It is obvious, from an inspec*44tion of the record, that this action was brought under the act of February 2,1862, authorizing the heirs, representatives, or relatives of deceased persons to sue for and recover damages, when the death of the ancestor, relative, testator, or intestate has been caused or occasioned by the negligence, culpable or wrongful act of another; or at least that it was so treated and regarded in the court below. Evidently, there is a manifest difference in respect to the parties by whom the action may be maintained, and the character of damages which may be recovered, when the suit is under the Constitution instead of the statute. (Paschal’s Dig., art. 15, et seq.;.Const. 1869, art. 12, sec. 30.) That there is no such conflict, however,'between. the provisions of the statute and Constitution, so that the former is abrogated by the latter, seems to be decided, by the majority of the court, in the case of Houston and Texas Central Railway Co. v. Bradley, (guardian, &c.,) 45 Tex., 171; although it is said in-the opinion that “the effect of the constitutional provision on the act of 1862 is not raised by the pleadings, and not discussed in the briefs.” That action, however, like the present one, though based upon the statute, was brought after the adoption of the Constitution. If the statute was repealed by the Constitution, whether the effect of such repeal had been raised in the pleading or discussed in the briefs or not, as there would have been no authority of law for such an action as authorized by the statute, the judgment could not have been affirmed. The point in the mind of the judge by whom the opinion was prepared, to which reference is had in the remark which I have quoted, relates, I suppose, to a question which might have been made in that case, touching the right of parties entitled to an action under the Constitution as well as the statute, to recover in the same suit exemplary damages as well, as such as are given by the statute.
But if we concede that a recovery might be had in olio action for all such damages as a party may be entitled to, either under the Constitution or statute, and that separate *45and consecutive .actions may be maintained by the different parties named in the Constitution, as appellee did sue for or recover exemplary damages, whether the court below erred in its ruling upon appellant’s exceptions, or whether the judgment in appellee’s favor for the entire damages assessed by the jury, leaving appellant, in the opinion of the presiding judge, subject to other actions of like character by the children of the deceased husband, must be determined by reference to the statute upon which, as we have said, the action and judgment are based.
The plain and obvious purpose and effect of the statute are to give to the parties therein named an action similar in character to that which might have been maintained by the party injured if death had not ensued, when death ensues by the means or under the circumstances indicated in it. But, as counsel for appellant says, “the act pregnantly negatives the construction which would .authorize a succession of independent actions by the several parties entitled.” Unquestionably, it may be brought by all or any one of the parties; but whether brought by one or all, it is brought for the sole and exclusive benefit of the surviving husband, wife, child or children, and parents of the deceased, who are alive at the date of the recovery. If the suit is brought by only one of the parties entitled, and he dies pending the action, it does not abate, but it may be prosecuted to judgment in the name or names of some one or more of the parties entitled. Unquestionably, all parties entitled to share in the recovery may, and no doubt should, more appropriately join in the suit; but if some of them fail or neglect doing so, any one of them may maintain and prosecute it; but he must do so for the benefit of the other parties as well as himself. . If a recovery is had, whether the suit is brought by one or all, the amount-recovered “shall be divided amongst the persons entitled under the act, or such of them as shall then be alive, in such shares as the jury shall find and direct.”
To enable the jury to make this division, where all parties *46entitled have not, joined in the suit, the petition should show all amongst whom the amount recovered should be divided; and the judgment should award to. each of the parties for whose benefit the action is brought, the share as found and directed by the jury. When it appears, from an inspection of the petition, that it does not contain the proper averments to enable the court to distribute the damages as contemplated by the statute, it is subject to exception; and when the facts are sufficiently exhibited by. the pleading, but the judgment fails to divide the damages assessed by the jury among the parties as directed by the statute, it is error.
It is also insisted, by the appellant, that the judgment is erroneous and should be reversed, because appellee’s husband, when injured, was not a passenger, but was, as he well knew, wrongfully on appellant’s cars.
It appears, on the face of appellee’s petition, that the deceased, when he received the injuries which caused his death, was on a freight train. The evidence shows that- there was no person on said train but the employés of appellant, except the deceased, wrho had been an engine-driver, running a train on appellant’s road for a year or two, until about a month or six weeks previous to his death, and well knew that passengers were not allowed to travel on freight trains on appellant’s road; that the officers in charge of such trains were forbidden to allow parties to ride upon them without a special pass from the general superintendent of the road; that no such pass could be gotten without a release of appel•lant from damages in case of accident; that this was the condition upon which permits to ride upon freight trains were given, because of the greater risk of accidents to passengers on freight trains than on passenger trains, and because the company would not assume such risks on behalf of persons desiring to travel in this unusual and extra-hazardous manner.
