In the view I take of this case it is not necessary to determine whether the plaintiff was strictly a passenger upon defendant's road, or whether in that character he can maintain this action. It is important only, to determine whether he was lawfully there, and if he was he was entitled to protection against the defendant's willful or negligent acts. That he was lawfully there, I think, cannot be doubted. The conductor had charge of the train and invited him to get on. He informed him that the defendant was in want of brakemen, and invited him to ride back with him with a view to employment in that capacity. The plaintiff had no reason to suppose that the conductor was doing an unlawful or unauthorized act in extending this invitation for the purpose mentioned, or that he was a trespasser or wrong-doer in accepting it. I think no authority can be found holding that a person, under such circumstances, is unlawfully or wrongfully upon a train; but there are numerous authorities in this and other States holding otherwise. This being so, there is abundant authority for holding that he was entitled to protection against the willful or negligent acts of the defendant or its agents. In the case of Lackawanna and Bloomsburgh Railroad Co. v. Chenewith (52 Penn., 382), at the request of the owner of a freight car, the agents of a railroad company attached his car to a passenger train, contrary to the rules and instructions of the company, and it was held that the car was not unlawfully on the road, and that the owner was entitled to compensation for injury from negligence to which the attaching his car did not contribute. In Philadelphia and Reading Railroad Co. v. Derby (14 How. [U.S.], 468) the plaintiff below was the president of another railroad company and a stockholder in the defendant, and he was invited by the president of the defendant to ride with him, not in the usual passenger cars, but in a small locomotive car used for the convenience of the officers of the company; and he paid no fare for his transportation. It was held that he was lawfully in the car, and that he could recover damages for injuries received by a negligent collision. It is said in the opinion *Page 396 of the court: "If one be lawfully on the street or highway, and another's servant carelessly drives a stage or carriage against him and injures his property or person, it is no answer to an action against the master, for such injury, either that the plaintiff was riding for pleasure, or that he was a stockholder in the road, or that he had not paid his toll, or that he was the guest of the defendant, or riding in a carriage borrowed from him, or that the defendant was the friend, benefactor or brother of the plaintiff. These arguments, arising from the social or domestic relations of life, may in some cases successfully appeal to the feelings of the plaintiff, but will usually have little effect when the defendant is a corporation which is, itself, incapable of such relations or the reciprocations of such feelings. In this view of the case, if the plaintiff was lawfully on the road at the time of the collision, the court were right in instructing the jury that none of the antecedent circumstances or accidents of his situation could affect his right to recover." InCarroll v. New York and New Haven Railroad Co. (1 Duer, 571) a passenger was riding in a baggage car, and although he would not have been injured if he had been in a passenger car, yet, as he took his place in the baggage car with the assent of the conductor, it was held that he was lawfully there, that he was not a trespasser or wrong-doer, and that he could recover for injuries received in consequence of a collision. In TonawandaRailroad Co. v. Munger (5 Denio, 255) and Munger v.Tonawanda Railroad Co. (4 N.Y., 349) the action was to recover for two oxen killed upon the railroad by a passing train; and it was held that no recovery could be had because the oxen were unlawfully upon the railroad. If they had been lawfully there, no matter how they came there, the owner could have recovered, by showing negligence on the part of the railroad company. InRobertson v. The New York and Erie Railroad Co. (22 Barb., 91) the plaintiff was badly injured, while riding upon the engine, by reason of the negligence of the defendant. The plaintiff had no right to ride upon the engine and he knew it. It was held that he *Page 397 could not recover because he was unlawfully on the engine; and he was nonsuited. But it is said, in the opinion of the court, that if he had been lawfully there he could not have been properly nonsuited. In Corrigan v. Union Sugar Refinery (98 Mass., 577) defendant's servant carelessly threw a keg out of a window, which hit and injured the plaintiff, who was in a passage-way below; and it was held that the plaintiff being there lawfully, could recover. In Driscoll v. Newark and Rosendale, etc., Co. (37 N.Y., 637) the intestate was lawfully in the vicinity of a place where the defendant's servants were engaged in blasting rock, and he was killed by a stone, thrown upon him by a blast discharged without giving any warning. The plaintiff recovered, upon the ground that there was a negligent act on the part of the defendant causing the death of the intestate, while he was lawfully in the vicinity of the blast. This whole doctrine, in the aspect in which I am now considering it, received considerable attention in the case of Nicholson v. The ErieRailway Co. (41 N.Y., 525). In that case the intestate was lawfully upon the defendant's track, crossing it, on his own business, by implied permission of the defendant. He was struck and killed by a car, which was set running by the force of the wind, the car not having been blocked or in any way fastened. It was held that the defendant was not liable, because it did not owe to the intestate the active duty of making its track safe for his crossing, and because no negligent act of the defendant had caused or contributed to the accident. But the decision of that case would, manifestly, have been otherwise, if any negligent act of the defendant had caused or contributed to the accident — as if its servants had negligently run the car against the intestate.
It will thus be seen that there is a general rule that, wherever a person or his property may lawfully be, he is entitled to protection against the negligent acts of another causing him injury or damage. If one be unlawfully in any place, and be injured in consequence of being there, by the carelessness of another, he is, generally, without remedy, because *Page 398 his own wrong contributed to the injury. But if one be lawfully upon a highway, upon a railroad, or in a railroad car, and while there, without any contributory negligence on his part, he be injured by the negligent act of another, he has his remedy for the injury. So, in this case, it matters not how the plaintiff came where he was at the time of the injury, or whether he was in the caboose or upon the railroad track, or whether he was strictly a passenger and entitled to care and protection as such, provided he was lawfully where he was at the time of the accident. His right to recover was established when he proved that the accident was occasioned by the careless acts and conduct of defendant's servants. If the plaintiff was not a passenger and entitled to care and protection as such, it is probably true, within the principles decided in the case of Nicholson v. ErieRailway Co. (supra), that he could not have recovered for any injuries caused to him by defects in the car or the track, and that defendant was not bound to protect him against such defects. In such case he was, probably, bound to use the car and the track as he found them; but the defendant could not claim exemption from liability for carelessly running a train against the caboose and dashing it to pieces, and thus injuring the plaintiff, who was in no sense a trespasser or wrong-doer, and whose conduct in no way contributed to the accident.
The judgment should, therefore, be affirmed, with costs.
For reversal, LOTT, Ch. C., DWIGHT and GRAY, CC.
For affirmance, EARL, C.; REYNOLDS, C., not voting.
Judgment reversed. *Page 399