L.R.A.(N.S.) 916, 92 Pac. 17; Redigan v. | 217 Mo. 1, 20 L.R.A. (N.S.) 903, 116 S. W. Boston & M. R. Co. 155 Mass. 44, 14 L.R.A. 557; Hargreaves v. Deacon, 25 Mich. 5; 276, 31 Am. St. Rep. 520, 28 N. E. 1133; O'Brien v. Union Freight R. Co. 209 Mass. Schreiner v. Great Northern R. Co. 86 Minn. 449, 36 L.R.A.(N.S.) 492, 95 N. E. 861; 245, 58 L.R.A. 75, 90 N. W. 400; Illinois Indian Ref. Co. v. Mobley, 134 Ky. 822, C. R. Co. v. Godfrey, 71 Ill. 500, 22 Am. 24 L.R.A. (N.S.) 497, 121 S. W. 657; St. Rep. 112; Poling v. Ohio River R. Co. 38 Louis Southwestern R. Co. v. Bryant, 81 W. Va. 645, 24 L.R.A. 215, 18 S. E. 782, Ark. 368, 99 S. W. 693; Thomp. Neg. § 10 Am. Neg. Cas. 409; Means v. Southern 2670; 33 Cyc. 762; 23 Am. & Eng. Enc. California R. Co. 144 Cal. 473, 77 Pac. 1001, Law, 736. 1 Ann. Cas. 206, 17 Am. Neg. Rep. 1; Norfolk & W. R. Co. v. Wood, 99 Va. 156, 37 S. E. 846; Illinois C. R. Co. v. Hopkins, 200 Ill. 122, 65 N. E. 657, 13 Am. Neg. Rep. 15; Ling v. Great Northern R. Co. 165 Fed. 813; Woods v. Missouri P. R. Co. 149 Mo. App. 507, 130 S. W. 1123; Kelly v. Benas, fully injure him. North Chicago Street R. Co. v. Thurston, 43 Ill. App. 587. He must take the condition of the vehicle as he finds it, as he is at best but a licensee. Blackmore v. Toronto Street R. Co. 38 U. C. Q. B. 172, where it was held that there could be no recovery for the death of a newsboy eleven years old, who boarded the defendant's street car to sell papers, and stepped or fell from the front platform, there being no step on that side of it (although the loss of such step had been before reported to the company by the conductor). The evidence was insufficient to warrant an inference by the jury that defendants were negligent. Ray, Negligence of Imposea Duties, 134; Webb's Pollock, Torts, 45. Messrs. Blanchard & Smith and Thomas C. Barrett for appellees. | out stopping, or slackening the speed of the A newsboy jumping on the running board In Rosenkovitz v. United R. & Electric of the defendant's car in motion to sell Co. 108 Md. 306, 70 Atl. 108, the court said: papers according to his custom is not a pas-"The duty and obligation of a street railsenger, and ordinary care is all that is required of the company. Padgitt v. Moll, 159 Mo. 143, 52 L.R.A. 854, 81 Am. St. Rep. 347, 60 S. W. 121 (where the boy was knocked off by the tongue of a wagon in the street); Raming v. Metropolitan Street R. Co. 157 Mo. 477, 50 S. W. 791, 57 S. W. 268 (where it was claimed that the boy was pushed off by the gripman, but the case went back for a new trial without any conclusion as to the facts of the injury). way company to a newsboy who enters upon its cars for the purpose of selling papers, and who pays no fare, has been clearly defined by the courts of this country. He is not a passenger, but a mere licensee or trespasser; and the company owes him no duty, except to use ordinary care for his preservation after discovering his peril, and to refrain from inflicting wilful, reckless, and wanton injury. The recognized law upon this subject is well stated in a case In Fleming v. Brooklyn City R. Co. 1 Abb. note, entitled 'Duty of carrier to one whom N. C. 433, affirmed without opinion in 74 it permits to enter its cars upon his own N. Y. 618, it was held that the defendant business and not as a passenger,' in the restreet car company was not liable for the port of the case of Peterson v. South & W. death of a newsboy eight years of age who| R. Co. 8 L.R.A.(N.S.) 1240, where the leadmounted the front platform of the defending cases are cited and collected." newsboys injured at station. ant's moving car to sell papers, and was killed later on leaving the car by the front platform. It was alleged that the driver on the instigation of a passenger in- The case of INGRAM V. KANSAS CITY, S. vited the boy to board the car, but the & G. R. Co. seems to be the only reported court did not refer to this directly, but said: case of a newsboy injured at a station, "The plaintiff's intestate was not a pas-with the exception of Alexander v. Toronto senger on the defendant's car. He was not & N. R. Co. 33 U. C. Q. B. 474, affirmed in expected to pay fa:e, neither did he go on 35 U. C. Q. B. 453, supra, which was decided board for the purpose of being transported upon the contract between the boy's emfrom one place to another. He simply had ployer and the carrier. a license to pass on and off the car, for the purpose of selling papers to the passengers. It appears from the complaint, that he passed into the car safely; the charge is, that the driver permitted him to pass out It will be seen that the court in the and off, by way of the front platform, with-INGRAM CASE considers that a newsboy, fre For liability for injury to trespasser or bare licensee at station by train, see the note to Neice v. Chicago & A. R. Co. 41 L.R.A. (N.S.) 162. Sommerville, J., delivered the opinion not allege contributory negligence; but of the court: they represented that the child had no Plaintiffs, parents of a son named Clar- right at the depot at the time he was ence, aged eleven years, sue the defend- killed, that he was a mere spectator, and ants in the sum of $10,000 for damages to that