Florida Southern Railway Co., Appellant, vs. Walter J. Hirst, Appellee, 30 Fla. 1

Raney, C. J.: This is an action to recover damages received by Walter J. Hirst in a collision between two trains on appellant’s railroad, Hirst being on a passenger train, which was on its

schedule time, and the other train being a special, or extra, train loaded with iron rails. The rule as to negligence announced by this court in Louisville & Nashville Railroad Co. vs. Yniestra, 21. Fla., 700, is that notwithstanding a person may be guilty of a negligent act from which injury results to another, still if the party injured has by his own negligence contributed to his receiving the injury, he can not recover damages from the other party for such injury. The injury must have been caused solely by the negligence of the former party to entitle the latter to recover.

This decision, which we see no reason to •disturb, necessarily, even though impliedly, repudiates the doctrine of comparative negligence, which has found favor in the Illinois and other courts ; and it dispenses with the necessity of our noticing the citations from those States made by appellee’s counsel. The injury in question was received prior to the passage of the act of June 7th, 1887,

Chapter 3744, Laws •of Florida, and hence the provision of the first

section of this statute as to diminishing damages in proportion to the amount of the default of the plaintiff, where both parties are at fault, has no application.

There is in the cause before us testimony to the effect that ITirst on boarding the train got on the passenger car; and that a rule of the Florida Southern Railway Company, appellant, forbade passengers from riding in any •other than passenger cars, or, consequently, in the express oar, in which car Hirst had gone and ivas at the time of the accident, he being about six feet from the fore end of it, and sitting on the iron express box ; and that the plaintiff knew of such rule ; and also to the effect that this car was next to the engine, and was a more dangerous place than the passenger cars, and was neither set apart as, nor was it in fact, the place where, passengers usually rode, and was not arranged for them, nor had any seats, but was for the use of the •express company.

Also that the plaintiff had ridden in the express car previously to the trip on the day of the accident in question, and that the conductor had been in there with him a short time, and that plaintiff had gone in there with the conductor and by his permission, or with his, at least, tacit consent; and tending to show that the conductor also knew that the plaintiff was in this car at the time of the collision between the passenger train and the special train loaded with iron rails.

It was also testified that there was ample room in the passenger car, and that the plaintiff would not have been injured if he had been in the passenger car, and that he and the express agent were the only ones injured. There was no testimony tending to show that the conductor attempted to enforce the rule, or even suggested to the plaintiff the advisability of its observance, although the conductor says that plaintiff was not in the car by his permission. Hirst had not paid any fare, nor had the conductor applied to him for it.

Exceptions taken by the defendant to charges given to the jury, and to the refusal of one asked by the defendant, involve an inquiry into the legal effect of a railroad company forbidding passengers to ride in parts of the train set apart for other purposes, and naturally more dangerous than passenger cars, and of the power of conductors to waive such rules. In Railway Co. vs. Moore, 49 Texas, 31, the deceased, when he received the injuries from which he died, was riding on a freight train with the knowledge and consent of the conductor, but whether he had paid fare, or had a pass or permit, was not shown.

He was the' only person, except the employes of the company, on. tiain, and prior to a month or six weeks before his death, had run on the company’s road for a year or two as an engine driver, and knew that passengers were not allowed to travel on the company’s freight trains, and that officers in charge of such trains were forbidden to allow parties to ride on them without a special pass from the general superintendent of the road, which passes w'ere not given, in view of the increased risk, without a release of the company from liability in cases of accidents to passengers.

The decision of the court was that a regulation that freight and passengers shall be carried on separate trains, is-reasonable, and highly salutary to both the company and the public ; and no one has the right to demand that he shall be allowed to ride on trains devoted exclusively to the carriage of freight, when the company makes other and suitable provisions for the transportation of passengers ; and that a party who in violation of such regulation, and without the consent of the company, forces himself into one of its freight trains cannot hold the company responsible to him as passenger, or recover of the company for injury thus contributed to by him while thus wrongfully on the train.

