ERIE R. CO. v. GORDON

ERIE R. CO. v. GORDON. Circuit Court of Appeals, Third Circuit. January 11, 1929. No. 3804. Hobart & Minard, of Newark, N. J. (George S. Hobart and John E. Selser, both of Newark, N. J., of counsel), for appellant. Harley, Cox & Walburg, of Newark, N. J. (John McNaughton, of Pompton Lakes, N. J., and Harry E. Walburg, of Newark, N. J., of counsel), for appellee. Before BUFFINGTON, WOOLLEY, and DAYIS, Circuit Judges. [MAJORITY — BUFFINGTON, Circuit Judge.] BUFFINGTON, Circuit Judge. The court below submitted this ease to the jury. The real question, and we think the sole question, here on review, is whether there was enough evidence that the decedent was a passenger (actual or intended) to- warrant its submission. Certainly he was either an intended passenger, a licensee, or a trespasser, and the railroad company owed Mm a duty according to Ms status in one of these three relations. There is no evidence that he was on the track, and therefore a trespasser, other than the evidence that he was found on the crossbar just above the cowcatcher after it had plowed its way upon the platform, from which the railroad company argues he was probably stealing a ride. Ñor is there evidence that he was a licensee, that is, one lawfully upon the platform, yet with no intention to become a passenger. There is, however, evidence that he intended to be a passenger, meager it is true, yet enough to submit the case to the jury. The judgment is affirmed.