notified any of the officers or agents of the railway company that he was an intending passenger, was similarly hurt while attempting to cross a track of the company in order to board a train on a siding near its station.65 The theory of these decisions is that the person injured in this situation is not entitled to extraordinary care on the part of the railway company, but only to what is termed ordinary or reasonable care.66

§ 2642. Status of Passenger as Dependent upon Payment of Fare.The right of a person to ride on the vehicle of a common carrier, so as to create as between the carrier and himself the relation of carrier and passenger, is dependent upon the payment of reasonable fare fixed by the rules of the carrier or by the operative statute law, excluding, of course, those cases where he rides by the invitation or consent of the carrier without the payment of fare. Generally speaking, the prepayment of such reasonable or statutory fare is a condition precedent to the right of a person to become a passenger. According to one view, the relation of carrier and passenger is so strictly dependent upon the making of a contract of carriage, that the carrier is not liable to persons who have not been accepted as passengers by the tender and acceptance of the regular fare; and that the intention of a person to pay his fare as a passenger and his good faith in getting upon the carrier's vehicle, without paying fare,-are immaterial, where there has been no assent or contract, express or implied, on the part of the carrier to receive and carry him. But it

of Mass. Pub. Stat., chap. 112, § 212, relating to the liability of a railroad company for negligently causing the death of a passenger: Young v. New York &c. R. Co., 171 Mass. 33; s. c. 50 N. E. Rep. 455; 41 L. R. A. 193. It has been held that a woman standing upon a crosswalk, with intent to board a street car, is not a passenger so as to render the street

car

company responsible for her safety any more than for that of any other person lawfully upon the crosswalk, where she has not yet put her foot upon the car: Mitchell v. Rochester R. Co., 4 Misc. (N. Y.) 575; s. c. 30 Abb. N. Cas. 362; 25 N. Y. Supp. 744; aff'd 67 Hun (N. Y.) 607; s. c. 28 N. Y. Supp. 1136.

Southern R. Co. v. Smith, 86 Fed. Rep. 292; s. c. 40 L. R. A. 746; 52 U. S. App. 708; 30 C. C. A. 58.

Compare post, § 2886.

Bricker v. Philadelphia &c. R. Co., 132 Pa. St. 1; s. c. 40 Am. &

Eng. Rail. Cas. 688; 47 Phila. Leg. Int. 261; 25 W. N. C. 204; 18 Atl. Rep. 983. This is a peculiar case. The route of the plaintiff's journey on the defendant's road compelled him to change cars at a junction. He was suffering from cholera morbus and in pain. While waiting for the connecting train to start he stood upon the platform talking to a friend in the mail car. As the train started he entered the mail car and his friend gave him a couple of doses of medicine, and shortly afterwards the accident occurred. The mail car was a combination car, partly for passengers, but there was no way of passing from one part to the other. There was a notice posted in the mail compartment forbidding any but mail clerks to ride there. The plaintiff had in his pocket a mileage ticket to cover his passage. The train had made several stops after the plaintiff entered

has been held that the mere failure to pay fare will not prevent a person from being entitled to the status of a passenger, where, without any attempt on his part to defraud the carrier, the conductor has failed to call upon him for the fare.es In a street railway case it was held that a person became a passenger as soon as he had his foot on the running board, in the act of mounting the car after it had stopped for him.69 The better view is that it is not strictly necessary, in order that the relation of carrier and passenger should commence, that the passenger should have paid or made a legal tender of his fare.70