That while it might be true that when the company should, notwithstanding such a regulation, habitually permit persons to travel on its freight trains it would be liable to such passenger the same as if he were on a regular passenger car ; still when there is such a regulation, and there are no cars attached to freight trains except those ordinarily accompanying trains exclusively of this character, or only such cars as by their appearance or the manner in which they are fitted up, cannot be regarded as inviting persons on freight trains as passengers, the burden of proving that the party injured on such a train was justified in going on it as a passenger is upon him ; and the conclusion of the court was that the evidence showed that the conductor did not have authority to waive the regulation, and that the deceased must have known this.

In Prince vs. I. & Gr. N. R. Co., 64 Texas, 144, the injuries of the plaintiff were alleged to have been received through the negligence of defendant’s employes while he was riding on a hand car on which lie was invited to ride, and on which he was received as a passenger, and that the company sometimes used such car for the transportation of passengers invited to travel on it by the proper agents of the company free of charge; and the questions arose on a demurrer to the petition.

The order overruling the demurrer was affirmed, and it was held, that a railway company is liable in damages to one who is injured by the neglige nee of its agents while traveling on a hand ear of i he company, on which he had been invited to ride, bv the agent of the company in charge of the car freo of charge, it appearing that such a car was cometimos used by the company for the transportation of passengers, and not shown that any regulation of the company prohibited traveling on such a car. In the opinion, the effect of the decision in Hallway Co. vs.

Moore, supra, is stated to be: That the question whether or not a passenger is lawfully on a train does not depend necessarily upon the purposes to which the train is usually devoted ; if, however, the train is usually employed in the transportation of passengers, a person who has paid his fare, or has been invited to ride free of charge, is presumed to be lawfully on the train.

That if by the rules of the company passengers are expressly forbidden to be carried upon particular trains, the presumption is that any one claiming to be a.passenger upon such a train is an intruder, and without lawful right to be there ; but this presumption may be rebutted by showing that, though the rules forbid the transportation of passengers on such trains, yet, with the knowledge of the company, and without objection on its part, persons are habitually permitted to take passage on them.

That 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 rule on his part would be a disobedience of the orders of his superiors. The case of Gulf, Colorado & S. F. Ry. Co. vs.

Campbell, 76 Texas, 74, was one in which the plaintiff sued for personal injuries suffered when upon a freight train, and there was evidence that he was refused passage by the conductor who told him he had no authority to carry passengers and could not; but that subsequently plaintiff was given permission to board the train by a man who stood on the platform and had a lantern in his hand, and in reply to the question, if he had charge of the train, answered affirmatively.

It was held that plaintiff’s presence on the train was not with the company’s consent,- and that he contributed to his injury, and among the charges held to have been improperly refused was one embodying what is set out above in the last three sentences relating to the Prince case. In Robertson v. N. Y. & E. R. Co., 22 Barbour, 91, a railroad company by its printed rules and regulations prohibited its engineers from allowing any one, not in its employ, to ride on the engines.

The plaintiff applied to the engineer to ride upon his engine, and was informed that it was against the rules of the company to permit it, but finally consented, and plaintiff rode there, without the knowledge of the conductor, and without paying fare; and it was held that the consent of the engineer conferred no legal right, and that the plaintiff, as he was not lawfully on the engine, was a wrong-doer, and that he could not recover damages for injuries incurred, through the negligence or want of skill of the defendant, while he was riding there; and, further, that the onus was upon, the plaintiff to show that the engineer had authority to permit him to ride on the engine, the presumption being that he had no right to be there, whether he paid fare or not.

In the opinion it is said: “The plaintiff, without information on the subject from any of the defendant’s agents or servants, had no right to presume that the engineer had authority from the defendants to permit him to ride upon the engine, especially as he paid no fare. The presump>iion was against, his right to be upon the engine, whether he paid fare or rode free. The engine is not the place where even that class of passengers who pay no fare usually ride.” Eaton vs. Delaware, L. & W. R. R. Co., 57 N.

Y., 382, isa case in which it in held that where a railroad company makes, as it lias the right to do. a complete separation of freight and passenger business, a freight conductor has such general authority only as is incidental to the business of moving freight, and no power as to the transportation of passengers; and notice of this limited authority will be implied from the nature and apparent division' of the business.

