(after stating the facts). It is insisted by counsel for the appellant that the court erred in refusing to give instruction No. 4 asked by him. The instruction is as follows:
“If you find that Woodward was acting for plaintiff in regard to all matters concerning his transportation and fare, and that Woodward was representing and acting in plaintiff’s stead, with full authority to act, and Woodward knew when he left Benton that Whitacre had no right to ride as a free passenger on the contract, but intended, nevertheless, to evade or aid Whitacre in evading the payment of the lawful fare, and, while so engaged, plaintiff was injured without any wilful and wanton act of the defendant, plaintiff can not recover.”
The case of Hobbs v. Texas & Pac. Ry. Co., 49 Ark. 360, relied on by counsel for appellant, has no application to the facts in this case. There the train in question was a through freight train. The court said that the facts adduced at the trial were sufficient to bring notice home to Hobbs that the train was not intended for his accommodation, and said: “Where there is a division of the. freight and passenger business of a railroad, the presumption is that a person found on a freight train is not legally a passenger; and if he claims that he is, it devolves upon him to show a state of case that will rebut the presumption.”
In the case before us appellee was riding on a local freight train of the appellant, and under the statutes of this State he was entitled to enter the same and be carried thereon as a passenger. Section 6705, Kirby’s Digest. Appellee testified that if payment of fare had been demanded of him by the conductor he was ready and willing to pay his fare, and there is nothing in the record tending to dispute this testimony. It is true that the testimony shows that the appellee and Woodward went to the agent at Benton and insisted that he change the contract of shipment so that they would both be entitled, to be carried on it without the payment of fare, and the agent told the appellee under the tariff then in force he could not do this. The conductor states that he asked one of them (he does not say which) if they were in charge of the cattle, and that one of them said: “Yes.” The conductor then went on, and did not demand fare of either of them, and did not ask which one of them was in charge of the cattle. Appellee was on one of appellant’s trains upon which passengers are allowed to ride, and had a right to be carried as a passenger. He made no attempt whatever to conceal himself from the conductor or to evade the payment of his fare. He was permitted to ride by the conductor without the payment of any fare being demanded of him. He himself did nothing by word or act to deceive the conductor in regard to the matter. Hence we think that the instruction asked by the appellant was abstract, and, there not being any testimony in the record on which to base it, it was properly refused by the court.
Mr. Hutchinson says: “It is universally agreed that the payment of the fare or price of the carriage is not necessary to give rise to the liability. The carrier may demand its prepayment, if he chooses to do so; but if he permits the passenger to take his seat or to enter his vehicle as a passenger without such requirements,, the obligation to pay will stand for the actual payment for the purpose of giving effect to the contract with all of its obligations and duties. Taking his place in the carrier’s conveyance with the intention of being carried creates an implied agreement upon the part of the passenger to pay when called upon, and puts him under a liability to the carrier, from which at once springs the reciprocal duty and responsibility of the carrier. 2 Hutchinson on Carriers, (3 ed.) § 1019, 997c; St. Louis & S. F. Rd. Co. v. Kilpatrick, 67 Ark. 47.
In the case of Moore v. St. Louis, I. M. & S. Ry. Co., 67 Ark. 389, the court said:
“As a general rule, every one on a passenger train of a railroad company for the purpose of carriage with the consent, express or implied, of the company is presumptively a passenger.’’
Counsel for appellant complain also that the court erred in refusing instruction No. 5 asked by it.
This instruction is substantially the same as No. 4, and was properly refused for the reasons given in discussing that instruction.
Judgment affirmed.