ployees of defendant in charge of the train, while switching, caused the cars to collide violently, whereby he was thrown with great violence against the cupola platform in the caboose in which he was at the time, inflicting the injuries complained of. On the trial of the issue joined on these allegations, it was proven that the intestate was riding on a commutation ticket which had been issued to another person, and which contained a condition against the assignment thereof, and that the conductor of the train, when he took up the coupons for the fare of the intestate, had no knowledge that he was not the person named in the ticket. On appeal it was held by this court that, upon that state of facts, the relation of the carrier and passenger was not created between the parties, and consequently that defendant could not be held liable on proof of that slight degree of negligence upon which it would have been chargeable if that relation had existed. See Way v. Railway Co., 64 Iowa, 51. When the cause was remanded, plaintiff filed an amendment to his petition, retaining the allegations of the original petition, and alleging, in addition thereto, that the injury was caused by the gross negligence of the employees in charge of the train. On the second trial the proof as to the circumstances under which the intestate was on the train was the same, and counsel for the defendant, by motion to direct a verdict and instructions as requested, asked the circuit court to rule that the petition was unproved in its general meaning. The position of counsel is that, as it was distinctly averred in the petition that the intestate was a passenger on the train at the time of the injury, there could be no recovery without proof of that fact, and consequently, as there could be no pretense under the facts proven, and the former holding of this court, that the relation of carrier and passenger existed between the parties at the time of the injury, the court erred in refusing to direct the jury to find for defendant. But we think this position is not maintainable; for, while the defendant would have been liable if intestate had been a passenger, and the injury had been occasioned by but slight negligence on its part, it would also, under the statute (Code, § 1307), be liable, even though that relation did not exist, if the injury was caused by the gross negligence or mismanagement of the employees in charge of the train; so that the allegation that he was a passenger was redundant if plaintiff relied upon the averment of gross negligence, as, also, was that averment if he relied upon the allegation that intestate was a passenger. The petition, then, alleges two states of fact, upon either of which defendant would be liable, and some of its averments, while material to one of these, are redundant as to the other. And plaintiff was entitled to re

cover if he had established either of them, even though he had failed to prove the allegations which as to it were redundant. Possibly he could have been required, upon proper motion, to strike out one of the averments, or to plead the two states of facts in separate counts; but no such motion was made. Very clearly, we think, his right of recovery was not defeated alone by the failure to prove the allegations that the intestate was a passenger at the time of the injury.

2. The train was at Otley when intestate received the injury. The engineer and a brakeman were engaged in switching at the time. The caboose and 11 freight cars were left standing on the main track, while a number of cars were being cut out of the train and thrown upon a side track. When this work was done, and the engine and remaining cars were backed up to be coupled to those standing, they struck with such force that the intestate, who was standing in the caboose, was thrown against the corner of the platform of the cupola by the concussion, and sustained the injury complained of. Neither the engineer nor the brakeman knew that he was in the caboose. The defendant asked the circuit court to instruct the jury that, before they could find for plaintiff, they must find from the evidence that the employees in charge of the train were guilty of negligence so gross as to amount to willfulness, and that a mere failure to exercise ordinary care in handling the train would not be sufficient; but that there must have been such conduct as indicated an intention to handle the train as they did, knowing when they did so that it would result in injury to the deceased. The circuit court refused to give the instructions asked. It told the jury, in effect, however, that, while willfulness or an actual intent by defendant's employees to injury the deceased, was not an element of plaintiff's cause of action, yet he would not be entitled to recover unless he had shown that the act which caused the injury was grossly negligent. It also told them that, if the employees who were engaged in moving the train knew or had reason to believe that the caboose was occupied, and yet moved it recklessly or negligently, without regard to the safety of those who might be in the caboose, and in such a manner as that injury to them might reasonably be expected as the direct consequence thereof, and deceased was injured thereby, defendant was liable. In so far as the instructions hold that there could not be a recovery, unless it was shown that the act complained of was grossly negligent, they are favorable to defendant, and we need not inquire as to their correctness; and we are of the opinion that the circuit court rightly refused to instruct, that an actual intent to inflict an injury must be shown, to entitle the plaintiff to recover. Such

intent is not necessarily an element of gross negligence. An act may be committed without any specific intent to injure another, and yet be done with such disregard of the safety of others as to render it grossly negligent.

It may be conceded that, as the intestate was in the caboose without right, defendant owed him no special duty, and that its employees were not bound to ascertain whether he was there before commencing the work in which they were about to engage. Neither were they required to govern their conduct with reference to the possibility of his being there. But the caboose was liable at any time to be occupied by passengers, and the employees were required to take that fact into account in the performance of their duty, and govern their conduct with reference to it. If they performed the duty in a manner so unusual or reckless as to endanger the lives or safety of persons who might be rightfully in the caboose, they were guilty of negligence; and if, as the direct consequence of such negligence, the deceased was injured, the company is liable, notwithstanding the fact that he was in the caboose without right; for, by the statute referred to above (Code, 1307), it is made liable for "all damages sustained by any person. . . in consequence of the neglect of agents, or by any mismanagement of engineers or other employees."

