protection of a trespasser who is not guilty of contributory negligence. Beems v. Chicago, R. I. & P. R. Co., 58 Iowa, 155; s. c., 6 Am. & Eng. R. R. Cas. 222; Keffe v. Milwaukee & St. P. R. Co., 21 Minn. 207; Kansas City R. Co. v. Fitzsimmons, 22 Kan. 686. The defendant complains of the instructions given by the court to the jury. Some of these objections we deem of not sufficient importance to receive comment. Others are covered by the general discussion of the questions in Same-In- this opinion. The defendant particularly comstruction. plains of a part of the sixth instruction, which is as follows: "And I charge you that the plaintiff's right to recover is not affected by his having contributed to the injury, unless he was at fault in so doing." The general rule is that one cannot recover for an injury if he is guilty of negli gence directly contributing to the injury. Yet, under the facts in this case, if the plaintiff was guilty of negligence, it was in boarding the defendant's train without first procuring a ticket, or having money to pay his fare; in other words, in attempting to beat the company, and be transported for nothing. Technically speaking, the jumping off the train by the plaintiff was negligence; and this instruction, in speaking of the plaintiff's negligence, was considering this class of negligence. In fact, the only claim of negligence relates to these two acts of the plaintiff. We admit that these acts establish negligence taken and considered by themselves alone, unexplained by circumstances and motives, where those acts result in the injury. In the first instance, the negligent act of the plaintiff was discovered by the defendant before the injury; and, after this discovery, by the slightest care on the part of the defendant the injury could have been prevented. Then, can it be said or claimed that, by reason of this negligent act, the plaintiff was injured? As to the latter, it was caused by the acts of defendant's servants while in the discharge of their master's business. If the plaintiff had voluntarily jumped from the train when discovered, while the train was in dangerous motion, or doing so without sufficient provocation or ground for alarm, or in anticipation of danger where none existed, or the failure to exercise reasonable care and caution, situated as he then was, and the like, would not justify or excuse him. So the mere negligent act alone, when shown, will not always determine the right of recovery. The act may exist, and yet be the result of no fault of him who commits it. We see no error in this instruction. Nelson v. Atlantic & P. R. Co., 68 Mo. 593; City of Wyandotte v. White, 13 Kan. 192. required of The defendant again presents a single sentence from the ninth instruction, and claims it to be error: "Plaintiff was cnly required to exercise ordinary care to avoid injury." The ninth instruction, taken altogether, Degree of care we think was properly given. It was as follows: plaintiff. (9)" Plaintiff was only required to exercise ordinary care to avoid injury; but this requisite could only be complied with by the exercise of that degree of caution which persons of his age and intelligence and of ordinary prudence would use under the same conditions of danger, and with like knowledge of the situation." This instruction, viewed in the light of the facts, properly states the law applicable to the facts. The plaintiff was on a train, and a trespasser. He was entitled to no protection from an injury resulting from his own acts or conduct, and could claim not protection from injuries received while so trespassing on the defendant's train, resulting from the ordinary and useful operation and management of the defendant's train; but to meet and protect himself against the wrongful acts of the defendant, he was not required to exercise more than ordinary care, considering his age, his situation and condition and surrounding dangers. When he became a trespasser upon the train, he had no right to believe that, by reason of that fact, he was to be negligently or wantonly expelled, or ejected in a manner that would result in serious injury to himself. Townley v. Chicago, M. & St. P. R. Co., 53 Wis. 626; s. c., 4 Am. & Eng. R. R. Cas. 562. ings. In conclusion, defendant insists that the special findings of the jury show passion towards the defendant. We have carefully examined the special findings, and find no evidence of this charge; but, on the contrary, find all Special findof the special findings supported by some evidence. True, upon some questions the evidence was conflicting; but because the jury believe one set of witnesses, and disbelieve others, is not of itself evidence of passion or prejudice. Kansas Pac. R. Co. v. Kunkel, 17 Kan. 145; Whitaker v. Mitchell, 58 Cal. 362. We find no error in the record, and therefore recommend that the judgment of the court below be affirmed. BY THE COURT. It is so ordered; all the justices concurring. Negligence in the Expulsion of Trespassers from Trains.-See note, 31 Am. & Eng. R. R. Cas. 376, where the cases are collected. WAY v. CHICAGO, ROCK ISLAND AND PACIFIC R. Co. (Iowa Supreme Court. December 15, 1887.) Personal Injuries-Pleading-Redundant Averments.-A person having by statute a claim against a railroad company for damages for personal injuries caused by gross negligence on the part of the company's servants, although upon a train under such circumstances that the relation of carrier and passenger did not exist, an allegation in an action for injuries caused by the company's gross negligence, that the plaintiff was a passenger is merely redundant, and will not defeat the plaintiff's recovery. Same-Trespasser on Train-Gross Negligence.-In an action for damages for personal injuries under a statute giving a right of action to persons injured while upon railroad trains, although the relation of carrier and passenger did not exist, if the injury was caused by the gross negligence of the company's servants, the company is liable to a person who was injured while in the caboose of a freight train without the knowledge of the engineer or brakeman, if they knew or had reason to believe that the caboose was occupied, and yet moved the train recklessly or negligently without regard to the safety to those who might be in the caboose, and in such a manner that injury to them might reasonably be expected as the direct consequence thereof. ADAMS, C.J., dissents. Same-Instruction-Verdict Contrary to. If, in such an action, the court have instructed the jury that plaintiff could not recover unless, in addition to the fact that a collision in the course of the coupling of the train was of unusual violence, he had proven some circumstances which had tended to show that the engineer or fireman acted negligently in making the coupling, the supreme court will, on appeal, set aside a verdict which disregards such instruction even though the instruction be erroneous. APPEAL from Circuit Court, Mahaska County. Action by Richard F. Way, administrator, to recover damages for personal injuries sustained by his intestate while travelling in the caboose of one of defendant's freight trains. Defendant appeals from a verdict and judgment for the plaintiff. The opinion states the case. TS. Wright and Lafferty & Morgan for appellant. REED, J.-I. The suit was instituted by the intestate in his life-time. It was alleged in the petition that he was a passenger on the train at the time of the injury, and that the em |