BRYANT V. CHICAGO, ST. P., M. &; O. RY. CO.
997
"r am of the opinion that the sum of $6,000 should be paid to Coates & Company out of any moneys withheld by the department in the settlement with the contractors."
I think that decree ought to be entered here in favor of the plaintift in error, and that the decree of the court below should be re\"ersed. BRYANT v. CmCAGO, ST. P., M. & 0. RY. CO. (Circuit Court of Appeals, Eighth Circuit. February 6, 1893.\ No. 175. CARRIERS OF PASSENGERS-WHO ARE PASSENGERS.
'l'he engineer of a railroad switch engine, whlle under pay for extra hours' labor, went, under the direction of the yard master, to the com· pany's shops, a distance of about two miles, being entirely within the com· pany's yards, and drew a passenger coach full of the company's employes to the depot, where they attended a meeting. After the meeting was over, about 10 o'clock at night, the employes again got into the coach, the yard master acting as conductor, and started on the return trip. A collision shortly ensued, in which plaintiff's intestate received injuries causing his death. The intestate had come in from the shops on the coach, but there was no evidence that he or any of the others paid fare. Hdd, that in view of the presumption that one riding in a passenger coach is lawfully there, by invitation or permission of the carrier's employes, and that these employes have authority to bind the carrier by such inVitation or permission, there was some evidence that the relation of' passenger and carrier existed; and it was error to direct a verdict for defendant on the ground that there was no evidence of such relation.
In Error to the Circuit Court of the United States for the District of Minnesota. . Action by F()[Test E. Bryant, administrator of the estate of James Davidson, deceased, against the Chicago, St. Paul, Minneapolis & Omaha Railway Company, to recover damages for alleged negligence causing the death of said Davidson. A verdict was directed for fendant, and, from the judgment entered thereon, plaintiff brings eITor. Reversed. Statement by Sanborn, Circuit Judge: 'l'he plaintiff in error brought an action for damages for the nt>gligence of the defendant in errol', causing the death of James Davidson. The com· plaint alleged that the defendant was a common carrier between the Union Depot in St. Paul, and a point near its railroad shops, about a mile and a half westerly from the depot, and that while in the course of his transportation by the defendant, as a passenger between these points, the deceased was killed by its negligence. The answer admitted that the defendant was a com· tLne 01' the accident it was a carrier of mon carrier, but denied that at passengers between the points named, and denied that the deceased WitS a passenger at that time on any car operated by it. There was evidenCf; that th<> accident was caused by the negligenre of 1he defendant's employes in the management of certain freight cars that stood on 1ts passenger track, with which the train on which the q.eceased was riding collided. At the close of the plaintiff's evidence the court instructed the jury to return a verdict for the defendant, on the ground that there was no evidence tending to show that the relation of passenger and carrier existed between the deceased and the defendant at the time of the accident, and it is this instruction of which com· plaint Is DOW made. The evidence discloses the following facts: Defendant's
998
FEDERAL REPORTER,
vol. 53.
rallrolidyllrd'extended from the Union Depot in St.Paulwe/:lterly about two mlles'tofts! Shops,. and the two points between the Complaint alleges the deceased was being carried at .the time of the accident are within this yard. ,Flannagan, who. 'Vas the accident, WliS the defendant's general yard master. IDSiduties, as sl1bh,'were to instruct the switchmen what to' do, to receive orders from thesbiPving, agents, and I to,.tE.'llthp foremen of the crews what they should do. He acted as conductor upon, and had charge of, the train on which the accident occurred, and it occurred within the limits of the yard. The train consisted of a switch engine and one passenger coach, which belonged to the defendant. The engine was operated by one of'its engineers,-''Who was paid, by it, for extra nourB, for runni.ng tIJi!'! train on the eveIling of the accident,-and by one of defendant's firemen. under Flannagan's orders. On the evenl:tig, of the accident: 1:lUs engineer, by the direction of Flannagan, went to the shops of the company, and, with the switch engine, drew the passenger ooaoh, filled with employes of the defendant, from the shops to the Union PePot, where they held a meeting. deceased rode from a point near the shops to the depot ihthfs coach. After , the meeting, and at about 10 o'clock in tl1e aveIling, this coach stood opposite tl1e platform at the depot .e:>n the out-going, west-bound. track of the defendant, in front of thi\! engine. Many persons wlie:> came to the depot in the car boarded it, pnd' among others the deceased. Some were invited to do so by Flannagan;i but there was no evidence t)latthe deceased received anY' special invitation to ride upon it. He seated .l1imself fn the coach. Flfumagan stood on the steP, attts forward end,and signalled the engineer to push the train out towards the shops. He' did so, and after stopplug at an intermediate sm;tlon, and starting again, in obedience to Flannagan's signals, the train collided with the freight cars on the track, and so injured the plainti:ff's intestate that he died. There was no evidence that the deceased, or any other per90n in this coach, paid any fare.