they owed him no duty whatever, extheir deceased son and to them, alleged cept not to wilfully and intentionally into have been caused by the fault and neg-jure him. They further alleged that their ligence of defendants. engineer and employees did all they could Defendants answered, denying generally do possible to avert the injury, and used all the allegations in plaintiffs' petition, all precaution in their power to prevent but admitted that the son of plaintiffs was the accident. injured at the time, place, and to the extent alleged, but averred that the same was without fault on their part. They did quenting a railway station "for the purpose of getting his papers from passing trains" and of selling them, is more than a licensee. It would seem that if his only purpose had been the selling of papers that he would not be generally considered as more than a licensee under the cases cited in the note last mentioned. If "getting his papers from passing trains" means that the carrier itself brought the papers for him, and that the boy went to the station to get them from the carrier, he was of course on the premises by invitation. And even if the fact was that his custom was to buy the papers from news agents on the train, the decision in the case seems fair and reasonable. There was judgment in favor of plaintiffs as prayed for; and defendants have appealed. So, where the conductor pushed a newsboy who had been on the defendant's car to sell papers, from the step of the front platform, it was held that he was not a trespasser, as the usage of the company at the time was to permit newsboys on their cars without objection. Philadelphia Traction Co. v. Orbann, 119 Pa. 37, 12 Ati. 816, 10 Am. Neg. Cas. 133, where the case. however, was reversed, as the court did not consider it a case for punitive damages, as the car was approaching a crossing where passengers were waiting to enter it and the boy was in the way. In Chicago City R. Co. v. O'Donnell, 207 Ill. 478. 69 N. E. 882, 15 Am. Neg. Rep. 517, the defendant railroad company was held -injuries due to violence or fear of violence liable for the death of a newsboy who of defendant's servants. In some of the cases where it is claimed that the injuries to a newsboy were caused by violence of the carrier's servants, or by his jumping or falling from cars in fear of such violence, it was defended that the carrier's servant was not acting within the scope of his authority. These were cases where the act complained of was done by motormen, drivers, and a brakeman. There are a number of cases which turned on the question of fact as to whether there was violence by the carrier's servant or justifiable fear of it. In North Chicago City R. Co. v. Gastka, 27 Ill. App. 518, a carrier was held liable for injuries to a newsboy boarding its car to sell papers according to custom, who was thrown from the car by the conductor without warning, and was run over by a car of the same company coming in the opposite direction. boarded the step of a car outside the closed gate to steal a ride, and, on threatening orders or gestures from the conductor, jumped off, and falling was run over by another car of the defendant going in the opposite direction; the wantonly wrongful act of the conductor being given as the ground of the recovery. There are some Massachusetts cases where the court considers that the danger of violence was not great enough to have incited a reasonable fear of it in the ordinary newsboy of that locality. Thus it has been held that a newsboy boarding a street car of the defendant to sell papers was a trespasser, and could not recover for injuries sustained in jumping from a car in motion, on orders from the conductor, who was separated from him by the width of the car, but was perhaps moving in his direction (Lebov v. Consolidated R. Co. 203 Mass. 380, 26 L.R.A. (N.S.) 265, A newsboy who in accordance with cus-89 N. E. 546); or in falling or jumping from tom boarded the running board of the de- the car on an order from the conductor, who fendant's open street car at request of a was at a distance on the rear platform passenger for a paper, while the car was at (Albert v. Boston Elev. R. Co. 185 Mass. rest, and after the car started but before 210, 70 N. E. 52); or in falling off in fright he had delivered the paper was injured by on threatening orders from the motorman jumping or falling off after threatening while the car was going slowly (Massell v. orders by the conductor, may recover from Boston Elev. R. Co. 191 Mass. 491, 78 N. E. the railroad company. Indianapolis Street 108). In the last case the court said: "It R. Co. v. Hockett, 161 Ind. 196, 67 N. E. is obvious that the plaintiff had no reason106 (where the jury found that the con-able ground to believe that the motorman ductor had ordered the boy off before the intended assault him. . The car started, but the court considered that plaintiff had been a newsboy for a year the jury had not found that the boy heard and was familiar with the streets of Boshim). ton. There was nothing in the motorman's to It appears from the evidence that on the morning of July 4, 1912, about the time the southbound train of the Kansas City, Shreveport, & Gulf Railway Company was due, the agent, or his assistant, in charge of the depot at Mooringsport, moved a truck, which was used for hauling baggage and mail bags, to a point on the platform which was considered by him to be clear of the incoming train. 