It was further decided that the presumption is, that a stranger riding on a freight train is not legally a passenger, and. is not lawfully upon the train, and no liability for negligence- can be imposed upon the company as to him, unless the special circumstances of the case rebut this presumption. The plaintiff was invited by the conductor of a coal train on defendant’s road, to ride in the “caboose,” with, a promise to get him employment as a brakeman.

No passenger car was attached to it, but, in addition to the coal cars, only the “caboose,” for carriage of train implements and the accommodation of the train employes. Through {he negligence of the defendant’s employes the train was run into by another, and plaintiff, while riding in the caboose, was injured. 33y a regulation of the defendant, printed for the use of the employes, passengers were forbidden to ride on coal trains, but of this plaintiff had. no actual notice. It did not appear that passengers were permitted to ride, even occasionally, in the caboose.

The trial court instructed the jury that if the plaintiff was upon the train-with the assent of the. conductor, and without being informed of the regulation, the defendant was liable; but the conclusion of the Court of Appeals was that this was error; that there was nothing in the attendant circumstances indicating any apparent authority in the conductor to create between the parties the relation of passenger and carrier, or to make an arrangement for plaintiff’s employment as a brakeman, and that the facts did not establish that the plaintiff was lawfully on the train.

The same rule as to the presumption that persons riding upon trains which are palpably not designed for the carriage of passengers is announced in Waterbury vs. N. Y. C. &II. R. R. Co., cited below. Pennsylvania R. Co. v.s Langdon, 92 Penn. St., 21, presents a case in which one Langdon died from injuries received in a collision of trains, such collision resulting from a misunderstanding of orders by the conductor of the train on which Langdon was.

On boarding the train he went immediately to the baggage car, and was engaged in conversation with the baggage master when the collision occurred, the train having proceeded but a short distance in a brief period of time. He was in the employ of the defendant company as a night inspector of locomotives at the outer Pittsburgh depot of the Pennsylvania Railroad, and was not at work on the branch road, the Western Pennsylvania Railroad, operated by defendant company, on which branch road he was killed.

He was riding on a .commutation ticket, such as were ordinarily sold to passengers, and is accorded the position of a passenger, in the opinion. He lived on the line of the Western Pennsylvania Railroad, and was in the habit of riding to and from his home daily on that road. When injured, he was in the baggage car contrary to a printed notice posted in it forbidding any passenger from riding therein. It appeared that no harm would have occurred to the deceased, had he gone into any other car on the train.

The defense relied on was that he was in the baggage car in violation of the rule of the company, and with positive knowledge, as a railroad employe, that he had gone into a forbidden place, and was there at his own peril, and that by this unlawful act, he had been the occasion of his death, and was guilty of contributory negligence. Plaintiff introduced, evidence tending to show that Langdon was in the car with the implied assent of the conductor of the train, but not of express consent or permission to ride there.

It was held that a passsnger who voluntarily leaves his proper place in the passenger car of a railroad train, and rides in the baggage car or other place of danger, in violation of a known rule of the company, and is injured in consequence of such violation, can not recover damages for the injury, though the accident by which it was occasioned was the result of the negligence of the company, and that a railroad conductor can not, in violation of a known rule of his company, license a passenger to occupy a place of danger, — e. the baggage car — and by such license render the company responsible for injury incurred by the passenger in consequence of his violation of the rule; and that a conductor can not waive a rule which, by its very terms, he is commanded to enforce; that he may neglect to enforce it, and if it is a mere police regulation, such neglect may amount to a waiver of it as between the passenger and the company, but not so when the rule is for the protection of human life, as is one prohibiting passengers from riding in places of increased danger.

In the opinion in the last case the Pennsylvania court draws a distinction between the violation of a rule whose object is the safety of passengers, and those which are merely for the comfort of passengers, or for the convenience of the railroad company, observing that where the rule is for the convenience of the company, the company will be liable unless the violation of the rule caused the accident, whereas in the other case it is sufficient to relieve the company that the injury was received in consequence of the violation of the rule; and this, notwithstanding the fact that the negligence of the company’s servants was the cause of the accident.

The opinion also states the distinction, and the want of any inconsistency, between Langdon’s case and that of O’Donell vs. Allegheny R. Co., 59 Penn.

