This is an action brought by the plaintiff to recover damages for an injury received by him while upon the cars of the defendant, a railroad corporation and common carrier of freight and passengers.- The Superior Court, upon demurrer overruled and a hearing in damages, rendered judgment for the plaintiff to recover $1,000 damages. The defendant appeals, and the case is before this court upon that appeal. . .
Two reasons of appeal are assigned :—
1st. Because upon the facts found by the court the plaintiff was at the time of the accident a trespasser on one of the defendant’s freight trains, upon- which no passengers were transported, and seeking to obtain -a passage on the road without the consent or knowledge of the defendant and without payment therefor; and that he is therefore not *150entitled to recover for the damage which he claims to have received.
2d. That certain questions and answers (stated in the finding) were inadmissible and that the court erred in receiving them.
The 'whole controversy in the case depends upon this question — was there any contract relation, express or. iim plied, between the plaintiff and the defendant in this case; or, in other words, was the plaintiff a passenger according to the legal meaning of the term on the defendant’s road at the time the accident happened? ' 1
We. have no hesitátion in answering this question in the negative, and in saying that the defendant, under the facts disclosed in the finding, was not liable for more than nominal damages. The plaintiff was in no legal sense a passenger on the road, but was in the car at the time without the consent or knowledge of the defendant. This clearly appears from the facts disclosed. The train' upon which he was injured was, so far as the case shows, exclusively a freight train; there was no passenger ear attached, and no invitation to the. plaintiff nor to the public to take passage upon it. The plaintiff paid no fare, and whether he intended to pay or not when called upon is of no consequence, so that his good or bad faith in taking his place on the ear among the horses is quite immaterial. He had no business to be there without the consent of the defendant, and he had no rights except that of immunity from wilful and wanton injury common to all citizens. Railroad companies have the clear and undoubted right to make rules and regulations that are reasonable and proper for the running of their trains. It would be impossible to conduct their vast business otherwise. If a person desires to be transported as a passenger he must comply with the rules of the company in regard to payment of fare and conduct while on the train, and all other reasonable requirements of the company. If a person desires to have his goods transported he must in like manner comply with the rules of the company in relation to all matters appertaining to the shipment, transfer *151and delivery of the goods transported. - The whole duty of the company towards shipper or passenger is a duty resting entirely upon contract, express or implied.
Now what was the contract duty of the defendant towards this plaintiff? Was there any? What are the facts? The plaintiff really had no transaction whatever with the defendant. He bought no ticket, paid no freight, in no way made himself known to the company or any of its agents or employees, either as passenger, shipper, -or custodian of any of the horses which had been shipped by Avery. This person it seems, on the 14th of October, 1881, contracted with, the defendant corporation to transport eight horses from Huntington, Massachusetts, to Harlem River or New York. Avery owned but seven of these horses; one belonged to a brother of the plaintiff, Rev. Dr. Gardner of New York. The plaintiff had the custody -of this horse. Avery was applied to by him prior to October 14th, to permit this horse to go along with his horses under the same way-bill and to permit the plaintiff to accompany it. Avery engaged cars of the defendant for the eight horses a' day or two before the 14th, at which time he was fully informed by the defendant of its rates and rules for the transportation of live stock. One of these rules was that “ one person will be allowed to pass free when accompanying his stock to take care of it and paying the price for not less than nine thousand pounds, and in no case will he be allowed to ride free on a passenger train.”
At this time Avery said to the defendant’s agent that there might be another man to go with him, and he was told by the agent distinctly that one of them would have to pay fare. Avery at this time made no mention of the plaintiff and did. not disclose the fact that he was not the owner of all the eight horses. The name and existence of the plaintiff, the fact that he had any interest in one of the horses, or that he intended to accompany Avery, was, studiously or otherwise, concealed from th'e defendant. Avery in this transaction must be held to be the agent of the plaintiff and must be presumed to have communicated to *152him the terms upon which the animals were shipped; if not, the plaintiff Avas bound to ascertain for himself, before be started upon the train with the horses, whether or not he had a right to be there. The defendant concealed nothing; the rules and regulations were known and read of all men who had dealings with the company, or might have been, and it would have been very easy for the plaintiff to place •himself in a correct position in relation to the company; but the facts all show that'he was in a false position, and Avhether he intended to go on the train as a stoAV-away or not, is, as Ave have said, immaterial.
An excuse, or' something in its nature, is claimed by the plaintiff for his non-payment of fare. It is said that there was not time for him to procure a ticket after the horses were loaded and that he was expecting to pay his fare when the conductor called for it. But the- case does not show that it was the custom of conductors, or their duty, on a train of this character to call for fares or tickets; for aught that appears it was a stock train without any passenger car attached, while it also appears that the plaintiff was in .one of the cars with the horses. It Avill be remembered that the rules of the company permitted one person to ride in the car with his stock to look after, and take- care of it, and it is a reasonable presumption that the conductor Avas not expected to go through the stock car for the purpose of collecting fare or taking up tickets. It is a place where passengers would not be likely to ride unless the safety of their stock required it, or iinless 'their intent Avas to secure a free ride.
The plaintiff then of his own motion placed himself in this ear with the horses without the consent or knowledge of the .defendant, and against the rules of the company as - to payment of fare. He well knew, or had the means of knowing, that he had no right there as a passenger, and he also knew, or ought to have known, that it was a place of extra hazard; a ear loaded with horses being, in ease of collision or any serious accident, anything but a safe or desirable place for a passenger. Whatever injury the plain-: *153tiff received we think therefore must be attributed to his own neglect or misconduct in placing himself in a position of peril without any express or implied assent on the part of the defendant.
The question as to the admissibility of the evidence objected to is substantially disposed of by the foregoing considerations. The intention of the plaintiff to pay his fare if demanded, under the facts found was immaterial; his intent could not change the position of the defendant, or make it liable ex contractu. If he had actually paid his fare the case would present an entirely different aspect, but as the facts now stand he has no claim for more than nominal damages.
There is manifest error in the judgment complained of and it is reversed.
In this opinion Park, C. J., and Loomis, J., concurred; Carpenter, J., dissented; Pardee, J., did not sit.