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a passenger, express or implied, evidenced by some act of its servants, such as stopping the car for him to mount in compliance with his signal. Hence if, in such a case, he is injured while attempting to mount the car while in motion, it will not be the case of an injury inflicted by a carrier upon his passenger. It has even been held, but with questionable propriety, that the relation of carrier and passenger does not exist between a street railway company and a person who has given a signal, which was seen and responded to, for a car to stop, but who is struck by the unexpected swinging of the car from its proper track onto a switch track.92 But it has been held that a boy who hangs upon the outside of a street car can not be deemed a passenger, although he has a nickel in his pocket with which he intends to pay his fare when called upon, where the crowd on the car prevents the employés from seeing him.93

§ 2646. Persons Riding Gratuitously with the Invitation or Consent of the Carrier. 94-Whether the relation of carrier and passenger subsists between the carrier and a person who is riding gratuitously upon his vehicle will depend upon the solution of the question whether the person is so riding with the invitation or consent of the carrier, or whether he is there as a mere trespasser. The importance of the inquiry lies in the rule of law that the carrier owes a different measure of duty to a gratuitous passenger from that which he owes to a mere trespasser. It lies in the rule that if he is there by the invitation or with the consent of the carrier,-as where he is riding on a free pass, the carrier owes him the same duty, and the same degree of care, in providing for his safety, that he owes to a passenger who has paid full fare;95 and that in all such cases it is immaterial whether

91 Schepers v. Union Depot R. Co., 126 Mo. 665; s. c. 29 S. W. Rep. 712; Schaefer v. St. Louis &c. R. Co., 128 Mo. 64; s. c. 30 S. W. Rep. 331.

92 Donovan v. Hartford St. R. Co., 65 Conn. 201; s. c. 32 Atl. Rep. 350.

93 Thus, a boy got on the side of the car on which passengers were not allowed to ride. He rode in a stooping position for three-fourths of a mile, when, being unable to hold on any longer, he fell off, and was run over by the car and injured. The employés did not see him, though an examination of that part of the car would have revealed him to them. He was held not to have been a passenger: Udell v. Citizens' Street R. Co., 152 Ind. 507; s. c. 1 Repr. 645; 71 Am. St. Rep.

336; 5 Am. Neg. Rep. 562; 52 N. E. Rep. 799.

This section is cited in §§ 2633, 3410, 3492.

Philadelphia &c. R. Co. v. Derby, 14 How. (U. S.) 468; s. c. Thomp. Carr. Pass. 31; Gulf &c. R. Co. v. Wilson, 79 Tex. 371; s. c. 11 L. R. A. 486; 15 S. W. Rep. 280; Louisville &c. R. Co. v. Faylor, 126 Ind. 126; s. c. 25 Ohio L. J. 55; 25 N. E. Rep. 869; Hospes v. Chicago &c. R. Co., 29 Fed. Rep. 763; International &c. R. Co. v. Cock, 68 Tex. 713; s. c. 5 S. W. Rep. 635; Pembroke v. Hannibal &c. R. Co., 32 Mo. App. 61; Gulf &c. R. Co. v. McGown, 65 Tex. 640; Todd v. Old Colony R. Co., 3 Allen (Mass.) 18; s. c. 7 Allen (Mass.) 207; Rose v. Des Moines Valley R.

the carrier receives an agreed compensation for his transportation, or is compensated therefor by the charge for the car, or for transportation of property in his charge, or receives no compensation whatever;96 whereas, as we shall soon see, the carrier owes no duty toward a trespasser beyond the duty of refraining from inflicting a wanton injury upon him.97 When, therefore, a guest of the president of a railroad company, riding by his invitation in a special car, was injured by a collision, it was held that the railway company owed him the same measure of care as it would have owed him if he had been a passenger for hire.98 So, where a person was carried free upon the defendant's vessel in consideration of the fact that he was a "steamboat-man," it being the custom to carry such persons free, the court held, in an action for personal injuries by the negligence of the defendant's agents, that the circumstance of free carriage did not deprive him of the right of redress enjoyed by other passengers." Nor, after it has once had its inception, will the relation of carrier and passenger be affected by the circumstance that the agent of the carrier, in consideration of the fact that the passenger has been injured, returns the money paid for his passage.' 100 But where a railroad had not been opened to passenger traffic, the company did not become liable for an injury caused by a derailment of a train, to one who had been invited to ride on the train by the superintendent of construction and civil engineer of the company, who had no authority to receive passengers or to invite them so to ride.101