St., 239, the conclusion in which case, it is said, was, on account of its facts, mainly upon the ground that the plaintiff and his associates had been riding in the baggage car daily for two months under circumstances which would justify the jury in finding that their doing so was an arrangement for the benefit of the company, rather than as ordinary passengers; while on the other hand, Lang-don “was riding in the paggage car for his owrn convenience, and to have a chat with the baggage master, with ’whom he appeared to have been intimate.” The court also distinguishes the case of Lackawanna & Bloomsburg R.

Co. v. Chenewith, 52 Penn. St., 382, as one where the rule violated had no relation to the safety of the plaintiff as a passenger, the fact being that the plaintiff induced some of the company's employes, in the absence of the superintendent, to attach his freight car to a passenger train, in violation of a rule of the company, he agreeing to run all risks and to attend to the brakes on his freight ear; and that of Creed v. Pennsylvania R. Co., 86 Penn.

St., 139, where the plaintiff was riding in a caboose car, in violation of the rules of the company, on a mixed passenger and freight train, but it did not appear that the rule Avas one intended for the safety of the passenger, and Avas not claimed that the car Avas a place of danger. In Virginia M. R. R. Co. vs.

Roach, 83 Va., 375, the plaintiff, Roach, knew, or from the fact that he had been for months, until recently, an employe of the defendant company, should have known, that its rules forbid any one except the engineer and fireman to ride on its engines, yet, upon the invitation of the engineer or conductor, he got on the engine, and while riding there the train was negligently thrown off the track and he Avas injured ; and the decision was that he could not recover. See also Waterbary vs. N. Y. C. & H. R. R. Co., 21 Blatch, 314.

The. doctrine of these authorities as to the absence of poAver in a conductor to waive rules intended for the safety of passengers is in effect approved in Beach on Contributory Negligence (2d Ed.), secs. 151-154, and Patterson’s Railway Accident Law, 288-290. There are, however, other authorities which need to be noticed: Hutchinson on Carriers, sec. 654, and Jacobus vs. S. P. & C. Ry. Co., 20 Minn., 125, and Dunn vs. Grand Trunk Railway, 58 Maine, 187.

The commentator named says : Even where the riding in such car is against the rules of the company, of which the passenger is informed, if he is in it with the knowledge of the conductor and without any attempt on his part to enforce the rule by removing the passenger, his presence there would not be such negligence as would exonerate the company from the consequence of its negligence or want of care. The doctrine of the stated Minnesota case, which he cites, seems to sustain his assertion, but the same can not be said of such of the other cases cited by him as are within our reach : Washburn vs.

Nashville & Chattanooga Railroad Co., 3 Head, 638; Philadelphia & Reading R. R. Co. vs. Derby, 14 Howard, 468, for in neither of these was there any question of the effect of a rule like that in question, and, according to what is said in Pennsylvania Ry. Co. vs. Langdon, 92 Penn. St., 32, the same observation is true of Carroll vs. Railroad, 1 Duer, 571, a case not at hand, as it is of Baltimore & Ohio R. Co. vs. State, 92 Md., 36. Of the Minnesota case it may be observed that in McVeety vs. St. Paul, Minneapolis & Manitoba Ry.

Co., 45 Minn., 268, where it was held that if a person knowingly induces the conductor of a railroad train to violate a rule of his company, and carry him without charge, he is guilty of a fraud on the company and can not claim the rights of a passenger, it is said, citing the second and third cases supra, from Texas, and other authorities, that the same result follows if he rides upon a part of the train from which passengers are excluded, knowing that his act is against the rules of the carrier, and in permitting it the conductor is disobedient. The case of Dunn vs.

Grand Trunk Railway, supra, is one in which-there was evidence tending to show that the plaintiff entered the saloon car attached to defendant’s freight train ; that the conductor saw him when the train started, and they conversed together; that he paid the conductor the usual fare ; that the saloon car was thrown from the track and plaintiff injured ; and was also testimony tending to show that the conductor notified the plaintiff when the train started that he had no right to carry passengers, but this was denied by thé plaintiff. There were rules against passengers traveling on freight trains.

