The plaintiff claimed that the conduct of the defendant impliedly invited him to ride upon the footboard, and that the defendant thereby assumed, as to him, the duty of a common carrier to exercise the degree of care in transporting him proportioned to the increased danger to be apprehended from his position on the footboard. The trial court held that the conduct of the defendant as proved did not support the inference of such invitation, and refused to consider the claim of law based thereon. The facts, and all the facts, from which the inference claimed must he drawn, were settled by the court and stated in the finding of facts on which the judgment is founded. The evidence as to the conduct of the defendant in this respect has been exhausted in the facts already found. The inference of the judge from those facts is subject to the rules of law governing all judicial inference from admitted facts.
I think the court clearly erred in its inference. No conclusion from the facts found is legally permissible except the one claimed, i. e., the defendant accepted the plaintiff as a passenger to ride upon the footboard. The duty of the defendant to exercise the degree of care proportioned to the manifest danger of carrying passengers in that manner, *Page 144 is beyond controversy. This error of the court necessarily entered into and vitiated its finding both as to negligence and contributory negligence. It is patent from the whole finding that the conclusions actually drawn are based upon the plainly erroneous conclusion as to the relation of common carrier and passenger. Moreover, it was culpable negligence in the defendant to knowingly assent to any passenger standing on the northerly footboard while crossing the causeway under the conditions of the construction of the defendant's railroad set forth in the finding.
A new trial should be ordered.