on contract, as where a traveler, by stage coach, is injured through the negligence of the driver, or where the owner of a public conveyance undertakes to carry persons or property, and injury results through the negligence of his agents. Here an action will lie against the owner founded on contract. Then there are numerous other cases where an action will lie against the principal for injury, caused by the negligence of his servant, wholly irrespective of any contract; as where one is lawfully on the highway, and a servant carelessly drives a vehicle against him, and injures him. And, generally, the master is liable for the negligence of his servant so long as the servant acts within the scope of his employment; and this, irrespective of any contract, express or implied. The maxim respondeat superior applies to the class of cases like the one under consideration. It makes the acts of the agent the acts of the principal, and upon this depends the safety of third persons in their dealings with agents. It is founded on public policy and convenience. To determine the liability of the principal for the negligent act of his agent, it is necessary to inquire, not as to whether the agent was authorized to do the act from which the injury resulted, or whether the act was done in violation of the principal's instructions or regulations, but as to whether the act was done by the agent, within the scope of his employment. Story, in his work on Agency, in section 452, says: "It is a general doctrine of law that, although the principal is not ordinarily liable (for he sometimes is) in a criminal suit for the acts or misdeeds of his agent, unless, indeed, he has authorized or co-operated in those acts or misdeeds, yet he is held liable to third persons in a civil suit for the frauds, deceits, concealments, misrepresentations, torts, negligences, and other malfeasances or misfeasances, and omissions of duty of his agent in the course of his employment, although the principal did not authorize or justify or par ticipate in, or indeed know of, such misconduct, or even if he forbade the acts or disapproved of them." The learned author, in the same section, states the reason upon which the law is founded as follows: "In all cases the rule applies, respondeat superior, and it is founded upon public policy and convenience; for in no other way could there be any safety to third persons in their dealings, either directly with the principal, or indirectly with him, through the instrumentality of agents. In every such case the principal holds out his agent as competent and fit to be trusted; and thereby, in effect, he warrants his fidelity and good conduct in all matters within the scope of his agency." The same doctrine is laid down by Mechem in his work on Agency (section 734). The conductor of the train in question was the agent of the defendant. If the plaintiff was wrongfully on the train, it was his duty to so inform him, and remove him therefrom, which removal, so far as the evidence shows, would have avoided the injury. His neglect in doing this is the neglect of his principal. In this view of the case, the plaintiff was lawfully on the train, and the court did not err in its application of the law, as presented in the above instruction. Where a company has adopted the system of carrying passengers on part of its freight trains, and a person, in good faith, goes on one which is not allowed to carry passengers, not knowing it to be such a train, and is allowed to remain there by the agent of the company, he will be entitled to all the rights and remedies of a person lawfully on such a train which does carry passengers. It is the duty of the company to carry him safely. Every person riding in a railroad car is presumed to be there lawfully, and the burden is upon the carrier to show affirmatively that he was a trespasser. Railroad Co. v. Derby, 14 How. 468; Railroad Co. v. Books, 57 Pa. St. 339; Whitehead v. Railway Co., 99 Mo. 263, 11 S. W. Rep. 751; Lucas v. Railway Co., 33 Wis. 41; Railroad Co. v. Muhling, 30 Ill. 9; Bretherton v. Wood, 3 Brod. & B. 54. Under the evidence, as disclosed by the record in this case, the third instruction, on the question of gross negligence, was properly given to the jury. The evidence shows that, after the plaintiff's position was known to the defendant, it ran its cars against the caboose in such a violent manner as to throw him to the floor, and, when found, he was unconscious and severely injured. Under such circumstances, the jury had a right to pass on the question of gross negligence, for, even if the plaintiff was a trespasser, the defendant had no right to carelessly and recklessly injure him. In any event, it was Railroad Co. v. Horst, 93 U. road Co., 17 Fed. Rep. 671; Mo. 208, 4 S. W. Rep. 739. liable for gross negligence. S. 291; Waterbury v. RailMcGee v. Railway Co., 92 Counsel for appellant further insist that the plaintiff was guilty of contributory negligence in getting on the train. and into the caboose in question. The contributory negligence complained of is that the plaintiff went on one of defendant's trains which was not allowed to carry passengers. If this is negligence per se, then it may be said of every person who is injured on a train that he is guilty of negligence, for had he not gone on the train he would not have been injured. The fact of the plaintiff going into the caboose was not such an act as would make him guilty of negligence unless he was there after being admonished of danger, or in disregard of his perilous position, knowing it to be such; but no such monition or disregard appears from the evidence. On the contrary, the reason able inference to be drawn therefrom is that he was in the caboose with the consent of the conductor and other servants of the defendant. This was a question of fact to be determined by the jury. But even if he were guilty of negligence, as claimed, this would avail the defendant nothing if, by the use of ordinary care, after his position had been discovered, the injury could have been avoided. To hold otherwise would be to permit the party who is guilty of the first negligence to be willfully and wantonly injured by the other. "It is now perfectly well settled that the plaintiff may recover damages for an injury caused by the defendant's negligence, notwithstanding the plaintiff's own negligence exposed him to the risk of injury, if such injury was proximately caused by the defendant's omission, after becoming aware of the plaintiff's danger, to use ordinary care for the purpose of avoiding injury to him. We know of no court of last resort in which this rule is any longer disputed, although the same rule, in substance, but inaccurately stated, has been made the subject of strenuous controversy." 1 Shear. & R. Neg. § 99. In Northern Cent. Ry. Co. v. State, 29 Md. 420, the court said: "Though the deceased may have incautiously gotten upon the track of defendant's road, yet if he could not, at the time of the collision, by the exercise of ordinary care, have avoided the consequences of the defendant's negligence, assuming that there was such, the right to recover exists. If, however, by ordinary care, he might have avoided the consequences of such negligence on the part of the defendant he would be the author of his own misfortune, and therefore no action would lie. The obligation is mutual to use care to avoid the consequences of each other's negligence, the whole matter being for the determination of the jury, as to whose negligence and want of care constituted the proximate and direct cause of the injury." Wagner v. Railway Co., 97 Mo. 512, 10 S. W. Rep. 486; Davies v. Mann, 10 Mees. & W. 545; Railroad Co. v. Still, 19 Ill. 499; Dunn v. Railway Co., 58 Me. 187; Coasting Co. v. Tolson, 139 U. S. 551, 11 Sup. Ct. Rep. 653; Creed v. Railroad Co., 86 Pa. St. 139. The appellant also assigned as error the excluding from the evidence of the statement, "I supposed he was a carrepairer." This was made by a brakeman in giving testimony as to seeing the plaintiff on the caboose before the accident, and in assigning his reasons for saying nothing to him. The only purpose this statement could serve would be to excuse the brakeman's own neglect, which could be of no advantage to the defendant. It was therefore immaterial and inadmissible. There are numerous other errors assigned, but we think they are insufficient to disturb the verdict. The judgment is affirmed. MINER, J., concurred. 9 350 e28 288 WILLIAM GARLAND, RESPONDENT AND APPELLANT, STATUTORY CONSTRUCTION.-MECHANIC'S LIEN.-REMEDY.-Where a right is in process of becoming complete and a remedy exists by statute to enforce that right if complete, but before the right becomes complete, another remedy is given by statute, the right must be enforced according to the later statute. ID.-ID.-STATEMENT.-Where a party begins to furnish labor and materials upon certain real estate, under a statute which gave ninety days after the lien was filed to bring suit upon it, but before that work was completed, another statute was passed which gave the lien-holder one year after filing statement in |