§ 2643. Further of the Status of Passenger as Dependent upon the Payment of Fare."-While, on the one hand, it can not be affirmed, as a conclusion of law, that the purchase of a ticket before entering a railroad train is necessary to constitute a person a passenger, 72 on the other hand, it is clear that a person who boards such a train without a ticket and who refuses to pay his fare when it is demanded of him, without any legal justification for such refusal, is not entitled to the rights of a passenger, but is a mere trespasser.73 Again, it is obvious. from what has preceded that a mere unexcuted intention to purchase a ticket and take passage on a railway train, is not sufficient to create the relation of carrier and passenger; so that if a man walking toward a railway station with such an intention receives an injury, the railway company will not be liable to him therefor by reason of the

the mail car and before the accident. The court held that before the relation of carrier and passenger could arise the company must have accepted the plaintiff as a passenger, and that as the plaintiff had not placed himself in the position of a passenger, but had entered a car which he knew was not for the transportation of passengers, without the knowledge of the employés of the company, and which was a place where they would not find or look for him, he had not become a passenger: Bricker v. Philadelphia &c. R. Co., supra.

68 Florida &c. R. Co. v. Hirst, 30 Fla. 1; s. c. 16 L. R. A. 631; 12 Rail. & Corp. L. J. 218; 11 South. Rep. 506; 52 Am. & Eng. Rail. Cas. 409; Chicago &c. R. Co. v. Lee, 92 Fed. Rep. 318; s. c. 34 C. C. A. 365; 14 Am. & Eng. Rail. Cas. (N. S.) 264.

69 Gordon v. West End St. R. Co., 175 Mass. 181; s. c. 55 N. E. Rep.

990 (person injured while boarding a street car).

70 Tarbell v. Central &c. R. Co., 34 Cal. 616; Day v. Owen, 5 Mich. 520; Nashville &c. R. Co. v. Messino, 1 Sneed (Tenn.) 220; Gardner v. Waycross &c. R. Co., 97 Ga. 482; s. c. 25 S. E. Rep. 334; Lake Shore &c. R. Co. v. Foster, 104 Ind. 293; s. c. 2 West. Rep. 304 (liable for baggage); Tillett v. Norfolk &c. R. Co., 118 N. C. 1031; s. c. 24 S. E. Rep. 111; St. Louis &c. R. Co. v. Franklin (Tex. Civ. App.), 44 S. W. Rep. 701 (no off. rep.); Gordon v. West End St. R. Co., 175 Mass. 181; s. c. 55 N. E. Rep. 990 (person injured while boarding a street car); Phillips v. Southern R. Co., 124 N. C. 123; s. c. 45 L. R. A. 163; 32 S. E. Rep. 388.

71 This section is cited in § 2634. 72 Norfolk &c. R. Co. v. Groseclose. 88 Va. 267; s. c. 15 Va. L. J. 645; 13 S. E. Rep. 454.

73 Moore v. Columbia &c. R. Co., 38 S. C. 1; s. c. 16 S. E. Rep. 781.

74

existence of that relation. So, where a person without a ticket, but with enough money in his pocket to pay his fare, having the bona fide intention of becoming a passenger on a train, ran to catch the train. as it was leaving the station, and succeeded in getting upon the front end of the baggage car next to the engine, whereupon the fireman threw hot water upon him from a hose, so that he jumped off and broke his leg, it was held that he was not entitled to the rights of a passenger, and that it was erroneous to instruct the jury that "any person who, in good faith, boards a train carrying passengers, prepared and intending to pay his fare to the conductor, is a passenger; and it makes no difference what part of the train he boards, provided, of course, he occupies a safe place."75 The cases cited by the Texas court in support of this ruling hold, respectively, that a person boarding a railway train after it has started, does not become a passenger until he has reached a safe place on a car intended for the carrying of passengers;76 that one who presumes to ride in a mail car, not intended for the carriage of passengers, without the knowledge or consent of the trainmen, is not a passenger, so as to recover damages for injuries received in a collision ;" and that one who, by his own. solicitation or consent, is carried on a vehicle not intended to carry passengers, is presumed not to be a passenger, although the owner of the vehicle is a common carrier of passengers by other means of transportation.'