The verdict was for plaintiff, and it was affirmed. Of this case it is properly said by the New York Court of Appeals, in Eaton vs. Delaware, Lackawanna & Western R. R. Co., supra, that it, in its precise facts, is not opposed to the conclusions of the New York Court in the case mentioned.

That the Maine case was distinguishable from the other by payment of fare and the attachment of a “saloon car that it was not stated precisely what the saloon car was ; that it might be assumed to be one fitted up for the accommodation of passengers, and the company might thus be assumed to have assented to a relaxation of its rules, and that the principle at: led on was not to be extended beyond its precise facts.

The Pennsylvania court remarks correctly of the same cause in Langdon’s case, supra : “ There was no point that it was a place of danger,” adding “ nor that the rule was intended for the safety of passengers.” We will not go into any more critical examination of the Maine case, nor determine whether or not it should be regarded as having been treated, in the opinion of that court, as a case in which the passenger had no knowledge or notice. of the rule. We will remark that in discussing the duty of passengers to comply with reasonable rules, and the effect of employes’ waiver of such rules, it is observed by Mr.

Beach, in the second edition of his work on Contributory Negligence, sec,. 154, citing numerous authorities, that with respect to the carriage of passengers on freight trains the rule is somewhat modified to the effect that whenever the company receives passengers upon their trains and collects fare from them, although it is done in violation of a rule of the company, it is lawful for the passenger to ride, and if, while so riding, he suffers am injury due to the company’s negligence, he may have his action; the relation of carrier and passenger being-created, notwithstanding the rule, when the passenger is received on the freight train and allowed to pay his fare.

An admission of the entire correctness of this proposition is, however, not inconsistent with our conclusions in the case before us, considering its facts. The law requires of railroad companies the exercise of the highest degree of care for the safety of passengers traveling upon their trains. This care is not due only to the individual as such, but it is also a public duty for the protection of the State’s citizens.

It would be a strikingly odd system of jurisprudence which, while exacting of the operators of this very dangerous, yet highly useful, means of transportation, the duty of extreme care towards those whom they undertake to carry, yet would refuse to permit such transportation companies to require'of passengers that they, while being transported, shall coniine themselves to the places provided for them as most conducive to their safety, and abstain from riding in parts of a train of greater danger, and set apart for other purposes.

Such a system of law would present the hurtful incongruity of demanding a result indispensable to the safety of the traveling public, while in the same breath, inhibiting an essential of such result. The preservation of the life and limb of the passenger require that he shall conduct himself consistently with,- and not in antagonism to the maintenance of his safety, and this duty involves that of observing all rules of the railroad company which may be reasonably necessary to his protection from harm.

A rule which requires that passengers shall remain in the cars set apart for them, and shall not ride in a baggage or an express car, or other place of increased danger, is unquestionably reasonable, and is -within the power of a railroad company. See also T. W. & W. Ry. Co. vs. Brocks, 31 Ill., 245, 250.

In view of the law as it is shown above to be, there -was error in the following charge given to the jury : “ If you believe from the evidence that the conductor in charge of the defendant’s train at the time of the accident knew that the plaintiff was traveling on the train the day the accident occurred, and before the accident occurred, and that the conductor knew that the plaintiff was in the express car and did not forbid his being there, then the court charges you that the plaintiff’s being there at the time of the collision would not be contributory negligence on the part of of the plaintiff.” “If it is contrary to the rules of the defendant company for passengers on its passenger trains to ride in the express car on such trains, and if the conductor' of such train knew that that was the company’s rule, and that to ride in such express car was accompanied by greater danger than other portions of such train, then it becomes the duty of such conductor to look out for and prevent the riding of passengers in such express cars, if he has knowledge thereof ; and if he is cognizant thereof and permits passengers to thus ride in such express cars without taking any steps to prevent them, then the defendant company through such conductor or its agent is guilty of negligence in not taking the necessary steps to prevent its passengers from riding in such dangerous portions of its train, and is liable for any damages that may result to such passenger from a collision of such train with another of its trains while such passenger is thus riding.” Of the first of these instructions it is sufficient to say, as can safely be done, that its effect is to reject and entirely ignore the company’s rule and the plaintiff’s violation of it as constituting any defense to his action.