3. The circuit court gave the following instruction to the jury: "The mere fact, if it be a fact, that the cars were thrown together with more than usual force, is not of itself sufficient to establish the defendant's negligence; and while it is proper for you, in determining the question of negligence, to take into consideration the force of the collision, yet, though it may have been of unusual force, you are not to presume from this alone that it was the result of carelessness or gross negligence; but the acts of carelessness or negligence must be established by a preponderance of the testimony. If the shock to the caboose was caused by the failure of the engineer or brakeman to properly calculate the weight of the train, the distance to be travelled, or the amount of slack in the train while honestly endeavoring to make a safe and proper coupling, the plaintiff cannot recover; and it is for you, as reasonable men, to determine from all the evidence whether or not the defendant's employees were guilty of such negligence as, under these instructions, entitles the plaintiff to recover." The clear meaning of this instruction is that plaintiff was not entitled to recover unless he had proven some circumstance in addition to the fact that the collision was of unusual violence, which tended to show that the engineer or fireman acted negligently in making the coupling. We are clearly of the opinion that the jury disregarded this instruction. We have

34 A. & E. R. Cas.-19.

found in the record no evidence which tended in the slightest degree to show negligence in the operation of the train, except the fact of the violence of the collision; nor have counsel pointed out any such evidence. Indeed, the evidence, aside from that which tended to show that the cars went together with unusual violence, was to the effect that the coup ling was made in the usual manner, and that the shock was occasioned by causes which could not be guarded against. We will not inquire whether the instruction is correct or not. It was given as the law of the case, and should have been respected by the jury. A verdict which has been found against the instruction of the court should be set aside, even though the disregarded instructions should be erroneous. Upon the theory adopted by the circuit court on this question, the cause should have been taken from the jury; for, upon that theory, there was nothing for them to pass upon. But having submitted the question to them, their verdict should have been set aside as contrary to the instruction. The judgment must be reversed.

ADAMS, C.J., dissents from the holding in the second paragraph of the opinion.

SEEVERS, J., took no part in the determination of the case..

ATCHISON, TOPEKA & SANTA FE R. Co.

V.

GANTS.

(Kansas Supreme Court, February 11, 1888.)

Passengers-Through Trains-Regulations as to Stoppages.-A railroad company may adopt a regulation that one of its through or fast trains, running regularly on its road, shall only stop at certain designated stations or places.

Same-Duty of Passenger-Inquiries as to Stoppages. It is the duty of a person about to take passage on a railroad train to inform himself when, where, and how he can go or stop, according to the regulations of the railroad company.

Same-Trespasser-Refusal to Pay Fare.-Where a person purchases a railroad ticket for a designated station upon a railroad, without making any inquiries or ascertaining what train stops at the station to which he desires to go, and subsequently takes his seat in a car of a train which,

according to the regulations of the company, does not stop at the station for which he has the ticket; and such person refuses to pay his fare, on demand of the conductor, to the next station at which the train is to stop, and also refuses to leave the train when requested so to do by the conductor after he has stopped the train at a suitable place for that purpose, such person is a trespasser upon the train.

Same-Ejection.-A trespasser may be ejected from a train after it has stopped at a place other than a depot or station, provided care is taken not to expose his person to serious injury or danger; but, in such an ejection, the railroad company is not required to have consideration for the mere convenience of the wrong-doer.

Same-Excessive Violence-Resistance. The conductor and train men of a railroad train have the right to eject a trespasser from the train at any suitable place, but in doing so they should not use unnecessary force or excessive violence; if, however, such a person forcibly resists ejection, he cannot recover for the force used in overcoming his resistance, where such force is without intention on the part of the conductor or train man to commit unnecessary injury. In such a case the railroad company is only liable for such unnecessary force or excessive violence as is wilful, wanton, or malicious.

Same-Mistake of Agent Damages. When a person makes a mistake in taking a seat upon a train which does not stop at the place he desires to go, and fare is demanded of him upon the train by the conductor to the first station at which the train is to stop, and he is able to pay the same, but refuses so to do, and then the conductor stops the train and requests him to leave or pay, he should either pay his fare or get off. If his mistake was induced by the ticket agent of the company, then the extra fare which he pays is an element of damages, in addition to such as are occasioned by his being carried beyond his destination.

Same-Ejection-Refusal to leave Train.—A person upon a railroad train cannot insist that the conductor shall permit him to ride without a proper ticket for that train, in violation of the regulations of the company. No one has a right to resort to force to compel the performance of a contract, and therefore where a person upon a train by mistake of the local ticket agent has a ticket to a station that the train does not stop at, he must either pay the extra fare demanded or get off when ordered so to do and cannot invite force in his ejection or removal, merely to make a case against the company or to increase his damages.

Same-Profane Language-Evidence.-A plaintiff was ejected from a railroad train, and evidence was offered tending to show that before his ejection he used vile, obscene, and profane language in a car filled with passengers, including many women and children. Upon his part, he introduced two witnesses, one of whom testified "that he never heard him use half a dozen oaths in his life," and the other that he never heard him use obscene language in public, but might have heard him make use of an oath some time, but not frequently,' Held, that such latter evidence was incompetent.

Same-Conductor-Branch Road-Authority.-A conductor upon a branch road, or connecting road of the same railroad company, in collecting fares, taking up tickets, and giving information to the passengers on his own train, represents the company as to his own route, but does not represent the company in giving information as to the running and operation of the trains upon the main line with which he has no employment. Same Ejection-Passengers Assisting Conductor-Use of Violence.Where a person is removed from a railroad train with the assistance of some of the passengers, and wilful, wanton, and malicious force is used in the ejection by the passengers assisting, the railroad company may be