delivered the opinion of the court.

This case is a companion to that of Yazoo, etc., R. Co. v. Farr, ante, 557, 48 South. 520. This appellee was fireman on the locomative of which Farr was engineer. Certain questions-common to both cases are briefly discussed in the opinion in that case. There is, however, one question peculiar to this case-which merits some attention. The appellee is a minor, and, of course, was not of age when he applied for and obtained employment with the railroad company. It appears from the proof that at the time of his making application for employment he made affidavit that he was twenty-one years of age. It is, therefore, ingeniously and forcibly argued that the youth .would not have been employed but for this misrepresentation asió age; that as a consequence of this fact the fireman never became entitled to the protection which the law throws around an employee; but that he was a mere trespasser, to whom the company owed no duty, except not to do him a willful injury. This view does not seem to have been presented to the court below,, and the testimony adduced on this point was manifestly directed to the view that by proving these misrepresentations the-credibility of the plaintiff was thereby affected.

Assuming, however, that the appellant is entitled to present the question to this court, we are bound to say that this theory finds some support in the Virginia case of Norfolk & W. Ry. Co. v. Bondurant, 107 Va. 515, 59 S. E. 1091, 15 L. R A. (N. S.), 443, 122 Am. St. Rep. 867. That case does hold, following an alleged analogy to the familiar passenger cases, that an employe who obtains employment by a misrepresentation as-to his age is nothing more than a trespasser. As we shall pres*565■ently point out, we are not called upon to announce positively •our accord with, or dissent from, the authority oí that case. Suffice it to say that, while it appears to be fairly well established that a passenger who secures transportation at a reduced rate upon a misrepresentation as to a material condition of the contract is entitled to no higher duty from the company than is owing to a trespasser, yet an employe, in our view, falls within quite a distinct category. A passenger, by his fraud, secures an advantage to himself without any corresponding or compensating benefit to the transportation company. The company creates a special and favored class for reasons of its own, and extends the privilege of reduced rates only to individuals of that class. The dishonest passenger who fraudulently secures admission to this class is securing from the company a concession or benefit to which he is clearly not entitled. He is, properly speaking, never a passenger at all, since he has never paid the price necessary to entitle him to the rights of a passenger. But an employe stands in a different attitude. He is a laborer for the company. He is paid for his service at exactly what the service is worth, and in this regard it can make no difference to the company that the employe is a minor and has misrepresented his age. It is not pretended, at least in this case, that the plaintiff was not a competent and skilled employe, or that his minority in any 'way contributed to the accidént. These considerations and others that will readily suggest themselves move us to say that, were we driven to decide the precise question we would follow the Virginia case, if at all, with great reluctance.

But there is another view which we think sufficient. We have stated that the point under consideration was not distinctly made in the court below. This may account for the fact that there was a total failure on the part of the appellant to prove the existence of any rule of the company prohibiting the employment of minors. • True, such a rule may be inferred from the fact that young Oobb stated that he misrepresented his *566age for the reasctai that ho woulil otherwise be denied employment. But it is true that the- existence, scope, and terms of the rulé are not shown. Further, and of more consequence, it is the Rhdenied' testimony of the plaintiff that it is the common practice of the company to employ minors, and that no attention was paid to the rule, if such a one existed. In this state of the record it is clear that the rule was not seriously regarded by the company, and may therefore be held to have been waived. Upon this view, we think a recovery must be upheld.

We think, however, the verdict is* grossly excessive. The young man, it is true, is no doubt seriously injured. But we-think the injury is not such as will cause permanent disability. We believe that $25,000 is* entirely too much. After the most-repeated and painstaking examination of the record, we are driven to the conclusion that one-half Of that amount will amply compensate the plaintiff for his injuries.

If the plaintiff will remit $12,500, the judgment will be affirmed; otherwise, it will be reversed and remanded.