delivered the opinion of the court on the first appeal.
Appellee was a passenger on one of appellant’s local freight trains, and was going from Kosciusko to Durant. Upon arriving at Durant, and in attempting to alight from the platform of the car in which she was traveling, the train was moved or jerked, causing her to fall and become injured. At the close *97of the evidence appellant requested and was refused a peremptory instruction, and the cause was submitted to the jury, resulting in a verdict and judgment for appellee.
Code 1906, § 4054, provides: “But for injury to any passenger upon any freight train, not being intended for both passengers and freight, the company shall not be liable, except for the gross negligence or carelessness of its servants.” It is not contended that any gross negligence was shown on the part of appellant’s employes; but the contention is that the train upon which appellant was traveling was intended for both passengers and freight. This train was strictly a freight train, with only the appliances of such, but had. attached to it a caboose, or way car, in which all persons desiring so to do were permitted to travel. One of the witnesses stated, without contradiction : “That train, the same as other local freight trains, is equipped with a caboose, known as a ‘way car.’ That car is divided into two partitions, and one is where the train crew carry their tools, lanterns, and other necessary equipment, which is carried on the caboose for use in case of accident, such as frogs and chains, and the other part of the caboose is where people would ride, and in that part of the caboose, also, is carried chains and brasses and coupling pins and so forth, underneath the seats.” Such a train cannot be said to be intended for both passengers and freight, as was held by this court in Perkins v. Chicago, St. Louis & New Orleans R. Co., 60 Miss. 726, wherein this court said: “A train which is strictly a freight train, with only the appliances of such a train, on which persons are not sought to be induced to take passage by the offer of other accommodations than are afforded by freight trains, cannot be said to be intended for both passengers and freight, although, all persons may become passengers by going into the conductor’s caboose.” The peremptory instruction requested by appellant ought to have been given.
Reversed and remanded.
*98After tke remand of tke cause tke case was again tried in tke circuit Court and a judgment rendered, predicated of a peremptory instruction, for tke defendant, from wkick tke plaintiff appealed to tke supreme court, tke second appeal. Tke same counsel appeared for tke 'respective parties.
[The briefs of counsel on the second appeal so far as they dealt with the law of the case were not materially variant from their briefs on the first appeal; they dealt more largely with the facts, the plaintiff’s counsel insisting that the case was materially different in its facts on the two appeals while defendant’s counsel urged that there was no material difference.]
Anderson, J.,delivered the opinion of the court on the second appeal.
This case was here on appeal once before. On the former appeal it will be found reported under the style “Illinois Central Railroad Company v. White,” ante, 91, 52 South. 449. On that appeal judgment was reversed and case remanded on the ground that no liability was shown on the part of the railroad company, the court holding that the jury should have been instructed to return a verdict in its favor. On the second trial, at the conclusion of the testimony, the court instructed the jury at the instance of appellee to return a verdict in its favor, which was done and judgment "entered accordingly, from which appellant prosecutes this appeal.
It is argued with great earnestness on behalf of plaintiff that the facts developed in this record are materially different,from those skown on the first trial; that on the record here now, it was a question for the jury whether the train on which appellant was injured was one “being intended for both passengers and freight,” in the sense of the language used in Code 1906, § 4054. After a most careful examination of the records on both appeals, we find there is no material difference in the facts as *99developed on the second trial from those shown on the first. The train on which plaintiff was injured was a regular local freight train, equipped with the ordinary appliances and conveniences of a local freight train, except that the car attached to it for the use of passengers was what is known as a “way car”- with compartments for passengers, baggage, train-men, and the tools and implements used in connection with the operation of a local freight train. It was neither a regular passenger train nor a “mixed or accommodation train.” It is true that plaintiff in her testimony speaks of it as an “accommodation train,” but she also describes the character of the train; and her evidence taken in connection with all the other evidence in the case shows without material conflict that it was a local freight train and not an “accommodation or mixed train.” It follows that there was no error in directing the jury to return a verdict in favor of the railroad 'company.