The second charge makes the obligation upon passengers and the protection to" a company, of a rule of this kind, even when it is known to the passenger, dependent upon the fidelity of the conductor where he knows that it is being violated; and under such instruction, the rule can be of no protection to the company unless, to say the very least, - there is some effort on the part of the conductor- to enforce it. In this view we do not concur.

Our judgment, on the contrary, is that the public welfare and sound reasoning dictate that it should be held contributory negligence for a passenger to violate a known rule of this character, oven with the permission, connivance or knowledge of the conductor, or without his protestation, where that officer is cognizant of both the rule and its infraction, if by the violation of such rule the passenger brings upon himself injury from which he would have escaped, notwithstanding that the negligence of the company produced the accident, had he remained in the passenger car set apart and offering space for his accommodation.

Whether there may be an exception to this view incoases of persons of tender years, or other disqualifying characteristics, is not for us to say; the point is not before us; the plaintiff was at the time of the accident not only twenty years of age, but also had been an express messenger, on the defendant company’s road, long enough to render him familiar with the increased danger of riding in an express c.ar next to the engine, over that incident to traveling in a passenger coach in the rear part of the train.

Of course as between the company and the conduc1or, it is the duty of the latter, as it is of any other agent, to enforce the rules of the company, but when a passenger voluntarily violates a reasonable rule, like that under consideration, which is for his preservation from harm, and brings upon himself injury which he would not otherwise have received, he not only can not find relief from the consequences of his own negligence in the omission of the conductor to do his whole duty; but besides this, where, knowing of such a rale, he goes from the passenger car into a place like that in question, which can not be regarded as intended for passengers, but naturally suggests that it is not for them, the burden is upon him to prove that he wras justified in going there.

II. Though where the passenger suing knew at the time of the accident that there was a rule of this kind in force, he can not invoke the mere delinquency of a conductor in enforcing the rule, still it cannot be denied that there may be cases in which the conduct of the company has been such as to amount to an abandonment of the rule, orto preclude itself from claiming protection under it. In Railway Co. vs.

Moore, it is conceded, as shown above, that it may be true that where a railroad company habitually permiis pass'engers to travel on its freight trains, notwithstanding a regulation to the contrary, it will incur the same responsibility to such passengers as if they were on a regular passenger car. In Jones vs. Chicago, St. P. & M. R.

Co., 43 Minn., 379, a case in which it was held that the presence of the plaintiff in the baggage part of the combination car was not, under the circumstances of the case or nature of the injury, contributory to his receiving the injury, there was evidence that passengers used the baggage compartment as a smoking room, and the jury found specially that the rule forbidding passengers to be there was not in force; and it was said by the Minnesota court that this finding, read in connection with the evidence, must mean that the rule posted up was not enforced, but was disregarded by the defendant and its servants; and that this being so, it was immaterial that the plaintiff had or had not notice that such a rule had been posted up.

There was evidence that the rule had been posted up in the car, but it did not appear that the plaintiff saw or knew the rule. It was also previously observed that even though there was such a rule posted up, if it was not enforced, if the defendant, through its servants in charge, habitually disregarded the rule and permitted passengers to ride in the baggage compartment, so that the passenger might assume the rule to have become obsolete, it certainly could not treat the passenger as a wrong doer from, passing through the baggage compartment to reach the passenger division of the car on boarding the same.

The facts in Waterbury vs. N. Y. C. & H. R. R. Co., 21 Blatch., 314, were that- there was no express contract creating the relation of passenger and carrier between plaintiff and defendant, bnt on various prior occasions the plaintiff and other drovers, whose cattle were being transported between designated points, had been permitted by the employes of the railroad company to accompany their cattle by the same train, sometimes riding on the cars of the cattle train, and sometimes on the engine.

At times the trains were delayed between these points, and the cattle required attention, and, as no employe of the defendant was assigned to looking after the cattle, it seemed to be assumed between the employes of the defendant and the drovers that the latter should look after their own cattle. Upon the occasion of the accident, the plaintiff and another drover got upon the engine, there being only box cars on the train, and the engineer inquired of them if they had cattle on the train, and being informed that such was the fact, he made no objection to their riding on the engine.

