The material and substantive allegations in the several counts in the plaintiff’s writ are that the defendants are common carriers-of passengers between Waterville and West Waterville; that as such carriers they are bound to carry all passengers and persons lawfully on their road carefully and safely over the same ; that the plaintiff’s intestate, being invited by one Poster, a foreman of a section in their employ and entrusted by them with the care and control of one of their hand-cars, to ride with him on said hand-car from Waterville to West Waterville, accepted the invitation ; that the plaintiff’s intestate while riding was run over by one of the defendants’ engines to which a paymaster’s car was attached and injured so that he died, and that this was through the negligence of the defendants and their servants, the deceased being in the exercise of due care.
To each count of the declaration thé defendants filed a general demurrer.
I. The liability of a railroad company differs as to their duty to their servants and to passengers. They are liable to servants for injuries resulting from want of due care in the selection of fellow servants, but if duly.selected, they do not guaranty against their negligence. Blake v. M. C. R. R. Co., ante. Not so as to passengers, to whom they are responsible for injuries arising from their negligence or incapacity, irrespective of the question -of more or less care in their selection. It is obvious that there is no, defect in the declaration so far as it relates to the negligence of the defendants, if they are to be deemed common carriers by hand-cars.
II. The plaintiff’s intestate was to be carried gratuitously. But that does not place him in a different position, so far as relates to his right to protection from neglect, from a pay passenger — if *71lie is to be regarded as a passenger to be carried by the defendants. Phil, & Read. R. R. Co. v. Derby, 14 How. (U. S.)468. Wilton v. Middlesex R. R. Co., 107 Mass. 108. Whar. Neg., § 355.
III. The plaintiff places her right to recover upon a neglect by the defendants of their duties to the intestate as common carriers. To impose upon the defendants the duties and responsibilities of common carriers, they must be shown to be such. The grave and important question, then, is whether the defendants, though common carriers of passengers along their road and in their cars for that purpose, are common carriers of passengers by their handcars used by their section men. Were the. defendants chartered as common carriers save by their cars for passengers? Have they by their acts or conduct held out to the public, or authorized their agents to hold out to the public, that they were common carriers by their hand-cars ? If they have not been chartered, and have not in any way held themselves out, as common carriers by handcars, then the duties and obligations resting upon them as carriers have not arisen.
If the defendants were common carriers in relation to the plaintiff’s intestate, they would be bound to carry all who should apply. Were, then, the defendants bound to carry on their handcars anyone asking to be so conveyed ? Assuredly not.
In Graham v. Toronto, Grey & Bruce Railway Co., 23 Up. Can. (C. P.) 514, the defendants agreed, with a contractor for the construction of their railway, to furnish a construction train for, ballasting and laying the track for a portion of their road then under construction ; the defendants to provide the conductor, engineer and fireman; the contractor furnishing the brakemen. On October 31, 1872, after work was over for the day and the train was returning to Owen Sound, where the plaintiff, one of the contractor’s workmen, lived, the plaintiff, with the permission of the conductor but without the authority of the defendants, got on. Through the negligence of the person in charge of the train an accident happened, and the plaintiff was injured. “The fact,” remarks Hagarty, O. J., “ that the defendants’ engine driver or conductor allowed him to get on the platform, does not alter my view of the case.
*72“I cannot distinguish it from the case of a cart sent-by its owner under his servant’s care to haul bricks or lumber for a house he is building. A workman, either with the driver’s assent or without any objections from him, gets upon the cart. It breaks down, or by careless driving runs against another vehicle, or a lamp post, and the workman is injured. I cannot understand by what process of reasoning the owner can in such case be held to incur any liability to the person injured. Nor, in my opinion, would the fact that the owner was aware that the driver of his cart often let a friend or person doing work at his house drive in his cart, make any difference. . . It could never be, I think, in the reasonable expectation of these defendants that they were incurring any liability as carriers of passengers, or that they should provide against contingencies that might affect them in that character.”
A similar question arose in Sheerman v. Toronto, Grey & Bruce Railway Co., 34 Up. Can. (Q. B.) 451, where one of the workmen was being cárried, without reward, on a gravel train, and was injured so that he died, it was held that the deceased was not lawfully on the cars with the consent of the defendants, and a nonsuit was directed. “The workmen,” observes Wilson, J., “were not lawfully on the cars. They were not passengers being carried by the defendants. They were acting on their own risk, not at the risk of the defendants, and however unfortunate the disaster may have been, it,is only right the legal responsibility should fall on those who ought to bear it, and not upon those upon whom it does not rest.” In this case “ it appeared that it was not necessary the defendants should carry the men to and from their work, and that they never agreed to do more than to provide cars for carrying ballasting and materials for track laying.”
The defendants not being common carriers, so far as relates to their liability to the plaintiff’s intestate, the declaration not disclosing facts which show such liability, must be adjudged bad. Eaton v. Delaware, L. & W. R. R. Co., 57 N. Y. 383. Union Pacif. R. R. Co. v. Nichols, 8 Kan. 505. In Dunn v. Grand Trunk R. R. Co., 58 Maine, 187, the plaintiff was riding in a *73saloon car atttached to a freight train, and paid the customary fare for conveyance in a passenger car.
IV. A master is bound by the acts of his servant in the course of his employment, but not by those obviously and utterly outside of the scope of such employment. If not common carriers, a section foreman with his hand-car has no right to impose upon the defendants the onerous responsibilities arising from that relation. He has no right to accept passengers for transportation and bind the defendants for their safe carriage, and every man may safely be presumed to know thus much.
If the risk is much greater by this mode of conveyance, the plaintiff’s intestate by adopting it assumed the extra risks arising therefrom, and must be held to abide the unfortunate consequences.
No one becomes a passenger except by the consent, express or implied, of the carrier. There is no allegation of express consent by the defendants, nor of anything from which consent can be implied that the plaintiff’s intestate should be carried at their risk by tills unusual mode of conveyance.
Declaration bad.
Walton, Barrows, Virgin and Libbey, JJ., concurred.