78

74 June v. Boston &c. R. Co., 153 Mass. 79; s. c. 26 N. E. Rep. 238. Where there was no evidence that the plaintiff had paid her fare or had a ticket, but only that she presented herself on the station platform and attempted to get upon the defendant's train, it was held the relation of carrier and passenger was not shown to exist: Reiten v. Lake St. Elev. R. Co., 85 Ill. App. 657.

75 Missouri &c. R. Co. v. Williams, 91 Tex. 255; s. c. 42 S. W. Rep. 855; rev'g s. c. 40 S. W. Rep. 350. Contrary to this case, and under the operation of a statute, it was earlier held in Texas that one who in good faith boards a passenger train, prepared and intending to pay his fare to the conductor, is a passenger, to whom the company owes the same measure of care as to a passenger provided with a ticket: Houston &c. R. Co. v. Washington (Tex. Civ. App.), 30 S. W. Rep. 719 (no off. rep.).

70 Merrill v. Eastern R. Co., 139 Mass. 238; s. c. 52 Am. Rep. 705.

77

"Bricker v. Philadelphia &c. R. Co., 132 Pa. St. 1; s. c. 18 Atl. Rep. 983.

78 Snyder v. Natchez &c. R. Co., 42 La. An. 302; s. c. 7 South. Rep. 592. For a similar conclusion under a statute of Arkansas, where the intending passenger was found temporarily standing upon a platform of a coach on which passengers were not allowed to ride,-see St. Louis &c. R. Co. v. Kilpatrick, 67 Ark. 47; s. c. 54 S. W. Rep. 971. That, under the operation of a statute, if a person riding on a railway train not knowing of a rule of the company which prohibits the conductor from redeeming tickets, tenders to the conductor an unused but expired ticket covering the trip, and the difference of money between the redemption value of the ticket and the regular fare, he can not be treated as a trespasser,-see Arnold v. Pennsylvania R. Co., 115 Pa. St. 135; s. c. 6 Cent. Rep. 630. That a livery stable keeper is not relieved from liability for an injury to one

80

$2644. Still Further as to the Effect of the Non-Payment of Fare. Where a parent enters a car of a railway passenger train, having in his charge a child who is non sui juris, and yet subject to the payment of fare, the law implies a contract on the part of the parent to pay the fare of the child. One who entered a railway passenger car while other persons were in the act of getting on, at a place where the company was accustomed to and had a right to receive passengers, was held to be entitled to the rights of the passenger, although he had not bought a ticket. Where the servants of a railway company, contrary to its rules, accepted a trunk as baggage, and the trunk was lost while in transit to the station of the company,—it was held that the company was liable for the loss, although the passenger had not bought his ticket.81 One who boards a train without a ticket at a station where there is no ticket office, in good faith, having with him the money to pay his fare, and intending to pay it, becomes a passenger, to whom the company owes the duty of exercising extraordinary diligence for his safety, as in case of other passengers.82 It has even been held that one who enters the waiting room of a railway station with the intention, in good faith, of procuring a ticket and taking passage on a train at the first opportunity, becomes a passenger, and entitled to care and protection as such.83 In order to estab.lish the fact that a person killed on a railroad train had paid his fare and thereby acquired the status of a passenger for hire, it is not necessary to produce direct evidence of that fact. It may be proved by circumstances; and proof of the fact that the conductor had recognized him as a passenger, had given him a check, and had carried him for many hours, was held sufficient proof that he had paid his fare. It is equally clear, on the other hand, that the failure of the passenger to procure a ticket through the wrong of the carrier, will not prevent the commencement of the relation of carrier and passenger between the carrier and himself. Thus, a person who presents himself at the window of a railway ticket office at the schedule time of the departure of a train, and in good faith asks to buy and pay for a ticket, has the rights of a passenger, although the ticket

84

carried by him as a passenger, on
the ground that the payment for
carrying her was not made by such
passenger, but by a third person.—
see Benner Livery &c. Co. v. Busson,
58 Ill. App. 17.

