was entitled to recover damages.33 It may be collected from other cases that a boy ten years of age, riding on a street car at the invitation of the motorman, is not a trespasser, but is entitled to recover damages for being injured through the negligence of the motorman in suddenly starting the car as he is boarding it, throwing him down;34 that the mere fact that a boy eight years of age gets upon a car and sits on the steps is not prima facie evidence that he is a trespasser, and if he is injured through the fault of the company's servants, he is entitled to recover;35 that a woman who has entered a depot and purchased a ticket intending to board a train soon to arrive, is a passenger;3 ;36 that a person under contract with a railroad company to enter its employ at a certain place, who is riding to such place on a free pass which is part of the agreement for employment, which pass has a clause on the back exempting the carrier from liability for injuries. caused through its negligence, is a passenger for hire, and the stipulation against liability is not binding on him.37

§ 2638. Point of Time at which the Relation Commences.38-It is not necessary, in order to the commencement of the relation of carrier and passenger, that the carrier should actually have commenced the execution of the contract of carriage. On the contrary, the prevailing opinion is that where the passenger has come upon the premises of the carrier with the bona fide intention of taking a passage, the relation is thereby created. When, therefore, a passenger goes into the waiting-room of a railway carrier,39 or goes upon the station platform, with the bona fide intention of becoming a passenger, a duty arises on the part of the carrier of treating him as such, although he may not have bought a ticket or paid fare; and this conclusion is

33 Arnold v. Pennsylvania R. Co., 115 Pa. St. 135; s. c. 6 Cent. Rep. 630.

41

Am. Dec. 700; Dillingham v. Wood (Tex. Civ. App.), 27 S. W. Rep. 1074 (no off. rep.). A passenger await

34 Little Rock &c. R. Co. v. Nelson, ing the arrival of his train is enti66 Ark. 494.

tled to protection as such while re

35 Jackson v. St. Paul &c. R. Co., tiring from the depot for a neces74 Minn. 48.

26 Exton v. Central R. Co., 62 N. J. L. 7.

37 Williams v. Oregon &c. R. Co., 18 Utah 210.

38 This section is cited in §§ 2659, 2702, 3190.

39 Exton v. Central R. Co., 63 N. J. L. 356; s. c. 46 Atl. Rep. 1099; aff'g s. c. 62 N. J. L. 7; 42 Atl. Rep. 486; Wells v. New York &c. R. Co., 25 App. Div. 365; s. c. 49 N. Y. Supp. 510; Grimes v. Pennsylvania Co., 36 Fed. Rep. 72; Warren v. Fitchburg R. Co., 8 Allen (Mass.) 227; s. c. 85

sary purpose, and while returning thereto: Louisville &c. R. Co. v. Treadway, 142 Ind. 475; s. c. 40 N. E. Rep. 807.

40 Gordon v. Grand Street &c. R. Co., 40 Barb. (N. Y.) 546; Illinois &c. R. Co. v. Treat, 75 Ill. App. 327; Barth v. Kansas City Elev. R. Co.. 142 Mo. 535; s. c. 44 S. W. Rep. 778; 10 Am. & Eng. Rail. Cas. 281 (at an elevated railway station); Brien v. Bennett, 8 Carr. & P. 724; Smith v. St. Paul City R. Co., 32 Minn. 1; s. e. 50 Am. Rep. 550.

"Gardner v. Waycross &c. R. Co.,

clearer where he has purchased his ticket and is waiting to take the train. So, if a passenger, having purchased his ticket, enters a car of a particular train, in obedience to an invitation of an employé of the company, or in obedience to an announcement of an employé of the company that the cars are ready to receive passengers, the relation of carrier and passenger is created, although the train in fact may not be “made up,” but the process of coupling or detaching cars is still going on; and if, under such circumstances, the passenger, while passing from one car to another in order to find a car in which there is a vacant seat, receives an injury without his own fault, he may recover damages. So, a person who has procured a ticket at a railroad station is entitled to protection as a passenger while going to the baggage room to get checks for baggage.**

43

§ 2639. Further as to when the Relation Commences.-So, the relation has been held to have been created by the act of a woman in going into a railway ticket office and informing the ticket agent of her desire to become a passenger, she in good faith placing herself under his direction, and he directing her as to the manner in which she is to get on a caboose car, on which she is to take passage. So, where a street car has stopped to take a passenger on, if he is injured while in the act of getting on, his rights on the one hand, and the measure of the liability of the company on the other hand, are those of carrier and passenger. The status and rights of a passenger were ascribed

46

97 Ga. 482; s. c. 25 S. E. Rep. 334; St. Louis &c. R. Co. v. Franklin (Tex. Civ. App.), 44 S. W. Rep. 701 (no off. rep.); Phillips v. Southern R. Co., 124 N. C. 123; s. c. 45 L. R. A. 163; 32 S. E. Rep. 388; Inness v. Boston &c. R. Co., 168 Mass. 433; s. c. 47 N. E. Rep. 193 (either at common law or within Pub. Stats. Mass., ch. 112, § 212).

