sonal injuries inflicted on his child by one of the defendant's trains, through the alleged carelessness and negligence of the company's employees.

Defendant appeals from a judgment of three thousand dollars, based on the verdict of a jury.

The evidence is very conflicting on the salient features of the case, but from our reading of the record we find the following pertinent facts from the preponderance of the testimony:

The accident occurred at the company's depot, which is situated on and occupies the neutral ground or space included between two streets or thoroughfares known as North and South Poydras streets, in this city, on a train of passengercars which had just arrived, had discharged its passengers and their baggage, and was being switched out of the main track, in order to be set at rest on a side-track for the night.

While plaintiff's daughter, between eight and nine years of age, was playing in and around the depot, with four other girls a little more advanced in years, one of whom was her sister of about thirteen years of age, the girls took a child's notion of riding on that train, while it was under the operation of being switched off, at about seven o'clock in the evening in the month of November, 1886.

One of the girls asked and obtained permission so to do, of the baggage-master of the train, who was standing near by, preparatory to his leaving for home.

Four of the girls entered one of the passenger-coaches and took seats at the end towards the baggage-car, and the fifth child caught on, and remained outside on the steps of the coach. As the train was in the act of being moved out of the main track, at a pretty rapid rate, the girls became alarmed at the belief and fear that the train was running out of the city, and going, as several of them say, "out to Baton Rouge," whereupon they ran out of the coach and precipitately jumped out of the car. It was in that flight that plaintiff's youngest daughter fell, and that her foot was seriously injured by being run over by one of the wheels of the coach.

Under that condition of things, the defendant makes the point that the baggage-master had no authority, within the scope of his employment, to grant the request of the children for permission to ride on the train, so as to render the company liable for injuries resulting from such permission. The record shows that the train was not under the charge or control of that employee, but that it was under the responsibility

of another and entirely different person, who had no knowledge of the presence of the girls on that train. The record is conclusive on that point, and the authorities are equally clear on the law. The baggage-master has no duty or authority with the train, whether running or at the depot; and his permission to the girls to ride on that train cannot bind or affect the rights or obligations of the company: Pierce on Railroads, 277; Snyder v. Han. & St. J. R'y Co., 60 Mo. 413; Gillett v. Missouri Valley R. R. Co., 55 Id. 315; 17 Am. Rep. 653; Hanson v. Mansfield R. R. & Trans. Co., 38 La. Ann. 111; 58 Am. Rep. 162.

It is in proof that vigorous orders had been given by the management of the company to drive away children who came to play in and around their depot, and that to the knowledge. of the girls many children have thus been ordered away. It is thus made clear that the permission given by the baggagemaster was unauthorized under the scope of his employment, and in direct violation of the company's rules and regulations.

It is also in proof, beyond a doubt, and it is not disputed by plaintiff, that the train was not in use or motion, at the time of the accident, to carry passengers under its purpose as a common carrier, but that it was being pulled back and forth, merely and exclusively with the intention of removing the coaches from the track on which they had entered the depot, and of preparing them for the formation of another train for use in the company's business on the next day. Hence it clearly follows that the relations of carrier and passenger did not arise between the defendant and plaintiff's child.

Now, in one of the cases very strenuously relied on by plaintiff, the case of Railroad Co. v. Stout, 17 Wall. 657, the supreme court of the United States laid down the following pertinent rule: "That while a railway company is not bound to the same degree of care in regard to mere strangers who are unlawfully upon its premises that it owes to passengers conveyed by it, it is not exempt from responsibility to such strangers, arising from its negligence or from its tortious acts."

The rule is not only supported by authority, but it finds its sanction in principles of reason, common sense, and natural justice. It is in fact a universal rule on the subject of the responsibility of common carriers.

But under the circumstances of this case, we feel warranted to extend the scope of the rule still further, and to hold the defendant company to the same degree of care towards the

children who were in that coach that it would owe to passengers being conveyed by it on a journey, after payment of their fare.

Our reading of the record has entirely failed to disclose any act of negligence or dereliction of any duty on the part of the company which it owed to those girls, even if they had been regular passengers on a journey over its road. An attempt has been made to show that the panic among the girls and their precipitate flight from the coach were caused by the act of one of the company's employees, who suddenly and without warning blew out the lights in the car, and his act is qualified as reckless and mischievous.

But that contention finds no support in the record. In their testimony, two of the girls state that they did not notice whether there were any lights in the coach or not; and not one of them is certain of having seen any person or persons put out the lights.

We are entirely satisfied from the evidence that the panic among the girls was caused by the fear that they might have made a mistake, and had entered a train which was going to Baton Rouge. Hence, impelled by that fear, they attempted to jump out while the train was in motion. Now, supposing that any passenger on a regular train should labor under a similar mistake, in believing, for instance, that the train was passing by the station to which he was destined, and fearing that he might be carried beyond the same, should jump out as the train was pulling out of the station, and be injured by falling, could the company be held liable for injuries thus received? Evidently not.

In that case, as in this, there would be no ground to conclude that the company had been guilty of any negligence towards the passenger on its train. Where is the duty which the defendant corporation owed to plaintiff's child, and which it did not discharge or perform?

By remaining on the coach until it had been switched off on the side-track, she would have been perfectly safe; and could have stepped out, as she and her companions had doubtless intended to, and as they knew that they could do without the slightest danger.