It is argued Avith great ability and show of reason on behalf of plaintiff (and it is so contended in another case now in the consultation room involving this same question), that any freight train whatever Avhich has attached to it a car for pas-, sengers to ride in, and on which passengers are invited to travel by the railroad company, is a freight train “intended for both passengers and freight.” We are constrained to make an attempt to further elucidate the intent and purpose of the statute involved.
The last clause of the statute (Code 1906, § 4054), which is controlling in this case is in derogation of the common law. In determining the true interpretation of such a statute, it is a material aid to have in view the common law as it existed when the statute was enacted, in connection with the origin and history of the statute. According to the common law the carrier owes the passenger the utmost degree of care for his safety regardless of the character of the car or train on which he is being carried. There is no distinction in this respect between *100freight trains and regular passenger trains, provided such freight trains are used for the carriage of passengers. At common law there is only one class of trains in the operation of which the carrier is relieved from the exercise of the utmost degree of care for the safety of persons traveling on such trains, and that is those trains which are not intended for and which do not carry passengers. Persons riding on such trains contrary to- the rules of the carrier are trespassers, and even when riding by permission of the trainmen in charge of such trains, are bare licensees. 33 Cyc. 763, 764. In case of injury to persons so carried, the carrier is not liable unless such injury is caused by its wilful or intentional wrong or gross negligence. 33 Cyc. 815. In this condition of the common law the legislature enacted chapter 155, Laws of 1876, page 264, as follows:
“Whereas, Certain railroad companies, doing business in this state, now refuse to carry passengers upon their freight trains, on account of the strict legal liability attaching to carriers of passengers; and,
“Whereas, Such refusal on the part of said railroads to cany passengers upon their freight trains, results, generally, in great inconvenience, annoyance and loss to the citizens located upon the line of said roads; therefore,
“Section 1. .Be it enacted by the legislature of the state of Mississippi, That all railroad companies, running trains in this state, shall hereafter carry upon their freight trains, all passengers who shall desire to ride thereon, and- who shall conform to the rules of said railroads applying to passengers upon passenger trains in relation to purchase of tickets, and so forth, and such passengers upon freight trains shall be furnished with the best accommodations that said freight trains may have at that time that such passengers may apply for passage; Provided, That railroads shall not be required to furnish passengers upon freight trains any additional accommodations to those which freight trains ordinarily have.
*101“Sec. 2. Be it further enacted, That, in case of damage or injury to any passenger or passengers, upon any freight train, the railroad company shall not be liable therefor, except upon proof of fraud, malice or gross negligence on the part of the company, its agents or employes; Provided, That the provisions of this section shall not apply to ‘mixed’ or ‘accommodation’ trains, so called, which are now run for the accommodation of both passengers and freight.
“Sec. 3. Be it further enacted, That any railroad company who shall refuse to carry upon any freight train, any person applying for passage thereon, who shall conform to ¡the rules o'f the railroad prescribed for passengers upon passenger trains, shah forfeit and pay to the person so refused the sum of fifty dollars, to be recovered by action before any court of competent jurisdiction.
“Sec. 4. Be it further enacted, That the provisions of this Act shall not apply to through freight trains run by telegraphic order.”
This statute was revised and brought forward into the Code of 1880, forming section 1054 of that code which appears in the same language in Code 1892, § 3557, and Code 1906, § 4054, which is as follows: “Every railroad company shall be liable for all damages which may be sustained by any person in consequence of the neglect or mismanagement of any of its agents, engineers, or clerks, or for the mismanagement of its engines; but for injury to any passenger upon any freight train not being intended for both passengers and freight, the company shall not be liable, except for the gross negligence or carelessness of its servants.”
