814 ST. LOUIS-SAN FRANCISCO RN. CO . v. BLEY. [168. ST. LOUIS-SAN FRANCISCO RAILWAY COMPANY V.,BLEY. Opinion delivered May 4, 1925. CARRIERs— pERsoNs RIDING WITHOUT PANING.—One boarding a train with the conductor's permission, to ride to the nearest station where he intended to buy a ticket, without, paying -for such ride, is not a passenger but a licensee. CARRIERS-RIGHT OF LICENSEE.-A licensee cannot recover for injuries caused by mere acts of negligence, but must shoW wilfulness or wantonness in the operation of the train. • • • Appeal from Mississippi Circuit . Court, .Chickasawba. District ; W. W. Bandy, Judge ; .reversed. W. F. Evants and W. J. Orr, for .APP011ant. • G. W. Barhant,.,Harri son (0, Smith and Sam . Costen). for. appellee. • .. . •* The. appellant railroad coMPany operates' a local passenger train, consisting -Of 'thee ° cats; frond' Kennett;' MiSsouri, to -Leachville, Arkansas, at which last-named place . the train -turns around to . Make the return 'trip, So' that the engine May remain in front 'Of the train. There is no:turntable 'at Leachville; so that' tlie train turns around by Means of a 'wye, the tWo : Side§ of Which are connected by the' main-line traek of :the L. C. & E. Railroad' Company, and thiS track; with the two sides Of the wYe, form practically. a eliuilateral. triangle, the ' sides of Which` are abOUt . 400 yards long.' When the train' arrives froin Kennett it' runs info the 'ea'st'. leg 'of the wye, after which it runs' beyond a* switeh admits the tiAin' to 'the main line of the' &. E. R.' over which it' runs until it passes anOther switch; which' admits -it to the *est leg Of the 'Wye,' and it then runs over the west leg of the wye to a switek which admits it to the'main line of appellant's: railroad, and as it runs upon the main line the train ° Would be headed north, thus havin'g been turne'd completely around. It then baCks into the statioh at Leach-Ville over the mainline', where the passengers are discharged and passengers for the return trip received.
ARK.] Si'. EOUIS-SAN' FRANCISCO RI"; CO. v. nLE-i'. .815 On the 8th day of February; 1922, One Of appellant's trains arrived at LeachVille from. Kennett and, in the' Manner indicated, turned around to return to Kennett. Appellee, who is engaged in the tie and timber business, was :standing at the south end of the 'west leg of the wye as' the train ran over the west leg and came to a stop, as it was required to do :before entering.upen the tracks of the & E. Railroad; •Appellee saw the conduetor of the train standing on the platform of •one of the cars; and inquired how much time he would have in Senath, Missouri, a station on .appellant's railread intermediate between,Leachville and Kennett; between the time of the arrival•of that train in Senath and the departure of. ithe next train from Senath• to Leachvaley and, this question being answ.ered by the 'conductor, he *stated to the . conductor that he .would go• to Senath, and, with the con-duetor's . permission, he boarded t.he train for the purpose of r•ding around•the wye to the station, where he intended to: purchase a ticket and become a passenger tolSenath: He rode o y Or the tracks of the J.., L. C. & E, .Railroad, and. was ° riding up the west leg of the,wye, whenihis• foot caught' -between two of the cars and .was severely injured: ' • • • • Appellee entered one of the coaches, 'but -rettirned to the platforin,• where he was' standing at 'the time . of his injury..' In making this trip around, and in backing into . the station at- Leacliville after •doing sd, the train waS required to .st6p. and start four times, 'and it Was alleged : that the aiegligence causing appellee's , injtiry was that of the Starting the *train 'with undue violence anii without Warning. , It is- insisted by appellant that ' apPellee is no.t entitled, under the undisputed . 'evidence, tO reCoVer either of these grounds; and it is also insisted that apPellee was not •a passenger, an'd that therefore tho railroad company owed him no duty as such. • • The cause'was submitted to the jury upon thetheory that appellee was a passenger and that the railroad com-
816 Sr. LOUIS-SAN FRANCISCO RN. CO. v. BLEY. [168 pany owed him the duty to exercise the highest degree of care, and it is conceded that the right to recover is dependent upon the existence of the relation of carrier and passenger. As has been said, appellee was alone at the time of his injury, and no member of the train crew knew where he was at that time, so that there can be no contention— and there is none—that appellee was injured through any wanton or wilful act on the part of any member of the train crew. In our opinion appellee was not a passenger at the time of the injury. He was not a trespasser, but, at most he was a mere licensee,and the duty of the railroad company to him is to be measured accordingly. In the case of Cruse v:St. L. I. M. ce S. R. Co., 97 Ark. 137, it was said: "We deem it to be equally sound in justice to say that, when a person enters a train without any intention to pay fare, but under a collusive agreement with the conductor to ride free in violation of the rules of the company, and does not pay any faro, he does not legally become a passenger, and the railway company is not responsible for his safety as a passenger. Quoting from the language of Judge RIDDICE in the Reed case, supra, if, under those circumstances, he 'is carried safely to his destination, he gains that much at the expense of the company. On the other . hand, if an accident happens, and he is injured, there is no reason' or justice in requiring the company to pay for his injuries, unless they have been wantonly or wilfully inflicted.' The authorities which sustain the proposition are numerous, and among them are found the following, which include cases where persons ride under collusive agreements with the conductor not to pay fare, or to pay less than full fare, and also where persons ride on a pass or ticket procured from the company by fraud." (Citing numerous cases and texts). The act of appellee in boarding the train at the time and place he did was not an act of bad faith, and there
ARK.] ST. LOUIS-SAN FRANCISCO BY. 'CO. v. BLEY. 817 was .no intention on his part to defraud the company by not paying fare. But he entered the train for his. own convenience and with the permission of the conductor, and his own testimony shows that he was thoroughly familiar with the surroundings and the customary mov , e-ments of the train. The train had not discharged the passengers whose destination was Leachville. This was not done until the circuit of the wye had been completed and the train had backed down appellant's main line to the station. Appellee knew this fact, and he knew the location of the station and its purpose, and that passengers were received and discharged at the station, and at no other place. This station was south of the J., L. C. & E. Railroad tracks. The. main line track of appellant bisected the wye, and the station was, of course, on this track. Appellee could easily have walked from the place where he boarded the train to the station, but it was to save this walk that he boarded the train. He knew that no fare would be exacted for this ride to the station, and that the train would stop at the station; and he testified that it was his intention, after the train had arrived and had stopped at the station, to debark from the 'train and'.buy a ticket to Senath. The journey upon which he proposed to embark and for which he intended tO pay fare would not have begun until after he had reached the station and had purchased a ticket. Appellee intended to become a passenger, but lad not done so. The railroad' company had provided a station for passengers to embark and debark, yet appellee entered the train at a point where it was not centem-plated that passengers would be received, and for his own convenience, and to save himself a walk to the station, he rode the train around the wye without expectation' of being charged or of paying fare. It was on this trip, and before he had reached the station, that he received his injury. There was some testimony that, in starting and in stopping the train as the various switches were passed,
818 [168 the stops Were made suddenly and the starts Were made violently, and this teStimony may have been sufficient to support a finding of negligence in the operation of the train. But there was no -testimony whateVer. that there was any element of Wilfulness or Wantonness in the operation of the train; and, if Appellee was a mere licensee and not 'a passenger,'he is in no . position to complain Of the mere acts' of negligthice—if -Mich there' were—=in switching the train around the wye. The judgment of : the' court below must therefore be reversed, and, a's the ease 'appears' to have been fully developed, it will be distnissed.
You are being directed to the most recent version of the statute which may not be the version considered at the time of the judgment.