*174On Petition for Rehearing.
February 20, 1896.
PER CURIAM.The application for a reargument of this case is mainly based upon the ground that the court overlooked and failed to consider the evidence of the conductor of the train that no brakeman had authority to eject trespassers; that, on the contrary, the exercise of any such authority by brakemen was expressly forbidden by the company. It is assumed that we have decided, not only that (a) the duties of a brakeman upon a freight train are such that, in the absence of evidence showing the scope thereof, it will be presumed that he has implied power to remove trespassers from the train, but also (b) that this will be conclusively presumed, even against the uncontradicted evidence that no such power was conferred, but, on the contrary, expressly withheld, and its exercise forbidden, by the railway company. Although the testimony of the conductor was very briefly referred to in defendant’s statement of facts, it was not once alluded to in either the printed or oral argument, but the case was argued exclusively upon the question whether implied authority on part of brakemen to eject trespassers is to be presumed from the nature of their employment. This question we answered in the affirmative, but the further question, whether this presumption was conclusive, or whether it might be rebutted by evidence affirmatively showing that such authority was expressly withheld, or its exercise forbidden, was not considered or decided by us.
A railway company owes trespassers no contract duty. Neither are trespassers in a position to invoke the doctrine of apparent authority. They can only, under any circumstances, hold the company liable for acts of its agents or servants done within the scope of their actual authority, either express or implied. Therefore, while we are of opinion that the general duties of brakemen are such that their implied authority to eject trespassers will be presumed, yet we are also of opinion that as to. a trespasser, which plaintiff clearly was, this presumption may be rebutted by evidence showing that such authority was expressly withheld, or its . exercise forbidden; and, if that fact was established, the defendant *175would not be liable to the plaintiff for the acts of its brakeman in ejecting him from the train. How strong or complete this evidence should be, in order to make the question one of law, for the court, instead of one of fact, for the jury; it is unnecessary now to consider, further than to say that, in view of the general nature of the occupation of brakemen, the evidence that authority to eject trespassers had been expressly withheld or forbidden should be clear and full, in order to overcome the presumption of the existence of such implied authority. The testimony of the conductor of this particular freight train was the only evidence on the subject. It did not appear how long he had been in the employment of the defendant, or what was the extent of his knowledge of the rules of the company of of the general usage on its trains. The “bulletin” of the company to which he referred was not produced. No general officer of the company was called as a witness. In view of all these circumstances, we are of opinion that, although the testimony of the conductor was not contradicted, yet the question of the authority of the brakeman to eject the plaintiff was one for the jury.
Application denied.