CLARK, C. J., dissenting. Action for personal injury sustained by plaintiff while on defendant's freight train. The plaintiff testified that on 26 May, 1902, he boarded defendant's local freight, running from Rocky Mount to Richmond, at Garysburg, N.C. He then described the circumstances under which he went upon the train. "As I was going to Richmond I asked (69) the conductor on the train if I could come back with him the next day on his train. Captain Moody had charge of the train going to Richmond. He said, `Yes.' I was to help unload freight and load freight. I went to Richmond to take another man's run. He told me he would give me his place for ten days. He was a brakeman. I was expecting to get his place that night and come back next day. Did not get it, as he decided not to give it to me. I got on train between Richmond and Manchester after it started. I did not see conductor that day. Could not say he was on that day. It was the same train that I went to Richmond on, known as No. 90. Captain Moody was conductor on train that blew me up. The train stopped in Manchester yards, when I got on. William Savage was there. I got on flat-car not loaded, next to car loaded, with barrels. Box-car behind us. The conductor did not know whether I was on train or not. I saw engineer, fireman and first brakeman when I got on train day I was hurt, but did not speak to any one except Savage. The train was local freight; passed Garysburg every day coming and going. I could see it. Same train Mr. Gwaltney was engineer on. He saw me on the train. Two of the brakemen saw me, but did not speak to but one of them. He told me to get on and help unload barrels at next station, Clopton. The brakemen unloaded the car. The engine exploded not more than ten minutes after I got on the car."
There was testimony in regard to the extent of injury and value of services. Plaintiff offered to introduce pass issued by defendant 16 September, 1902, to plaintiff as an "injured employee" from Richmond to Garysburg. *Page 77
Upon defendant's objection, it was excluded. Plaintiff excepted. Upon the conclusion of plaintiff's evidence defendant moved for judgment of nonsuit. Motion allowed, and plaintiff appealed. after stating the case: The correctness of his Honor's ruling depends upon whether the defendant sustained (70) any contractual relation to the plaintiff from which a duty arose to him. The testimony presents no question of public duty or duty to the public as discussed in McNeill v. R. R., 135 N.C. 682, and other cases in which persons were permitted to go upon passenger trains or mixed trains on which passengers were taken.
It is too well settled to call for the citation of authority that a railroad company has the right to classify its trains and assign to them such service as is reasonable. That in the exercise of this right it may operate trains exclusively for carrying freight; and that when it has done so no person has a right to demand that he be carried upon such trains as a passenger. It is equally well settled that before a person can enter upon such a train and acquire the rights of a passenger he must show some contract made with some servant or agent of the corporation authorized to make such contract. Such authority may be shown either by express grant or necessary implication growing out of the nature or character of the employment. In view of these general and well-settled principles the question arises, whether the conductor, Moody, in charge of the freight train upon which plaintiff was injured had any authority to establish any contractual relation between plaintiff and the defendant corporation, either as passenger or servant, and impose any duty upon defendant, the breach of which, followed by injury, gave a cause of action.
The plaintiff insists that by the permission granted him to go upon the train to Richmond and return he became a passenger, or, if he is in error in this, he was by the agreement with the conductor made the employee or servant of the corporation. For the purpose of disposing of this appeal it is not important or even necessary (71) to discuss the question whether he became a passenger or an employee, because if he was, at the time of the injury, either, his right to go to the jury on the question of negligence would be the same. We are of the opinion that he was neither a passenger nor an employee.