25 feet from the truck and the track. As the train came in, the engine and tender missed the truck; but the upright stanchions at the end of the truck were caught by the baggage car, pulled around, and struck by the iron steps of that same car, and thrown or propelled some 25 feet through the air, striking Clarence Ingram, and inflicting injuries from which he died the same day. Clarence Ingram was there engaged in selling newspapers. He had gone to the Defendants, on their brief, say: "The depot for that purpose, and was standing question is squarely presented: As a maton the open, gravel railroad platform, some 'ter of law, what duty did the defendants words or in his gestures to intimidate an ordinary newsboy." scope of servant's authority. The same was held as to the driver's authority, and that express proof of it was not required in Baber v. Broadway & S. Ave. R. Co. 10 Misc. 109, 30 N. Y. Supp. 931, In Coll v. Toronto R. Co. 25 Ont. App. 5 Am. Neg. Cas. 764, where the newsboy, Rep. 55, it was held that the jury could not who had boarded the front platform on a find that a motorman who pushed a news-signal from a passenger, asked the driver boy off the step of a moving street car had to stop to let him off, but the driver refused acted within the scope of his employment, and threateningly ordered him to jump, where it was testified for the defendant which he did and was injured, and it was that the motorman had nothing to do with held to be error to dismiss the complaint. passengers unless called on by the conductor. The boy had been signaled by a pas senger. So, in Barry v. Union R. Co. 105 App. Div. 520, 94 N. Y. Supp. 449, 18 Am. Neg. Rep. 568, the court reversed a judgment for a newsboy nine years old, who had boarded the defendant's street car to sell papers and was thrown from the front platform of the car by the motorman, because the trial court had declined to instruct the jury that the defendant would not be liable unless they found that the motorman was acting within the scope of his authority. was Miscellaneous. In Philadelphia Traction Co. v. Orbann, 119 Pa. 37, 12 Atl. 816, 10 Am. Neg. Cas. 133, it was held that the Pennsylvania statute of 1868 did not apply to the case of a newsboy casually on the street car, selling papers. (This statute is quoted in the early part of this note under Smallwood v. Baltimore & O. R. Co. 215 Pa. 540, 64 Atl. 732, 7 Ann. Cas. 525, 20 Am. Neg. Rep. 718.) In Rosenkovitz v. United R. & Electric Co. 108 Md. 306, 70 Atl. 108, where a judgment for the defendant was reversed for confusion in instructions, the theory of the plaintiff's case was that he boarded the defendant's street car to sell papers and to proceed further in the city to serve his customers, and that he tendered his fare to the conductor, who refused it and kicked him off, whereby he was injured; as to which the court observed that if the jury found these facts the plaintiff was entitled to recover. Similarly, in Chicago, R. I. & P. R. Co. v. Moran, 117 Ill. App. 42, the court reversed a judgment in favor of a newsboy who jumped from a train on the angry command of a brakeman, on the ground that the boy a trespasser, and that the railroad company was not responsible for the act of the brakeman, who was forbidden by the rules of the company to eject trespassers, and it not being shown that he was acting within the scope of his employment or in the line of his duty. This was apparently It may be noted, while the case is scarcely a hard case, as the boy had boarded a train within the scope of the note, that in Brenat a station to sell papers, and was de-nan v. Fair Haven & W. R. Co. 45 Conn. tained thereon, through a servant of the 284, 29 Am. Rep. 679, 2 Am. Neg. Cas. 277, carrier buying or grabbing a paper, until the defendant (horse) railroad was held the train had started and it was unsafe to get off. But in Amato v. Sixth Ave. R. Co. 9 Misc. 4, 29 N. Y. Supp. 51, it was held that authority from the defendant company to its driver to expel trespassers was fairly to be implied from the employment, and that it was liable to a newsboy who, while standing on the front platform of its car supplying a passenger with a paper, was ordered off by the driver, and, in spite of his request to remain pending the passing of a truck, was pushed by the driver from the moving car and injured. liable to a newspaper carrier, ten years old, who with the driver's consent was taking a ride on the car to the place where he was to receive his papers, and was injured in jumping from the car for the purpose of handing a package in at the postoffice at the driver's request, where the driver on reaching the postoffice had continued to drive at ordinary speed. It was considered that the boy was a passenger, and that the act of the driver and conductor in receiving him as such was within the scope of their authority and was the action of the deB. B. B. fendant. owe