I. Tbe petition is in tbe ordinary-form of a declaration for a personal injury. We' do not think it is necessary to set out tbe pleadings. Tbe issues will be understood by the evidence which we will refer to, and by tbe discussion of tbe facts and questions of law involved in tbe case. Tbe following is tbe *297testimony in chief given by the plaintiff in the trial: “Reside at Luverne, Kossuth county, Iowa, and have lived there for the last ten years. Am a butcher and dealer in live stock. Was at Humboldt about a year ago, on the twenty-eighth or twenty-ninth of this month. This road runs from Luverne to Humboldt. Was subpoenaed as a witness with ten or twelve others. About half past- eight, or ¡such a matter, went to the depot at Humboldt, to take what is called the ten o’clock freight for Luverne. It was an awful dark night. Went to the ticket office to buy a ticket. Had no change less than a ten dollar bill. Crowded up to the ticket office. The agent was there. He had some talk about a rebate ticket What it was I didn’t know. Seemed to be about a ten-cent rebate ticket. Agent kept that up quite a while. There was several people asking for tickets. Laid the ten dollar bill on the board there, and told him I would like a ticket for Luverne. Left the bill laying there for a few minutes. Then he said he had no time to make change; ‘You pay on the train.’ Then I went out of doors. When I got out doors there was quite a crowd on the platform. A good many stood on the platform of the caboose. Had been there the second day. We didn’t get through the first day of court, and we had to stay two days. The conductor had hollered, ‘All aboard,’ and I thought I would climb up on the ladder of the eaboose, but'I believe it was the third car I climbed on. When I got up. there, th.e train was moving. After we had gone fifty or sixty rods, the brakeman came along with a lantern, and said, ‘You get off of there.’ Told him if he would let me ride to Luverne I would get a ticket. Couldn’t get a ticket there, and the platform of the caboose was crowded. ‘Have you got any stuff?’ he asked. I said: ‘Yes, I got some stuff, but I couldn’t get any ticket. I only got twenty cents in change.’ *298He went off in the direction of the caboose, and then comes toward me, and said: ‘You son of a bitch, you get off here. You have been .stealing a ride every night.’ I told him it wasn’t so; He said I had to get off. I told him I couldn’t get off. I wasn’t used to climbing off the cars. He said, ‘You get off in a hurry, pretty quick.’ I said, ‘Slack up a little so I .could get off.’ He said they was going slow, and kicked me. I dodged around. He took the lantern, and knocked my hand off the ladder. I offered him a quarter, and begged him to let me ride to Luverne; He said I was stealing a ride every night, so he kept on, and kicked me right under the jarw here, and once on the head. I tried to dodge as much as possible, and begged to slack up the train a little, and let me off. He went back, and got another lantern. His lantern went out when he knocked my hat off. He came back, and found me again. I begged him to slack up a little, and let me off. I said, ‘If you let me come up, when I get to Luverne I will get a ticket.’ Didn’t have anything but twenty-five cents, so he kept kicking at me, and tried to step on my fingers. Did step on them several times. Took the lantern and made a motion to strike. Just as he did that, the train commenced to run slow. He said that was as slow as they would go. I got down on the lower step, and told him I could not get off; he had to slack up a little more. He made a motion, and the train kind of run slower. Finally got down to the ground; partially fell; kept on my feet; fell along with the train. Then I caught the hind end .of the caboose; climbed on that. Just about when I got on the caboose, and talked to the conductor about the brakeman, the brakeman came in a little afterward. T was in there. Told the conductor how the brakeman had treated me. I said I had money, but I didn’t have the change, and couldn’t get a ticket. He said the *299brakeman bad no business to take any money. Ilis business was to kick tramps off if they rode on cars. Then I got a ticket from the conductor. The brakeman stepped on my fingers, and kicked me under the jay/, and once on the side of the’.head. The train, at the time, was running pretty fast; too fast to get off. I tried to get off. I begged him to let me stand on to Luyeme, so I could get a ticket or pay. I stepped one foot on the ground to see how fast train was running. The brakeman stepped on my fingers. When I went to the ticket office to get a ticket there was quite a crowd there anxious to get tickets. Couldn’t get tickets because the agent had some kind of rebate ticket, I believe. He wanted to find out the man who beat him with that rebate ticket. Heard call out ‘All aboard!’ twice before I went in to get ticket. When I finally got off the train, train was running faster than I liked to get off. When I finally got off, didn’t quite throw me down; stayed on my feet When the caboose came along, caught on; got on step of caboose.” The cross-examination of the plaintiff did not materially vary the examination in chief. There are conflicting abstracts, but a full examination of the record shows that the plaintiff’s examination in chief as above set out presented questions of fact proper for the consideration of the jury. His testimony as to what occurred in the ticket office, relating to his effort to. procure a ticket, and the direction of the ticket agent to pay the passage money on the train, is fully corroborated by more than one witness, and the crowded condition of the platform of the caboose is corroborated to some extent. When the plaintiff entered the ticket office and laid his money on the counter, and was told by the agent to pay on the train, his relation to the defendant was that .of a passenger. Allender v. Railway Co., 37 *300Iowa, 264. Did he forfeit that right, under the circumstances, by climbing up on the ladder of a freight car? We think that was a question for the jury. And, even if the' jury should find that the relation of passenger had ceased, that finding would not have been conclusive of the case. In Marion v. Railway Co., 64 Iowa, 574, it was held that a railroad company was liable for the tore of a brakeman committed in removing a trespasser from a train, whether the wrongful act be merely one of negligence or a willful and criminal wrong. Some question is made whether there is any evidence that the brakeman was authorized to eject passengers from the train. The evidence of such authority was sufficient to require that question to be submitted to the jury. Deference to the testimony above set out shows that what occurred from the time the brakeman made the assault up to the time the plaintiff paid his fare' to the conductor was all one transaction, and when the conductor said that the business of the brakeman “was to kick tramps off if they rode on the cars,” such declaration was part of the res gestae, and proper to be considered by the jury.
II. It appears from appellant’s abstract that the railroad was operated by a receiver, and that application was made to the court for leave to commence the action, and that the application was .sustained. Appellee presented a motion to- strike from the abstract all that part thereof relating to the application for permission to bring the suit, because it is no part of the record in this appeal. It is immaterial whether the motion be sustained or overruled. No mention is made of the application in the petition, and no issue is- made by the answer involving the right of the plaintiff to commence and maintain the action,- and that right does not appear to have been questioned on the trial. The .judgment of the district court is reversed.