Assuming, for the purpose of the discussion, that the conductor undertook to employ plaintiff, and that such employment extended to *Page 78 the return trip, the question of power is presented. Elliott in his work on Railroads, says: "The authority of the conductor ordinarily extends to the control of the movement of his train and to the immediate direction of the movement of the employees engaged in operating the train. * * * His authority does not, ordinarily, extend to making contracts on behalf of the company, but there may be cases of urgent emergency when he may make a contract for the company. He is to administer the rules of the company rather than make contracts for it. * * * The conductor has no general authority to make contracts on behalf of the company, but he may in rare cases of necessity, when circumstances demand it, bind the company by such contracts as are clearly necessary to enable him to carry out his prescribed duties." Elliott on Railroads, 302. In Eaton v. R. R.,57 N.Y., 382, it is said: "It is fallacy to argue that a conductor is a general agent for this purpose, assuming that his power would, as a rule, place him under the class of general agents; he only holds that position for the management of a freight train. The fact that the same word, `conductor,' is used to designate servants in two kinds of business, which the defendant has made perfectly distinct, tends to confusion. There is no real analogy between the duties of a conductor of a passenger train and those of the manager of a strict freight train. A different class of men would naturally be employed in the two cases. The (72) defendant has a right to assign specific duties to the one distinct from those performed by the other. It is a familiar rule in such a case that an agent cannot increase his power by his own acts; they must always be included in the acts or conduct of the principal. No act of a conductor of a freight train will bind the company as to carrying passengers, unless the principal in some way assents to it." In the same case it is said: "The employment of brakemen is no part of the ordinary duty of a conductor. The company gave him no power to make any arrangement of the kind. * * * It is not one of those cases where he has an apparent authority, including the act in question, but owning to a secret fact does not have it in the particular case." In Baldwin on Railroads, 248, it is said: "While he may at times have occasion to make or construe, or even vary contracts of the company, that is not his chief office. He holds, however, a somewhat analogous position to that of a shipmaster. The owners of the railroad have put him in charge of the persons and property on board his cars. In case of emergency, when prompt action, if any, must be taken to protect the interests confided to his care, his ordinary powers would become greatly enlarged." In Files v. Boston Albany R. R., 149 Mass. 204, *Page 79 it is said: "In the case at bar the conductor had no general authority, so far as shown, to take passengers on the locomotive engine, or any special authority to take the plaintiff. The conductor was not only in charge of a freight train, but on a road intended solely for the transportation of freight. The locomotive engine was obviously not intended for passengers, and he had in his charge no vehicle, nor any part of a vehicle, in any way adapted for passengers. In riding for his own convenience in a place where it was not safe or prudent to ride, the plaintiff took on himself the risks of so doing, whether he did so by the license or on the invitation of the conductor. It was not within the the apparent scope of the freight conductor's authority to permit persons to ride on his freight train, far less on the locomotive (73) engine thereof; nor can the fact that he had allowed the plaintiff to do so at a previous time, and also that the local freight agent and a conductor were known by the plaintiff to have ridden on the locomotive engine, make the defendant responsible for accidents which occurred thereby." To the same effect are Smith v. R. R., 124 Ind. 395;Gardner v. R. R., 51 Conn. 143. In R. R. v. Black, 87 Tex. 160 [87 Tex. 160], the question was discussed at length, and it was said: "If the conductor of a freight train, made up of cars suitable only for carrying freight, can, without authority of the railway company expressly or tacitly given, receive passengers upon such train and bind the railway for the risk of transportation, a conductor of a passenger train may with equal propriety load the coaches of his train with cotton or grain, and make the company liable as a common carrier of freight."
The distinction between the powers and rights of the conductor of a freight train and of a passenger train are clearly pointed out in the opinion in this case. It is, however, suggested that the burden would be upon the defendant to show that the conductor had no authority to make the contract of service. The authorities are to the contrary. In Eaton v. R.R., supra, it is said: "There is nothing in the business of a conductor which would lead to the conclusion that he had authority to make contracts with persons to act as brakemen. His apparent duties are to carry forward a train after it is organized. The business of organizing it is, in its nature, wholly distinct. It is, in fact, committed to a train despatcher. Under such circumstances there is no act on the part of the defendant by which he can be estopped from showing the conductor's real authority any more than a commercial house would be if one its travelers, in the course of a journey, assumed to hire a clerk to do business for his employers at home." (74)
In Purple v. R. R., 144 Fed Rep., 123, same case, 57, L.R.A., *Page 80 700, Sanborn, C. J., says: "In the absence of any rule or practice permitting freight trains to carry passengers, the presumption is that one riding for his own convenience on a freight train, an engine, a handcar or any other carriage of a common carrier that is evidently not designed for the transportation of passengers, is unlawfully there and is a trespasser."