him (the deceased boy) at the time of | to those who came off the trains, and with the injury?" Defendants argue that, under the settled jurisprudence of the state, Clarence Ingram was a trespasser or licensee, and that they owed him no duty except not to wilfully or wantonly injure him. no warning of any kind from the defendants to him to keep away from the said depot grounds, the deceased had a right to be where he was at the time that he was struck and met his death. The law of this state is that: "Art. 2315. Every act whatever of man that causes damage to another, obliges him by whose fault it happened to repair it." That the accident to the deceased happened through the fault of the defendant is made clear by the evidence. The depot at Mooringsport is shown by the record to be an open one; and the platform consists of gravel, made with a slight incline so as to drain properly. There was no attempt made to inclose same, or to keep strangers from congregating there. The evidence shows that, like in other It was gross carelessness on the part of country places, the people of the town regu- the assistant to the depot master to have larly visited the depot at the time of the placed the truck in such close proximity to arrival and departure of trains. It further the track as to permit it to be struck by shows that Clarence Ingram was a news-any portion of the oncoming train. It was paper boy, in the habit, to the knowledge placed where it was for the purpose of being of defendants' employees, of frequenting used in connection with that very train, said depot for the purpose of getting his and it should have been placed where it papers from passing trains and for selling his papers to patrons of the railroad, as well as to others assembled there. It further shows that he had never been warned to keep away from said depot. might have been used, and not where it was struck, and therefore could not be used. That it was not properly placed is evidenced by the fact that the train struck it and sent it flying through the air, a distance of some 25 feet, with grea force, injuring a man in its flight and killing Clarence Ingram. If we accept the definition given in Words & Phrases for a "licensee," we would term the deceased boy a licensee. That definition is: "The term 'licensee,' as applied to a common carrier, relates more properly to persons entering by express or implied permission on depot grounds, or standing trains for purposes other than that of transportation, such as news vendors to sell papers, persons receiving or parting with guests, or anyone having business with the company. It would seem that no one can become such licensee on premises of a railroad company, or on its train while stand-track from the engineer. ing at the station, without the consent of the company, either express or implied," citing authorities. [vol. 5, p. 4143.] The evidence shows that there was neglect and fault on the part of the engineer in charge of the locomotive. He was running at the rate of 8 or 10 miles an hour, coming into a station, where he intended to stop, so that passengers might alight from and board the passenger coach. There was a slight curve in the track, after it left a trestle, some 400 feet from the depot; but it was not sufficient to obscure the The engineer testifies that he could see clearly for 300 feet, which would have been sufficient in which to have stopped the train, if he had seen the truck in too close proximity to the track. He testifies that he did not see the truck until he got within 150 feet of it, and that it was then too late to stop to avoid the collision. But the fact is he might have seen it. He says: "I was not looking out for the truck especially. If I had, maybe when I came around the curve. I could have stopped." He says further: "Well, I was looking ahead on the track. I was not noticing anything on the side of the track. It was quite clear that the deceased was not a trespasser; he was there with express permission of the defendant; he was more than a licensee. It is a well-recognized fact that boys frequent railroad depots for the purpose of selling newspapers. It is a part of the life of a railroad depot; and they are looked for and expected by persons called there on business or for pleasure; and we may add that their presence is expected by the railroad companies themselves. Under the circumstances, with the depot unfenced and unguarded, with it hav-I was not looking out for it. I was looking long been the place where people con- ing down the track and was going to make gregated generally on the arrival and the stop at the water tank. We generally departure of trains, with the knowledge on make the stop there." the part of defendants' employees that the He further testifies that when he saw deceased boy had been in the habit of fre- the truck he thought it was about one foot quenting the said depot for the purposes of from the track, and that the train would getting his papers and of selling them to have missed it. This was a serious misthe people who were there congregated, and 'take on his part, which does not excuse After reviewing the adjudged cases and observing that the