Co., 39 Iowa 246; Jacobus v. St. Paul &c. R. Co., 20 Minn. 125; s. c. 1 Cent. L. J. 375; Louisville &c. R. Co. v. Scott (Ky.), 56 S. W. Rep. 674; Alabama &c. R. Co. v. Yarbrough, 83 Ala. 238; s. c. 3 South. Rep. 447; Albion Lumber Co. v. De Nobra, 44 U. S. App. 347; s. c. 19 C. C. A. 168; 3 Am. & Eng. Rail. Cas. (N. S.) 564; 72 Fed. Rep. 739; Ecliff v. Wabash &c. R. Co., 64 Mich. 196; s. c. 7 West. Rep. 462; Brennan v. Fair Haven &c. R. Co., 45 Conn. 284; s. c. 29 Am. Rep. 679; Little Rock Traction &c. Co. v. Nelson, 66 Ark. 494; s. c. 52 S. W. Rep. 7; Gradin v. St. Paul &c. R. Co., 30 Minn. 217; Metropolitan St. R. Co. v. Moore, 83 Ga. 453; s. c. 10 S. E. Rep. 730; Wilton v. Middlesex R. Co., 107 Mass. 108; s. c. 9 Am. Rep. 11; Muehlhausen v. St. Louis &c. R. Co., 91 Mo. 332; s. c. 2 S. W. Rep. 315; Buck v. People's St. R. &c. Co., 108 Mo. 179; s. c. 18 S. W. Rep. 1090. Contra, Kinney v. Central R. Co., 34 N. J. L. 513.

Gulf &c. R. Co. v. Wilson, 79

Tex. 371; s. c. 11 L. R. A. 486; 15 S. W. Rep. 280 (mail agent injured by derailment of car).

98

Post, §§ 3302, 3307.

Philadelphia &c. R. Co. v. Derby, 14 How. (U. S.) 468; s. c. Thomp. Carr. Pass. 31.

90 Str. New World v. King, 16 How. (U. S.) 469.

100 Packet Co. v. Clough, 20 Wall. (U. S.) 528.

101 Evansville &c. R. Co. v. Barnes, 137 Ind. 306; s. c. 36 N. E. Rep. 1092. A woman waiting in a waitingroom of a railway station to take a train, requested and received permission from the station agent to take a seat in a standing car while the waiting-room was being cleaned, he assuring her that the car would remain there. While she was sitting in the car, it started, and she, becoming alarmed, jumped out. and was injured. It was held that a verdict against the railroad company ought to stand: Shannon v. Boston &c. R. Co., 78 Me. 52.

§ 2647. Who a Passenger for Hire.-It is to be observed that it is not necessary that a person should have paid any money for his carriage, in order to constitute himself a passenger for hire, but that he will be such if the carrier receives any benefit or advantage in consideration of according him his passage.102 Thus, where a person was negotiating with a railroad company respecting the introduction · and use upon their trains of a patent car coupling, and went, at the request and expense of the company, to a point on its road to see one of its officers in relation to the matter, and a pass was furnished by the company, it was held, in an action for an injury received during the transportation, that he was a passenger for hire.103 If a person travels on a pass which contains a stipulation exempting the company from liability to him for injuries, he does not acquire a release from this stipulation by the fact of purchasing a seat in a drawing-room car, on the theory that this makes him a passenger for hire.104 The status of a passenger for hire has been denied to a person riding on a free pass, not in order to care for property which is being shipped over the railroad, but simply for pleasure and as a gratuity.105 But a man in charge of a car of poultry shipped by railroad, whose passage is one of the mutual terms of the arrangement of carriage of the poultry, is a passenger for hire.106

§ 2648. Stockdrovers. 107-So, a person who accepts a drover's pass, given to him in consideration of his shipping his cattle over the carrier's line, and, in order that he may accompany them to their destination, is a passenger for hire, and not a gratuitous passenSuch being his status, he is entitled to that high degree of

ger. 108

102 Railway Co. v. Stevens, 95 U. S. 655; Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357; Smith v. New York &c. R. Co., 24 N. Y. 222; Cleveland &c. R. Co. v. Curran, 19 Ohio St. 1.

103 Grand Trunk R. Co. v. