Excerpt from American and English Railroad Cases, 1901, Vol. 22: A Collection of All Cases Affecting Railroads of Every Kind, Decided by the Courts of Last Resort in the United States

While a railroad company may agree to carry passengers upon its freight trains. And when it does so agree. And accepts a passenger on such train. It is bound to the same degree of care for the safety of such passenger as when upon a train designed for passengers, modified only by the difiering man ner consistent with the usual and practical Operation of such train, yet in the absence of an established custom. Or some sort of notice that amounts to an invitation. When a person gets aboard a train composed of cars obviously designed for and loaded with stone and other goods, in the absence of the conductor and other employees of the company. He will be presumed to be a trespasser. And the burden rests upon him to prove that he rightfully took passage. Under the evidence produced. The train taken by the deceased was an irregular freight train. Running when and as often as sufficient loaded cars accumulated at the quarries. Its coming and going was'a matter of chance; its purpose. To haul empties into. And loads out of. The quarries. There is no evidence that it was the custom or that this train ever before had a passen ger coach attached to. Or in any way connected with it in its passage between Bedford and the quarries. There was no evidence that appellees, by any rule. Regulation. Or custom, accepted passengers on this train; no evidence that the deceased presented himself as a passenger. Or that he was in any way invited or recognized as such by the conductor. 'it is shown that he rode with the conductor three-fourths of a mile. To the siding, where the coach was left. Without anything being said as to destination or fare; that the conductor at no time requested fare. And none was paid or profiered; that when the coach was placed on the siding, and the decedent was directed to get on the car in the rear of the engine. The conductor went his way to the rear of the train. And gave decedent no further attention. Manifestly regarding him and his companion as riding upon the train at sufferance, and not as passengers. Going aboard the car loaded with stone in the rear of the engine. After leaving the coach by invita tion of the conductor. Did not of itself constitute the decedent a passenger. Under the circumstances. Smith v. Railroad Co., 124 Ind. 394. 397, 24 N. E. 753; Railroad Co. V. Barnes, 137 Ind. 306. 312, 36 N. E. 1092.

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