question of negligence must depend upon the circumstances of each case, we can see no difference between an express license to the people of Mooringsport to visit the depot of defendants and an implied license, without objection or warn him or his employers. The conductor on the train took a position on the steps of one of the coaches, saw the truck, and was of a different opinion. He thought it would be struck by the train, and he was correct. This witness also testified that the cars overlapped the tracks about 2 feet 6 inches; and it was clearly the duty of the engineering, to do so at will, for purposes of curito have known this fact, and to have also known that the truck would be struck by the train when he calculated that it was only one foot from the track. osity or pleasure, or other inoffensive and legitimate purposes. We are of the opinion that Mr. Patterson, in his work on Railway Accident Law, § The authorities relied upon by the de- 187, correctly states the gist of opinions of fendants to the effect that a railway com- the courts, and lays down the rule to be pany is not liable to a licensee or trespasser applied in this case: "While licensees must for an existing defect in its premises have take the railway's premises as they find no application in this case. There were no them, and therefore cannot hold the railway existing defects in the platform of the de- liable for a failure of duty in not mainpot of the defendant company, so far as taining its premises in a condition of sound this record shows; and the death of the repair, yet the railway is bound as to such child did not result from any such cause. licensees to exercise ordinary care in the But, it is argued, if a defect arises while conduct of its business on the premises upon a licensee is on the premises the same rules which it permits the licensees to come, and should prevail. The law is to the contrary. it is liable to them for injuries done to The Supreme Court of the United States them by its want of such care. This disin Sioux City & P. R. Co. v. Stout, 17 Wall. tinction between what may be called active 657, 21 L. ed. 745, say: "We conceive the and passive negligence is well illustrated rule to be this: That, while a railway by the judgments of the Queen's bench in company is not bound to the same degree Gallagher v. Humphrey, 6 L. T. N. S. 684, of care in regard to mere strangers who where a warehouse owner was held liable are unlawfully upon its premises that it to a licensee for injuries caused by the negowes to passengers conveyed by it, it is ligence of a servant in his lowering of a not exempt from responsibility to such barrel from an upper story of the warestrangers for injuries arising from its neg-house. Cockburn, Ch. J., put the distincligence or from its tortious acts. If from the evidence given it might justly be inferred by the jury that the defendant, in the construction, location, management, or condition of its machine, had omitted that care and attention to prevent the occurrence of accidents which prudent and careful men ordinarily bestow, the jury was at liberty to find for the plaintiff." The jurors, men of the average of the community where the accident happened, comprised of men of education and men of little education, men of learning and men whose learning consists only in what they themselves have seen and heard, the merchant, the mechanic, the barber, the laborer, these sat together, consulted, applied their separate experiences of the affairs of life to the facts proven, and drew a unanimous conclusion that the defendant companies were negligent, and that the child's death was caused by their fault. And in the case of Union P. R. Co. v. McDonald, 152 U. S. 262, 38 L. ed. 434, 14 Sup. Ct. Rep. 619, the Supreme Court say: "The principles announced in Sioux City & P. R. Co. v. Stout, have been approved in many adjudged cases. . We adhere to the principles announced in Sioux City & P. R. Co. v. Stout, supra." tion thus: 'I quite agree that a person who merely gives permission to pass and repass along his close is not bound to do more than to allow the enjoyment of such permissive right under the circumstances in which the way exists; that he is not bound, for instance, if the way passes along the side of a dangerous ditch, or along the edge of a precipice, to fence off the ditch or precipice. The grantee must use the premises as the thing exists. It is a different thing, however, where negligence on the part of the person thus having granted the permission is superadded. It cannot be that, having granted permission to use the way subject to existing dangers, he is to be allowed to do any further act to endanger the safety of the person using the way?' In the same case, Wightman, J., said: 'It appears to me that such permission as is here alleged may be subject to the qualification that the person giving it shall not be liable for injuries to persons using the way arising from the ordinary state of things, or of the ordinary nature of the business carried on, but it is distinguishable from the case of injuries wholly arising from the negligence of that person's servants.' "Sec. 188. Upon this principle a railway |