42 Batton v. South &c. R. Co., 77 Ala. 591; Harris v. Stevens, 31 Vt. 79; s. c. 73 Am. Dec. 337; Wood v. Pennsylvania Co., 177 Pa. St. 306; s. c. 35 L. R. A. 199. See, also, Wabash &c. R. Co. v. Rector. 104 III. 296; Shannon v. Boston &c. R. Co., 78 Me. 52; Webster v. Fitchburg R. Co., 161 Mass. 298; and note to same in 24 L. R. A. 521; Southern R. Co. v. Smith, 52 U. S. App. 708; s. c. 86 Fed. Rep. 292; 30 C. C. A. 58; 40 L. R. A. 746; Illinois &c. R. Co. v. Treat, 179 Ill. 576; s. c. 54 N. E. Rep. 290; Exton v. Central R. Co., 62 N. J. L. 7; s. c. 42 Atl. Rep. 486;

45

s. c. aff'd 63 N. J. L. 356; 46 Atl. Rep. 1099; and note to Warner v. Baltimore &c. R. Co., 42 L. ed. 491.

43 Hannibal &c. R. Co. v. Martin, 11 Ill. App. 386.

"Exton v. Central R. Co., 62 N. J. L. 7; s. c. 5 Am. Neg. Rep. 675; 42 Atl. Rep. 486; s. c. aff'd 63 N. J. L. 356; 46 Atl. Rep. 1099.

45 Allender v. Chicago &c. R. Co., 37 Iowa 264.

McDonough v. Metropolitan R. Co., 137 Mass. 210; Smith v. St. Paul City R. Co., 32 Minn. 1. The relation was also established when one had safely entered a passenger car, with the intention of becoming a passenger, although at a stopping place not a station, and where no invitation was held out to him to take trains, but where they were permitted to be taken: Dewire v. Boston &c. Co.. 148 Mass. 343; s. c. 2 L. R. A. 166; 19 N. E. Rep. 523. And so, where one held up his finger to the driver of an omnibus,

48

to one who, while waiting at a station, was invited by the station agent to take a seat in an empty car on a side track while the station was being cleaned, and who, upon the car being suddenly moved out from the station, was injured by jumping from it under an impulse of sudden fear; to one who, having purchased a ticket, passed through a turnstile where the ticket was deposited, and was injured when about to leave the station platform and enter a car. It is no doubt a sound view that one who boards a railway train, in good faith, with the purpose of acquiring the right to ride thereon, becomes a passenger, subject to the right of the company to terminate his right of passage after he has failed to make proper and reasonable efforts to purchase a ticket as required by its rules, or, having been unable to secure a ticket, refuses to pay fare on the train.* A woman, having a transfer ticket, approaching a street car to get on, was deemed a passenger, to whom the carrier owed an extraordinary measure of care, so as to entitle her to recover damages for an injury received by being struck by a piece of trolley pole, which broke while the motorman was trying to change it to the other end of the car.50

49

§ 2640. Still Further of this Subject.51-It has even been held that a person is to be regarded as a passenger who is on his way to a railway station to take passage on one of its trains, although he has not yet purchased his ticket;52 but this seems a very doubtful conclusion, since it is difficult to see how the carrier could be charged with any legal duty toward a person who has not yet come upon his premises for the purpose of taking passage on one of his vehicles. Accordingly,

fered by a female passenger, to whom a ticket to the wrong station was sold, in reaching her destination from the station for which she received the ticket, should be stricken out, where it does not appear that she would not have experienced as great inconvenience had she gone over the other available route: Texas &c. R. Co. v. Armstrong (Tex. Civ. App.), 41 S. W. Rep. 833 (no off. rep.). The holding seems to be untenable; since it would not be a question for the judge, but for the jury, whether she would have suffered such great inconvenience if she had taken the other available

49 Cross v. Kansas City &c. R. Co., route, and the plaintiff had the right 56 Mo. App. 664.

50 Keator v. Scranton Traction Co., 191 Pa. St. 102; s. c. 43 Atl. Rep. 86; 6 Am. Neg. Rep. 187; 44 L. R. A. 546. There is a holding to the effect that evidence as to discomforts suf

to have this evidence before the jury to enable them to decide the question.