In Cooper v. R. R., 136 Ind. 366, Howard, C. J., said: "While the the conductor and brakeman were in charge of the train, it does not appear that they had any authority to employ assistance in its management. No emergency is shown for the employment of the appellant. * * * No custom, rule or regulation of the appellee company is shown by which the appellant might pay his way by working on the train, assisting the brakeman or other employee. * * * At most, the appellant was upon the train by the sufferance of the conductor and brakeman, who were themselves without authority to receive him. Any dangers to which he might become exposed were wholly at his own risk. The company would be liable only for wilful injury to him."
In Powers v. R. R., 153 Mass. 188, in an opinion of Mr. Justice Devens, it is said: "It was held in Wilton v. R. R., 107 Mass. 108, that the invitation there given by the defendant's servant to the plaintiff to ride on the horse-car which the servant was driving was within the general scope of his employment, and even if it was contrary to the instructions of the driver, she was not a trespasser. In the case at bar the plaintiff was not on a passenger train, and he was riding in the caboose of a freight train, in a place which he could not have failed to know was not intended or adapted for the use of passengers, but solely for the accommodation of the defendant's employees engaged in managing (75) the train. Even if, therefore, the plaintiff had an invitation from the conductor of the freight train, he could not have supposed that the conductor was acting within the general scope of his employment, or that, independently of any rules of the corporation, the conductor had any authority to extend such an invitation. The ordinary business of conducting and managing a freight train does not involve any right to invite persons to ride upon such trains, or to accept them as passengers."
In Eaton's case, supra, Dwight, C. J., speaking of a contention similar to that of plaintiff's, says: "The contention of the plaintiff must go to the length of maintaining that the company was bound by the act of the conductor to take the plaintiff into is service * * * The conductor's authority to carry can only be incidental to his power *Page 81 to make a valid engagment for the plaintiff's service. The admission of such a doctrine would subvert familiar rules of the law of agency." We have been unable to discover any authority in which it is held that a conductor of a freight train has any power, save in case of an emergency, to employ servants to assist him in operating his train.
We do not deem it necessary to consider the liability of the defendant if there had been wanton or wilful injury, there being no evidence of either. It is said that the case should have gone to the jury. This suggestion is based upon the theory that there was evidence of a contractual liability imposing upon the defendant the measure of duty prescribed for either a passenger or an employee. As we have seen, neither relation existed. There was, therefore, no question to be submitted to the jury. The plaintiff having failed to lay the basis upon which any such duty arose, there was no inference to be drawn from the testimony by the jury. The effect of the agreement made between plaintiff and conductor was for the Court. There is no uncertainty as to its terms or legal signification. As was said in Eaton's case, (76)supra, "The solution of the questions at issue is not to be sought in the rules of law appertaining to common carriers. It must be obtained from the principles of the law of agency. The true inquiry is, whether the conductor, as an agent of the defendant, had the power to take the plaintiff upon the train in such a way as to bind the defendant as a carrier to him as a passenger" — and, we may add, "or an employee." The answer to this question being in the negative, and there being no evidence of wanton or wilful injury, his Honor correctly directed judgment of nonsuit. We find no error in the ruling of his Honor excluding the pass. The fact that several months after the injury the defendant issued to the plaintiff a pass from Richmond to Garysburg, describing him as an injured employee, does not tend to show any ratification of the attempted employment by the conductor. The exception cannot be sustained.
No Error.