Spencer v. Chicago, Milwaukee & St. Paul Railway Co.

Marshall, J. It is conceded by counsel for appellants that if tbe deceased was a trespasser on respondent’s train, as tbe trial court held, tbe. plaintiffs could not recover in tbe absence , of wilful negligence — some fault greater than mere want of ordinary care on tbe part of tbe engineer — and that no evidence of any greater fault was produced. That accords with elementary principles which have been many times declared and applied by this court, one of tbe latest instances [477] being Zartner v. George, 156 Wis. 131, 145 N. W. 971. It follows that if tbe deceased was not a licensee, tbe judgment must be affirmed. As we view tbe case, none of tbe authorities cited by coun■sel for appellants fit tbe circumstances we have to deal witb. Let it be conceded, for tbe purposes of tbe case, that tbe mere fact, unknown to tbe deceased, that tbe engineer bad no authority to permit him to ride on tbe engine, would not condemn him as a trespasser, be must have known there was no ■such authority, or bad reasonable ground therefor. Tbe reasoning in Clark v. C. & N. W. R. Co. 91 C. C. A. 358, cited to our attention by counsel for respondent, seems to be sound. We adopt it. It is a matter of common knowledge that trainmen have no right to permit persons to ride free, particularly to ride on tbe engine. “Tbe authorities are in harmony in bolding that in a place like an engine cab, drawing a train of cars, tbe person who voluntarily enters therein to ride is presumed to know that it is not designed for such use, and no presumption arises in favor of such persons that the engineer and conductor have ■either express or implied authority to grant him such permission.” “While some courts have gone to considerable length in bolding railroad companies responsible for tbe acts and assumptions of their employees while in positions of apparent authority, yet when requested to bold that there is any presumption in favor of tbe authority of the employee to permit third persons to use places and instrumentalities obviously not designed therefor by tbe master, they come to a halt.” In tbe present state of tbe law, absolutely making such conduct as tbe deceased was guilty of a punishable offense, it does not seem that there is any basis in tbe evidence in this case for bolding that be was a licensee. He must be presumed to have known that in doing as be did, be was where be bad no right to be and was there in violation of law. Under those circumstances, bow can be be regarded as having been other than a trespasser ? [478] It does not seem that Gabbert v. Hackett, 135 Wis. 86, 115 N. W. 315, — where the facts were that a policeman in good faitb, according to custom, permission of the company, and an ordinance believed to be in force, took passage on a street car, has any bearing on this case; nor cases cited involving violations of the Sunday laws; nor such cases as Ulicke v. C. & N. W. R. Co. 152 Wis. 236, 139 N. W. 189, where walking upon a railway track was held not to preclude recovery by a person too young to appreciate his violation of law; nor such cases as Davis v. C. & N. W. R. Co. 58 Wis. 646, 17 N. W. 406, and Mason v. C., St. P., M. & O. R. Co. 89 Wis. 151, 61 N. W. 300, where walking upon a railroad track in violation of law,, but by acquiescence of the railway company, was held not to involve a trespass; nor such as Alexander v. M., St. P. & S. S. M. R. Co. 156 Wis. 477, 146 N. W. 510, involving an inadvertent driving upon a railway track outside the highway-None of those cases are inconsistent with Anderson v. C., St. P., M. & O. R. Co. 87 Wis. 195, 58 N. W. 79, and Schug v. P., M. & St. P. R. Co. 102 Wis. 515, 78 N. W. 1090, holding that wilful walking upon a railway track in violation of law and not pursuant to a custom acquiesced in by the railway company, constitutes the person doing so a trespasser. We note that, in Alexander v. M., St. P. & S. S. M. R. Co., supra, Tunnison v. C., M. & St. P. R. Co. 150 Wis. 496, 137 N. W. 781, is cited as holding that walking upon a railway track in violation of law is contributory negligence, only. What was there held is that such conduct is contributory negligence, the question of the status of the person, as to whether a licensee or not, being waived for the purpose of the case. We limit the decision here to the precise situation involved. Eor a principle it may be stated thus: If a person enters the cab of a railway locomotive for the purpose of obtaining a free ride, and there is no objection made by the engineer — in view of the law prohibiting such free passage and the place being, by common knowledge, for the exclusive use of the en [479] ,gine crew — sucb person is presumed to know that the engineer has neither actual nor apparent authority to permit him to ■do so, and to wilfully commit an unlawful act, and he thereby makes himself a trespasser. By the Court. — Judgment is affirmed.