Plaintiff, C. H. Kruse, instituted this action in the circuit court of Faulkner County to recover damages for personal injuries received while riding on one of appellee’s freight trains which he had boarded at Malvern, Ark., en route to Texarkana. His injuries were caused by a collision with another train at Witherspoon, Ark. He alleged that he was a passenger on the train, and had paid his fare to Texarkana. The answer denied that plaintiff was a passenger, alleged that the train was one on which passengers were not allowed, and that plaintiff was a trespasser on the train, and had not paid his fare. The jury returned a verdict in favor of defendant, and plaintiff appealed.
Plaintiff was a telegraph operator, and had been sojourning in Hot Springs. He came to Malvern over another railroad, and desired to go to Texarkana on one of defendant’s trains. He testified that he was waiting in the station at Malvern when the freight train came, and asked the conductor if the train carried passengers, and was told that it did; that he inquired of the conductor what the fare was to Texarkana, and was told that it was two dollars; that he paid that sum to the conductor, who pointed out the caboose and told him to get on.
The testimony adduced by defendant tended to show that the train was a through freight, on which passengers were not allowed to travel without special permission of the trainmaster or superintendent, and that plaintiff knew this when he boarded the train; that plaintiff neither paid nor offered to pay fare, nor intended to pay any, but that, on the contrary, he was permitted by the conductor to ride free in violation of the rules of the company. Plaintiff introduced one witness whose testimony tended to show that the train on which plaintiff rode was a local freight and carried passengers, but the preponderance of the evidence was to the effect that it was a through freight and did not carry passengers.
The law is well settled in this State that when one enters *140a train such as a through freight, which he knows or has reason to believe is not intended to carry passengers, and on which the rules of the company forbid passengers to ride, he is not a passenger in a legal sense, but is a trespasser, and cannot recover damages for injuries received while on the train unless they have been wilfully or wantonly inflicted by servants of the railway company. St. Louis, I. M. & S. Ry. Co. v. Reed, 76 Ark. 106.
Chief Justice Co.ckrirr, speaking for this court in such a case, said: “Where there is a division of the freight and passenger business of a railroad, the common presumption is that a person found on a freight train is not legally a passenger; and if he claims that he is, it devolves upon him to show a state of case that will rebut the presumption.” Hobbs v. Texas & Pac. Ry. Co., 49 Ark. 357.
The same learned judge, speaking for the court in another such case, said that if a person “through his own neglect had embarked on a mere wild train which the conductor could not delay without the danger of throwing the passenger and freight travel of the road into confusion, it was his duty to refuse to stop' merely for a passenger’s accommodation. The fact that he took the appellee’s ticket could not alter the rule under such circumstances.” St. Louis, I. M. & S. Ry. Co. v. Rosenberry, 45 Ark. 256.
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 fare, 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 Riddick 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 *141cases 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. Fitsmaurice v. N. Y. etc., Rd. Co., 192 Mass. 159, 7 Am. & Eng. Ann. Cas, 586; note to Vassar v. Atl. Coast Line R. Co., 9 Am. & Eng. Ann. Cas. 535; 2 Shearman & Redf. on Neg., § 489; 2 Jaggard on Torts, § 1081; Toledo, etc., Ry. Co. v. Beggs, 85 Ill. 80; Purple v. R. Co., 114 Fed 123; Duff v. Ry. Co., 91 Pa. St. 458; Mendenhall v. Ry. Co., 66 Kan. 438; Way v. Chicago, R. I. & P. Ry. Co., 64 la. 48; Condran v. Ry. Co., 67 Fed. 522; Williams v. M. & O. Ry. Co., 19 So. 90.
We have no question presented here of the status of a person who attempts in good faith to ride on a ticket or pass on which he is in fact not entitled to ride, but is permitted to ride by the conductor. Many cases hold that under those circumstances he is deemed to be a passenger and entitled to protection as such, the test being the question of good faith. But where a person attempts in .bad faith to defraud the company by riding free or for less than full fare, even with the consent of the conductor of the train, according to sound reason and authority he is a trespasser, and the company is not responsible for injuries not wantonly or wilfully inflicted.