In Perkins v. Chicago, etc., R. Co., 60 Miss. 726, Judge Campbell, who prepared the original draft of the Code of 1880, speaking for the court, said:
“The train on which the appellant was a passenger was a ‘freight train, not being intended for both passengers and *102freight/ within the meaning of section 1054 of the Code of 1880, and the action of the circuit court upon the instructions was correct. The latter part of that section is a substitute for section 2 of the act of March 15, 18/6 (Laws 1876, p. 265),, which employed the terms ‘mixed’ or ‘accommodation’ trains,, ‘run for the accommodation of both passeng’ers and freight.’ A train which is strictly a freight train, with only the appliances, of 'such a train, on which persons are not sought to be induced to take passage by the offer of other accommodations than are afforded by freight trains, cannot be said to be intended for both passengers and freight, although all persons may become passengers by going into the conductor’s caboose. They who take passage on such a train cannot expect, and have no right to demand, the conveniences and attention required with respect to passenger trains or those intended by the earner for both freight and passengers.”
It will be noted that the court says in that case that the latter part of Code 1880, § 1054, is a substitute for section 2 of the Act of 1875, supra.
In the case of Illinois, etc., R. Co. v. Trail, 25 South. 863, the court speaks of the train on which the injury occurred as a through freight train. We have examined the record in that case and find that it was a freight train which did not stop at all stations, but the appellee Trail testified that it carried passengers, tickets were sold for it, and he paid the conductor on this occasion because he had not time to purchase a ticket, and that it had attached to it a regular passenger caboose. The court held that the railroad was only liable for gross negligence because the train in question was not “designed to carry passengers.” We understand the court to hold in Perkins v. Railroad Co., supra, that the proviso to section 2 of Code 1876 means the same thing as the latter part of section 1054, Code 1880 (sections 3557, Code 1892, and 4054, Code 1906). The evident purpose of the legislature in the adoption of this *103statute was to relieve railroad companies from the exercise of the highest degree of care as to passengers on all freight trains whatsoever, except “mixed or accommodation trains,” which were left as at common law.
Since the construction put on this statute in Perkins v. Railroad Co., supra, it has been twice re-enacted in the same language in the Codes of 1892 and 1906. The rule is that where a statute has been construed by the highest court of a state and afterwards re-enacted in substantially the same terms, the legislature by such re-enactment, adopts along with the statute, such construction.
What is intended by the language “intended for both passengers and freight,” or “mixed or accommodation trains,” which are synonymous in meaning? The court knows what a “mixed or accommodation train” is, for everybody knows; it is a matter of common knowledge of which the court takes judicial notice. In section 2, act of 1876, supra, the words “mixed or accommodation” are put in quotations and are referred to as “so called,” showing that it was a matter of general understanding at that time what class of trains was intended to be covered by the proviso to that section. A “mixed or accommodation train” is a train equipped and.having the appliances and facilities suited for the carriage of passengers as well as freight. Its purpose and business is as much the one as the other. In its arrangements, the safety of passengers is as much looked to as the carriage of freight. It usually has two or more coaches for passengers, and separate compartments or coaches for the races, and a baggage compartment or car, etc., and runs on a regular schedule, and subordinates its freight business to the passenger business to the extent necessary to.make connections with other passenger trains on its own line and those on connecting roads, and it stops opposite stations for the convenient ingress and egress of passengers. On the other hand a freight train not intended for both passengers and freight, or *104which is not a “mixed or accommodation train” in the meaning of this statute, is a regular freight train on which passengers are invited to travel, having for their convenience a caboose, way car or passenger coach attached, but has none of the other equipment or appliances of a regular passenger train beyond what all freight trains have, and in malting its schedule does not make connection with other trains on its line or those of connecting carriers if prevented by the proper handling of its freight business. In other words, it is a train on which the passenger business is subordinated to that of the carriage of freight; a train the paramount object of which is the carriage of freight and not of passengers.
It might be in some cases a question of fact for the jury whether a given train is one intended for both passengers and freight within the meaning of this statute. But where the evidence shows without conflict, as it does in this case, that the train in question was not a “mixed or accommodation train,” but a regular local freight train carrying passengers as a mere incident, there is no question for the jury.
Affirmed.