On Petition for Rehearing.
Mr. Justice Beandelivered the opinion.
4. The point is earnestly pressed that because, under the rules of the defendant, passengers were carried on freight trains only on the conditions and limitations set forth in Form No. 208, the conductors of such trains had no authority, real or apparent, to bind the company by receiving any person on their trains as a passenger save on the conditions named; in other words, the effect of the argument, as we understand it, is that the limitations on the authority of the conductor are binding on all persons riding on his train, whether known to them or not. Such a doctrine is, in our opinion, opposed to the authorities, and contrary to the rules governing the relation of principal and agent. It is common learning that a principal is bound, not only by the acts of his agent within the actual authority conferred upon him, but within his apparent authority, and that he cannot hold one out to the world as possessing authority over a given subject, and deny liability for his acts by relying upon some secret instructions not known to persons dealing with him. When, therefore, the defendant permitted and allowed persons to be carried on its freight trains at all, and under any conditions, as part of its. general business, it necessarily invested the conductor of such train with authority to pass upon the question of whether one applying to ride should be allowed to do so, and to determine who should and who should not ride thereon. For that purpose, he stood in the place of the company, as its agent, and had authority to act for it. He was an agent invested with actual authority to receive and carry persons on his train on certain conditions, and, if he violated his instructions, and carried unauthorized persons ignorant of the limitations on his authority, the com*167pany is, nevertheless, liable for an injury received by them through the negligence of the operators of the train. Counsel argues that a person riding on a freight train in pursuance of the rules, and under contract with the company, is not a passenger, and therefore defendant is not a earlier of passengers on such trains, and as a consequence the conductors thereof have no authority, actual or apparent, to receive persons in that capacity, or bind the company by so doing. The rules of defendant providing for and regulating the carriage of persons on freight trains designate them as “passengers,” and, we think, manifestly properly so. Generally speaking, a passenger is one who travels in a public conveyance, by virtue of a contract, express or implied, with the carrier; and a carrier of passengers is one who undertakes to carry persons from place to place gratuitously, or for hire: 5 Am. & Eng. Ency. Law (2 ed.), 480. It is obvious that in this sense a person riding on a freight train of defendant, in pursuance of its rules and by its consent is a passenger. It is true he may be a passenger with restricted rights, as against the company, because of the terms of the contract under which he is being carried, but he is none the less a passenger. He is not a licensee, trespasser, servant, or employe of the company, but a passenger, and entitled to all the rights of such, except as restricted by the terms of his contract, and the character of the train upon which he is riding. It is, therefore, within the general scope of the employment of the conductor of a freight train, under the rules of the company, to receive and carry passengers thereon, and we must adhere to the view heretofore expressed, that his act in so doing is binding on the company, although he may have violated his instructions or its rules and regulations.
We do not deem it necessary to go with counsel through an exhaustive and critical review of the authorities, but since so much reliance seems to be put on Powers v. Boston & M. R. Co. 153 Mass. 188 (26 N. E. 446), it is well to observe that in that case defendant was not carrying persons on its freight trains as a business. Moreover, the plaintiff, who had formerly been *168employed by the defendant, had received and receipted for books containing the rules of the company, and at the time of his injury was riding in a car “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 employes engaged in the operation of its trains,” which fact of itself, was sufficient, under many of the decisions, to charge him with knowledge of the limitations on the authority of the' conductor. In the case at bar, on the other hand, defendant assumed to carry on its freight trains all persons who complied with certain conditions, as a part of its general transportation business; and the car in which defendant was riding at the time of his injury was fitted up for the carriage of passengers, and was such as the defendant used on its regular • freight trains for that purpose. It is therefore distinguishable from the Powers and all other similar eases, and, in our opinion, is in principle the same as the Lucas, Everett, Spence, and other cases cited.
5. There are several assignments of error not particularly noticed in the opinion, although substantially covered by it, to which our attention is again called. It is said the court erred in modifying the instruction requested by the defendant, to the effect that if at Kamela the train was stopped at the proper place to enable the employes to do their work, and while so stopped the plaintiff had ample time and a reasonable opportunity to leave the train, but failed to do so, he could not recover, by inserting after the word “time” the words “suitable and safe place.” There was no error in this. If the plaintiff was a passenger, or entitled to the rights of such, whether in the full sense of that term or not, the company owed him the duty of stopping the train at a place where he could, in the exercise of reasonable care, alight with safety; and this duty was not discharged by stopping at a place convenient for the employes to do their worlsj and giving him time to leave the train there, unless it was a suitable place for him to do so.
6. Again, it is urged that the court erred in not allowing *169the conductor of the train to state what his belief was as to whether plaintiff was aboard when the caboose passed the station going west. The conductor’s belief upon this subject had no bearing upon the question of the negligence charged or the plaintiff’s rights. The conductor testified that the accident occurred through the failure of the engineer to observe or obey signals, and that, even if he had known the plaintiff was on the ear, he would not have stopped it at the station to permit him to alight, because it was not customary to do so. His belief, therefore, did not affect his conduct, and was wholly immaterial.
7. Error is also predicated on the fact that the court would not permit the defendant, on the cross-examination of the conductor, to show, as it made an offer to do, that before the train left La Grande plaintiff applied to him for permission to ride, and was told that he could not do so unless he had a permit or pass; and that afterwards the plaintiff was asked for transportation, and, as he had none, was told that he must get off at Hilgard, a station east of Kamela. The witness’ testimony in chief was confined to what occurred at Kamela, and to the fact that the last time he saw plaintiff was about 2% miles east thereof, when he Avoke him up, and told him the train was approaching the station. Nothing Avas said by him as to hoAV plaintiff came to be aboard the train, or by what authority he was riding thereon, or what occurred at La Grande, a.nd therefore the testimony sought to be elicited by the cross-examination was not so intimately connected with the examination in chief as to make the ruling of the court error. If the offer to.prove Aims true, the testimony would no doubt have beeen very material, but it was a part of defendant’s ease in chief, and could not be made out on the cross-examination of plaintiff’s Avitness. The defendant subsequently called the conductor as its own witness, and examined him at length, but, as no such proof was made or offered, the riding on this question of cross-examination, even if it had been error, would hardly justify a reversal of the judgment.
Rehearing Denied.