51 This section is cited in § 2659. Grimes v. Pennsylvania Co., 36 Fed. Rep. 72.

56

it has been held that one who, while approaching a station to take a train, is injured by an incoming train, is not a passenger, although he has in his possession a round-trip ticket regularly purchased.53 But clearly the consensus of legal opinion is that very slight circumstances will sustain an implication of the existence of this relation. Thus, in an action for the loss of the plaintiff's baggage, evidence of his possession of a baggage check in connection with the testimony of the baggage master of the defendant, to the effect that, when required by passengers, he put checks on their baggage and gave duplicates to them, was held sufficient evidence that the plaintiff was a passenger, and that his baggage had been checked for his passage.54 But it has been held that where a steamboat lands at one of its usual stopping places for the purpose of taking on freight and passengers, it is not a presumption of law that every person who goes on board does so as a passenger unless he notifies an officer of the boat to the contrary, so as to relieve the officers from the duty of giving such as do not come aboard as passengers proper time and facilities for getting ashore.55 On the other hand, although, as we shall hereafter see," a common carrier of passengers is bound, in the exercise of a species of police duty, to protect a passenger against the violence of its own servants or of other passengers, yet where a person was knocked down and robbed just as he was about to enter a railway train as a passenger, it was held that he could not, under a petition charging that he was assaulted and injured by the servants and employés of the company in control of its train, recover against the company, without showing that the person who assaulted him was in its employ, and that the wrongful acts were done by its servants in the course or within the scope of their employment. Here the theory of the court was that, the relation of carrier and passenger not having commenced, the carrier was not under a legal obligation to protect the plaintiff from the assaults of third persons. This seems tantamount to holding that the police duty which the law imposes upon the carrier for the protection of his passengers does not commence until they are actually upon his vehicle of transportation,-which we shall hereafter see is not the better opinion.58 One who has hailed a passing omnibus with the intent to ride thereon, and is injured by the sudden starting of the omnibus, as he is boarding the same, is entitled as a passenger to recover damages.59 A person in the act of boarding a street car which

57

60

61

has stopped in response to his signal, who is injured by the car being struck by another car of the company, is entitled to recover damages as a passenger. One who is crossing a railroad track with a ticket in his pocket, to board a train, but has not been to the depot, and has not notified the agents of the company that he is a prospective passenger, is not a person to whom the company owes the extraordinary care due to a passenger, and he can not recover for injuries from being struck by a passing train when he could have seen the train for a distance of a quarter of a mile. One who has purchased a ticket, passed through a turnstile, where the ticket is deposited, entered a platform exclusively used for passengers, and is about to enter the train, is a passenger, and the carrier must use a high degree of care to prevent injury to him while boarding the train.62 Where a woman purchases a ticket at a railway station, intending to be a passenger on the cars of the company, the relation of carrier and passenger is established; and if she is injured while using a passage way to the baggage room, for the purpose of having her baggage checked, by being struck. by two men scuffling in the passage way, the company will be liable to her in damages.63

§ 2641. Status of Passenger not Created by Mere Preparation to Become a Passenger.-The mere fact that a person is injured while in the act of approaching the premises or vehicle of the carrier with the intent of becoming a passenger, does not, as a general rule, charge the carrier with the high degree of care in his favor which the law puts upon a carrier of passengers. The reason is obvious. Before this liability can attach, the person of the passenger must have been placed in some substantial sense in the custody of the carrier, either upon his premises while waiting to take passage, or upon his vehicle after having mounted it to take passage. It was so held of a person who, having obtained a ticket, and being on the premises of the railroad company, designed for the use of passengers, and about to take a train, was struck while crossing the track of the company by an incoming train, while in the act of running across its premises from a point outside its station, to catch one of its trains which was about to start;64 and of a person who, having a mileage ticket, not having

60 Smith v. St. Paul &c. R. Co., 32 Minn. 1.

61 Southern R. Co. v. Smith, 52 U. S. App. 708; s. c. 86 Fed. Rep. 292; 30 C. C. A. 58; 40 L. R. A. 746. 62 Illinois &c. R. Co. v. Treat, 179 Ill. 576; s. c. 54 N. E. Rep. 290.

63 Exton v. Central R. Co., 62 N. J. L. 7; s. c. 42 Atl. Rep. 486.

64 Webster v. Fitchburg R. Co., 161 Mass. 298; s. c. 24 L. R. A. 521; 37 N. E. Rep. 165. But a person passing from a railroad station across a track to a platform, on a walk provided by the railroad for that purpose, intending to take a train for which he has purchased a ticket, is a passenger within the meaning