The engine ran off the track in consequence of a misplaced switch, and plaintiff was injured. A rule of the company forbade its employes from permitting any person to ride on the engine. The conclusion of the court in this case was that the plaintiff was not entitled to be carried as a passenger as an implied condition of the contract to carry the cattle, but the most that could be claimed, was that he was riding on the engine permissively.

That the real question in the case was whether he was being carried on the engine with the consent of the defen- . dant, or only by the unauthorized permission or invitation of the defendant’s employes. That it should have been left to the jury to determine, as a question of fact, whether the defendant had by its conduct held out its employes to the plaintiff as authorized, under the circumstances, to consent to his being carried on the train with his cattle.

That, in this case where the company may have derived some benefit from the presence of drovers upon its cattle trains, and may have allowed its employes in charge of such trains to invite or permit drovers to accompany their cattle, the' presumption against a license to the person thus carried may be overthrown; and it should have been left to the jury to determine, as a question of fact, whether notwithstanding its rules for the government of its employes, the defendant had not held them out as having authority to consent to his being carried; and that if it should appear that its employes had been accustomed to allow drovers to accompany their cattle on the cattle trains, so generally and constantly that the officers of the company must have known it, the consent of the company might be predicated upon acquiescence and ratification.

In the case before us, the evidence as to the enforcement of the rule was as follows: • Hirst said the express car is not the place where passengers usually ride. * * It is not a place where passengers usually ride, but it is a common occurrence for passengers to go into the express car to ride and talk with the agent. * * Yes, I knew the company claimed to have a rule that passengers should not ride anywhere but in the passenger cars, but it was never carried out; it was a frequent and common occurrence for friends of the express messenger to come into the express car and sit there and talk with the messenger, and passengers frequently went into the express car and sat around on the baggage and. boxes in there, and smoked, and it was never objected to by the conductor.

And the conductor Gamble testified : “It was against the rules of the company for passengers to ride in the express car, and Hirst knew it. * * Passengers frequently sit in the express car, and talk and smoke.” If the trial judge had, upon the basis of this testimony, submitted to the jury the question : whether or not the defendant company had by its conduct held out, to the plaintiff, its employes in control of the train as authorized, notwithstanding its rule, to consént to his riding in the express car; or whether its employes had been accustomed to allow passengers to ride in the express car so generally and constantly, that the officers of the company must have known it, and have acquiesced in the violation; or the question of there having been such continued and habitual disregard of the rule by the employes as must have reasonably produced the belief that the company had practically abandoned its rule, there would still be a question as to the testimony being sufficient to sustain a finding against the company on such theory or theories.

Certainly, where, as here, a passenger knows of the existence of such a rule, he can not rely upon any mere delinquency of the conductor or other agent charged with its enforcement; but on the contrary, there must be something -which establishes the concurrence of the company in the disregard of the regulation. There has, however, riot been even a submission to the jury of any such question, but the judge gave the case to the jury upon the theory that the virtue of the rule was dependent solely upon the fidelity of the conductor; and in this, as shown above, there was error. III.

In what is said above, we have not lost sight of the fact that when the defendant has inflicted the injury intentionally; or when he has done so unintentionally, yet his conduct, though still within the domain of negligence, has been wanton or reckless of its injurious consequences, or in other words, he has been guilty of what is now called, it may be inaptly, “wilful negligence,” the contributory negligence of the plaintiff is not a defense. Beach on Contributory Negligence (2nd ed.), sections 61-64; Cooley on Torts (2nd eel.), 810; Palmer vs. Chicago, St. L. & P. R. R. Co., 112 Ind., 250; Brannen vs.

Kokoma, G. & J. G. R. Co., 115 Ind., 115; Banks vs. Highland Street Ry. Co., 138 Mass., 485; Donahoe vs. Wabash, St. Louis & P. Ry. Co., 83 Mo., 543; Gothard vs. Alabama Great Southern R. R. Co., 87 Ala., 114; Peoria and Rock Island R. R. Co. vs. Lane, 83 Ill., 448. Though such wanton or reckless conduct has sometimes been spoken of as “gross negligence,” the term does not define it, nor is gross negligence confined to only such an. extreme degree of negligence; Beach on Contributory Negligence, sections 61, 62; Milwaukee, etc., R. R. Co. vs. Arms, 91 U. S., 489; Chattanooga R. Co. vs.