- On the other hand, it cannot be doubted that deceased was riding on the train with the knowledge and consent of the *47conductor. But whether he paid fare, or had a pass or permit to travel on a freight train, is not shown.
Under this state of case, the question to be determined, is whether appellant had assumed the risk of a common carrier of passengers in respect to the deceased, while thus riding upon its freight train; or, in other words, whether deceased was, in "contemplation of law, a passenger on appellant’s train; or if not such passenger, strictly speaking, whether the assent of the conductor to Ms getting upon the train gave him the right to ride upon it, and render appellant responsible for any injury done him while thus on the train, to which he in no manner contributed.
Appellant, as a railway company, is a common carrier of both freight and passengers; but has, unquestionably, the right to make reasonable regulations for conducting its business; and parties dealing with it must conform to such regulations. That a regulation of a railway company, that freight and passengers will be carried on its road in separate trains, is a reasonable regulation, can hardly be doubted by any one. Indeed, it seems a highly salutary regulation, for the public as well as the company. Mor can it be controverted, when a railroad company makes other suitable provision for passen-. ger travel, that no one has the right to demand that he shall be allowed to ride in its trains devoted exclusively to the carrying of freight. If a party, in violation of such regulation, and without the consent of the company, forces himself into one of its freight trains, it surely cannot be supposed that the company could be held responsible to him in its character an a carrier of passengers; or that the party who should thus contribute to the injury which he might sustain while thus WTongfully in the train, may maintain an action against the company for such injury. Unless he could, an action cannot be maintained under the statute by his heirs, representatives, and relatives, in case of his death.
It may be true, where a railroad company habitually permits passengers to travel on its freight trains, notwithstand*48ing it may by regulation prohibit it, that the company will incur the same responsibility to such passengers as if they were on the regular passenger cars. But when it is shown that the regulations of the company absolutely forbid passengers riding on freight trains, and where there are no cars attached to such trains except those ordinarily accompar nying trains exclusively for freight, or such as, by their appearance and manner in which they are fitted up, could not be properly regarded as inviting passengers into the train, the burden of proving that the party injured was justified in going upon such train as a passenger, properly devolves upon those who sue for damages resulting from inj uries sustained by him while on such train. Do the facts in this case show that appellant permitted passengers to travel on its freight trains, notwithstanding its regulation prohibiting it, to an extent or in a manner to warrant the deceased in supposing that he was authorized to get upon its freight train as a passenger ? Certainly they do not.
If, then, it can be inferred that the deceased was properly on the train, it must be upon the supposition that he had a special permit; or that the conductor of the train was authorized to annul or waive the regulation of the company prohibiting passengers from traveling in freight trains. But the evidence shows that the conductor had no such authority, and that the deceased must have known that he had not.
This is not the case of an ordinary traveler, unacquainted with the regulations of the railroad, or if acquainted with them at all, only in a general way; or of one who is uninformed as to the powers and functions of the officer in charge of the train, and who, if he knew that passengers had been sometimes carried by such train, might suppose that the officer in charge of it had authority to relax or set aside the rule in special cases; which seems to be the extent to which the case of Dunn v. Grand Trunk Railway, 58 Me., 187, relied upon by appellee, goes,—but which, even on its facts, seems to be greatly questioned by Judge Bedfield, the distinguished *49commentator on railroad law; (Redf. Am. Railroad Cases, 490;) and to have been denied by the New York Commissioners of Appeal, in the case of Eaton v. The Delaware, &c. Here, the deceased, who, only a short time- previously to his going on the train, had been in the employment of appellant, must have known that the conductor was forbidden to allow him to travel as a passenger upon the train.
It cannot, in view of all the facts of this case, be said that appellant had undertaken or contracted with the deceased to carry him as a passenger over its road, or that we are warranted in saying the prima-fade presumption that the deceased was wrongfully upon appellant’s train, when he received the injuries which caused his death, has been rebutted; and, if death had not ensued, that he could have maintained an action against appellant on account of the injuries which he received by the wreck of the train. The judgment must therefore be reversed and the cause remanded. And it is so decreed.
Reversed and remanded.