Who is responsible for the ungrounded fear of the girls that the train was being run out of the city, or perhaps to Baton Rouge, and which is beyond a doubt the proximate cause of the accident? They were alone in a coach, where they had

entered voluntarily, with the childish intention of taking a ride while the train was being switched off. They say themselves that after they had taken their seats in the coach, the baggage-master moved from the platform in front of them, and entered the baggage-car, where his duty called him.

There is no pretense that a single word was spoken to them after they had taken their seats in the coach by any officer, servant, or other employee of the company, or that they were ordered off the train by any one. In running out and jumping off they were impelled by motives with which the company had not the remotest connection or agency.

And in that feature the circumstances of the case are much more favorable to the company than in any of the reported cases on which her counsel rely in their brief: Cauley v. Pittsburg etc. R'y Co., 95 Pa. St. 395; 40 Am. Rep. 664; 98 Pa. St. 498; Duff v. Allegheny etc. R. R. Co., 91 Id. 458; 36 Am. Rep. 675.

Under our view of the case, and from our solution of the pertinent facts flowing from the weight of evidence, we hold that the pivotal question does not hinge on the contributory negligence of the passenger, but exclusively on the entire absence of negligence of the company: Flowers v. Pennsylvania R. R. Co., 69 Pa. St. 210; 8 Am. Rep. 251.

Our opinion is, that the verdict of the jury is manifestly erroneous, and that in justice it must be set aside.

It is therefore ordered, adjudged, and decreed that the verdict of the jury be set aside, and the judgment of the district. court annulled, avoided, and reversed, and it is further ordered that plaintiff's demand be rejected, and his action dismissed at his costs in both courts.

LIABILITY OF RAILROAD COMPANY FOR INJURIES SUSTAINED BY ONE WHILE RIDING AS PASSENGER on freight-car or hand-car, under invitation of an employee of the company: McGee v. Missouri Pacific R. R. Co., 92 Mo. 208; 1 Am. St. Rep. 706, and note 712; International etc. R. R. Co. v. Cook, 68 Tex. 713; 2 Am. St. Rep. 521, and note 524.

CARE EXACTED OF RAILROAD COMPANY TOWARDS trespassers on its premises: See Louisville etc. R. R. Co. v. Phillips, 112 Ind. 59; 2 Am. St. Rep. 155, and note 163; Troy v. Cape Fear etc. R. R. Co., 99 N. C. 298; 6 Am. St. Rep. 521.

LAW HAS SO HIGH REGARD FOR HUMAN LIFE that it will not impute negligence to an effort to preserve it, unless made under such circumstances as to constitute rashness in the judgment of prudent persons: Eckert v. Long Island R. R. Co., 43 N. Y. 502; 3 Am. Rep. 721.

ONE WHO BUYS TICKET OVER RAILROAD, AND BY MISTAKE TAKES PASBAGE ON WRONG TRAIN, is a passenger so far as to entitle him to protection

against the negligence of the company: Cincinnati etc. R. R. Co. v. Carper, 112 Ind. 26. Passenger on a railway car who sustains injury by reason of the malicious act of one not in the employ of the company, whereby the car was derailed, is not entitled to recover for the damage inflicted: Houston etc. R. R. Co. v. Lee, 69 Tex. 556; and see Sachrowitz v. Atchison etc. R. R. Co., 37 Kan. 212.

CITY OF NEW ORLEANS v. GREAT SOUTHERN TELEPHONE AND TELEGRAPH COMPANY.

[40 LOUISIANA ANNUAL, 41.]

IMPOSITION BY MUNICIPAL ORDINANCE OF CERTAIN ANNUAL CHARGE PER POLE, as "a consideration for the privilege," upon the poles of a telephone company already established, and paying taxes on its property and a license for carrying on its business, is neither a tax nor a license, nor an exercise of the taxing power in any respect. Nor can it be upheld as a police regulation, since it involves no consideration whatever of public morals, health, or convenience. MUNICIPAL ORDINANCE, WHEN A CONTRACT. — A municipal ordinance which grants to a company authority to construct and maintain telephone lines on the streets of a city, without any limitation as to time, and for a consideration therein named, is, when accepted and acted upon by the grantee by complying with its conditions and constructing a valuable plant, a contract with the city, which cannot thereafter be abolished or altered in its essential terms without the consent of the grantee. PROVISO IN MUNICIPAL ORDINANCE GRANTING FRANCHISE TO COMPANY,

that its acts and doings under the ordinance shall be subject to future ordinances of the city, does not convert the grant into a mere revocable permit. It merely subjects such acts and doings to municipal regulations not conflicting with the ordinance itself.

PETITION for an injunction. The opinion states the case. Walter H. Rogers and Branch K. Miller, for the appellant. Bayne, Denegre, and Bayne, for the appellee.

FENNER, J. The defendant is the assignee and successor of the New Orleans Telephonic Exchange, referred to in the following ordinance of the city of New Orleans, adopted February 18, 1879:

"An ordinance authorizing the construction and maintenance of a telephonic telegraph line through the streets of the city of New Orleans.

"Sec. 1. Be it ordained by the city council of the city of New Orleans, that the New Orleans Telephonic Exchange is hereby authorized to construct and maintain a line or lines of telegraphs through the streets of this city, the line or lines to be constructed along such streets, at such points, and in such