Braun v. Northern &c. R. Co.,
79 Minn. 404; s. c. 82 N. W. Rep. 675.
So Tillett v. Norfolk &c. R. Co., 118
N. C. 1031; s. c. 24 S. E. Rep. 111.
S1 Lake Shore &c. R. Co. v. Foster,

104 Ind. 293; s. c. 2 West. Rep. 304 (liable for baggage).

Gardner v. Waycross &c. R. Co., 97 Ga. 482; s. c. 25 S. E. Rep. 334.

83 St. Louis &c. R. Co. v. Franklin (Tex. Civ. App.). 44 S. W. Rep. 701 (no off. rep.). See. also, Phillips v. Southern R. Co., 124 N. C. 123; s. c. 45 L. R. A. 163: 32 S. E. Rep. 388.

Louisville &c. R. Co. v. Thompson, 107 Ind. 442; s. c. 5 West. Rep. 833.

agent refuses to sell him a ticket, and he is prevented from obtaining one.s 85 On the other hand, a passenger who has determined not to pay his fare after being informed that his ticket will not entitle him to ride is not a passenger in good faith, if he does not get off at the next station. Again, the relation of carrier and passenger may commence without either the purchase of a ticket or the prepayment of fare, where that condition is not exacted of the person on taking passage.87

86

§ 2645. Prepayment of Fare not Necessary to Constitute One a Passenger on a Street Car.-This is peculiarly applicable to street railway carriage, where the fares are usually collected after the passenger enters the car. It has been well held that such a company can not defend an action for personal injuries received by a passenger, on the ground that he did not pay his fare, where it appears that he was ready to pay it, but that it had not been demanded by the conductor, owing to the crowded condition of the car;ss and it is obvious that where such a practice of collecting fares prevails, the carrier will not be relieved from liability to a passenger, injured through the negligence of his servants, on the ground that the passenger did not pay his fare, where it is not shown by the carrier that he did not intend to pay it.89 So, it has been held that a child nine years of age who boards a street car and is carried several blocks, the driver, who is also the conductor, knowing the child to be on board, is to be deemed a passenger, whether the child intended to pay fare or not, so as to render the company liable for inflicting an injury upon him through negligence.20 Somewhat at variance from this, it has been held' that a person does not become a passenger of a street railway company by the mere attempt to board its car while in motion, in the absence of an acceptance of him by the company as

85 Norfolk &c. R. Co. v. Galliher, 89 Va. 639; s. c. 17 Va. L. J. 267; 16 S. E. Rep. 935.

66 Rudy v. Rio Grande &c. R. Co., 8 Utah 165; s. c. 30 Pac. Rep. 366; 12 Rail. & Corp. L. J. 124.

Thus, one who, after boarding a steamer, learns that a certain landing where he intends to stop is off the steamer's route, and that he must pay extra fare in order to stop there, and who declines to do so, but does not change his purpose to take passage, is a passenger from the time he goes on board, and, as such, can hold the steamer responsible for negligence whereby he is injured, although he does not pre

pay his fare, or purchase a ticket, it being the custom of the purser to collect fares on board: The Wasco, 53 Fed. Rep. 546.

8 Cogswell v. West Street &c. Electric R. Co., 5 Wash. 46; s. c. 52 Am. & Eng. Rail. Cas. 500; 7 Am. R. & Corp. Rep. 48; 31 Pac. Rep. 411; Gordon v. West End St. R. Co., 175 Mass. 181; s. c. 55 N. E. Rep. 990.

S Bartlett v. New York &c. R. Co., 29 N. Y. St. Rep. 357; s. c. 8 N. Y. Supp. 309; s. c. aff'd 130 N. Y. 659.

Metropolitan Street R. Co. v. Moore, 83 Ga. 453; s. c. 41 Am. & Eng. Rail. Cas. 240; 10 S. E. Rep. 730.