Liddell, 85 Ga., 482; and we are entirely satisfied that the term ‘ ‘gross negligence’ ’ was not used by the Circuit Judge in his charge in any such extreme sense, for had it been he would not have.recognized contributory negligence as a defense, as he has done in charges not necessary to be set out here. Not only was' the case not submitted to the jury for consideration by it in this light, but the facts are not such as would authorize an appellate court to say, as fi matter of law*, that it was one in which the defense of contributory negligence cannot have a standing; Brannen vs. Kokoma, G. & J. G. R.

Co., supra; and to treat as harmless the errors pointed out above, and affirm the judgment. IV. Exemplary damages can be allowed in cases of negligence, as distinguished from those of intentional injury, only where, as was said in Florida Railway & Navigation Co. vs. Webster, 25 Fla., 334, 419-21 ; 5. South.

Rep., 714, and the authorities there cited, the negligence is of a gross and flagrant character evincing reckless disregard of human life, or of the- safety of persons exposed to its dangerous effects ; or there is that entire want of care which would raise the presumption of a conscious indifference to consequences, or which shows wantonness or recklessness, or a grossly careless disregard of the safety and welfare of the public, or that reckless indifference to the rights of others which is equivalent to an' intentional violation of them.

This being the rule, and the term “gross negligence ” not being confined to this extreme degree of negligence, it is not proper to charge a jury simply that gross negligence will justify the imposition of such damages. It leaves the jury to its own ideas whatever they may be, as to what want of care constitutes the gross negligence authorizing the allowance of such damages. The character of negligence should, instead of using the term “gross negligence,” be defined as indicated above, in order that the jury may understand in what cases such damages may be given or inflicted. Chattanooga R. Co. vs. Liddell, supra.

V.

The testimony does not justifyyis in concluding that Hirst was attempting as claimed by counsel for appellant to obtain a ride without paying fare, and to this end was practicing a fraud pr imposition on the conductor or the company, by passing himself off as express messenger returning to his “run.” • It is true there is testimony that up to six weeks before the day of the accident, he had been an express messenger and had run on the same train with the conductor who was in charge of the colliding passenger train, but there is also testimony to the effect that he had left this employment, and, at the time of the accident, was engaged in other business at Tampa, and that on boarding the train he went into the passenger car, and that he had funds sufficient to pay his fare.

The evidence, moreover, justified the j ury in concluding that the conductor was aware of all this. The conductor did not ask him for his fare, and gives as a reason for not doing so, that he thought Hirst was in the employ of the express company. There was, however, nothing in the conduct of Hirst to throw upon him any blame for this omission of the conductor. Under this evidence we cannot conclude that Hirst’s presence or his purposes on the train were fraudulent, or that he at no time had the legal status of a passenger thereon. The actual payment of fare is not indispensable to such status.

Ohio & Mississippi R. R. Co. vs. Muhling, 30 Ill., 9 ; Pennsylvania R. R. Co. vs. Books, 57 Penn. St., 339; Cleveland vs. New Jersey Steamboat Co., 68 N. Y., 306; Steamboat New World vs. King, 16 Howard, 469 ; Wilton vs. Middlesex Railroad Co., 107 Mass., 108 ; Philadelphia & Reading R. R. Co. vs. Derby, 14 Howard, 468 ; Sherman vs. Hannibal & St. Joseph R. R. Co., 72 Mo., 62; Toledo, Wabash & Western Ry. Co. vs. Beggs, 85 Ill., 80 ; Toledo, Wabash & Western Ry. Co. vs. Brooks, 81 Ill., 245.

The case is of course not one which involves the measure of the duty of a railroad compan y to an express messenger, or other employe of an express company, traveling in an express car and injured while in the due performance of his ordinary functions, through the negligence of the company or its agents. There are other assignments of error, but they need not be noticed. What has been said above seems .sufficient for future proceedings in the cause. For the reasons indicated above, the judgment must be reversed, and it will be so ordered.