The instructions given by the court on this subject conform to the law as here expressed, and were therefore correct.
The court gave the following instruction over the objection of the plaintiff: “The court instructs you that the presumption is that a person found upon a freight train is not legally a passenger, and if he claims that he is it devolves upon him to show a state of case that will rebut the presumption. He must show that he entered the train with the bona ñde intention of becoming a passenger thereon; that is, that he either procured a ticket of defendant to ride upon said train, or that he intended in good faith to pay his fare.”
The first part of this instruction is erroneous in saying that “the presumption is that a person upon a freight train is not legally a passenger.” The language employed is almost identical with that of Chief Justice Cockrill in Hobbs v. Texas & Pac. Ry. Co., supra; but when that opinion was written we had no statute, such as was afterwards enacted, requir*142ing railroads to carry passengers on local freight trains. Since there is a statute compelling railroads to carry passengers on local freight trains, when a person is permitted to enter a freight train as a passenger, there is no presumption arising that he is not legally a passenger. Ark. Midland Ry. Co. v. Griffith, 63 Ark. 491.
We conclude, however, that the last sentence of the instruction rendered the error in the first harmless, for it correctly stated the law as to what the plaintiff was required to prove in order to show that he was a passenger. It devolved on him to prove that much, even if it had been a regular passenger train, where the pleadings raised the issue as to his being a passenger. And, while this burden was on him, as correctly stated in the instruction, yet there was no presumption that he was not a passenger merely because he was on a freight train. It was not a matter of presumption at all as to whether or not he was a passenger, but it was a matter of proof. However, the use of the objectionable term was a matter which should have been called to the attention of the court by a specific objection. ■
It appears from the bill of exceptions that while one of plaintiff’s counsel was making the closing argument to the jury the presiding judge, without suspending the proceedings, left the court room and went to a closet several hundred feet distant, where he remained out of the hearing of the jury for several minutes — probably five or ten minutes. During the absence of the judge, a member of the bar not interested in this trial sat upon the bench upon the invitation of the judge. The counsel continued his argument, and while so doing defendant’s counsel objected to him reading from a deposition of one of defendant’s witnesses.. Counsel then suspended his argument until the return of the judge, who, on his return, permitted counsel to read .from the deposition. It also appears from the affidavits of bystanders that when defendant’s counsel interposed the objection to the reading of the deposition there was a heated controversy between counsel, but it is not shown what was said.
It is insisted that the conduct of the trial judge in absenting himself from the court room calls for a reversal of the *143case. In Stokes v. State, 71 Ark. 112, it -was held to be error for the judge in the trial of a murder case to leave the court room without suspending the trial. No objections seem to have been interposed in that case to the departure of the judge. But there is this difference between the facts of that case and this, aside from the difference in the character of the cases: There the counsel for the State was making his argument to the jury, and commented on the failure of the defendant to testify, which constituted actual prejudice; whilst in the present case it was plaintiff’s counsel who was arguing the case, and he elected to continue the argument in the absence of the judge. Now, without meaning to weaken the force of the wholesome rule laid down in the Stokes case, we say that a party to a civil case who voluntarily continues the proceedings after the judge has absented himself from the court room can not complain merely on account of the absence of the judge. He must show that some misconduct of his adversary actually occurred during the absence of the judge which operated to his prejudice. During the absence of the trial judge there is really no legal trial in progress, and neither party is compelled to proceed; but if one of the parties does so, he can not complain unless his adversary takes advantage of the absence of the judge to commit some act in the presence of the jury which operates to his prejudice.
We do not discover any prejudicial error in the trial of this case. It was tried upon conflicting testimony, and upon instructions which fairly submitted the questions of fact to the jury, and the verdict settled the issues against the plaintiff.
The judgment is therefore affirmed.