M. D. Muntt"and F. B.·.Kellogg, (Munn, Boyeson 'fhygeson, o. K. Davis, and C. 'A.' Several,lce, on the for plainti1f'f in errol('. Thomas Wilson, (So L. Perrin, on the brief,) for defendant in error.
Before CALDWELL and SANBO:RN, Circuit Judges, and SHIRAS, District Judge. SANBORN, Circuit Judge, (after stating the facts.) If the defendant undertook to carry the deceased without the payment of fare, it was bound to the exercise ·of due care in performing the obligation it voluntarily assumed. Railway CO. V. Derby, 14 How. 468; The New World V. King, 16 How. 469; Waterbury v.Railroad Co., 17 Fed. Rep. 671. 673. Whatever the rule maybe when one is riding for his own conven· train. an engine, a hand car, or any other carriage ience on a is evidently not designed .for the transof a common carrier. portation of passengers, (powers V. Railroad Co., 153 Mass. 188, 190, 26 N. E. Rep. 446; Eaton v. Railroad Co., 57 N. Y.382; Files v. Railroad Co.,149 Mass. 204, 21 N. E. Rep. 311; Hoar V. Railroad Co., 70 Me. 65, 72, 73; Gardner V. Railroad Co., 51 Conn. 143; Graham v.Railway Co., 23 U. C.C. P. 541; S)leerman V. Railway Co., 34 U. O. Q. B. 451; Railroad Co. v. Michie, 83 m. 427,) the presumption is that one riding in a passenger coach, an omnibus, or any other car'riage of a common carrier, that is palpably designed for the transportation of. passengers, is lawfully there, by invitation 01" permission of the employes of the carrier in charge of the vehicle, and that these employes haveauthdrity to bind the carrier by such
UNITED STATES tl. PEACE.
999
invitation or permission. Railway Co. v. Books, 57 Pa. St. 339, :146; Railroad Co. v. Derby, supra; The New World v. King, supra; Railway Co. v. Thompson, 8 N. E. Rep. 18, 9 N. E. Rep. 357; Hutch. Carr. § 334. The reason of the rule is that the carrier offers its passenger trains and coaches for the transportation of persons, and in their operation confides to its servants in charge of them the business of inviting and accepting persons thereon as passengers. Whenever one enters a passenger coach on such an invitation, or under such a permission, and the transportation commen{)es, a contract between the passenger and carrier is implied. The carrier, by holding out its passenger train or coach for the carriage of passengers, offers to carry them with due care; and the pasllenger, by entering the coach, and allowing himself to be transported, accepts the offer, and impliedly agrees to pay his fare, and thus the contract becomes complete. .· The presumptions referred to are not conclusive: . Proper evidence or countervailing circumstances may rebut them. But, in the absence of these, they are wise and salutary, and should have proper consideration. They are but the application of the established rules of agency to the business of the common carrier. That the servant of a carrier, in charge of a passenger coach and engine which are carrying persons over its railroad, should be presumed to have the authority from the carrier to accept such persons as passengers, is but the application of the familiar rule that the master is bound by the acts of the servant, within the scope of the usual business confided to him, because the master is presumed to authorize and approve the known acts that are incident to such an employment. Story, Ag. (9th Ed.) § 56. In view of this presumption, and the further presumption that the deceased was lawfully riding, which arises from the fact that he was riding over defendant's railroad, through its yard, in one of its passenger coaches, which had brought hill and others to the depot a few hours before, drawn by one of its engines, operated by one of its engineers, and conducted by its general yard master, we are of the opinion that there was some evidence in this case tending to show that the relation of carrier and passenger existed between the defendant and the deceased, and that the question whether this relation did exist should have been submitted to the jury. The judgment is accordingly reversed, and the cause remanded for further proceed· ings not inconsistent with this opinion.
UNITED STATES v. PEACE et at. (Cireult Court of Appeals, Fourth Circuit. February 7, 1893.)
No. 25. INTERNAL REVENUE-TAX ON SPIRJTs-DISTILI,ERY WAREHOUSES.
Rev. St.. § 3293, as amended by Act :May 28, 1880, § 4, (21 St. at Large, p. 146,) requires distillers to give a bond conditioned to· pay the tax on spirits sooted in distillery warehouses, before removal therefrom, 01" within three years from the date of tlle bond. Held, that the destruction ot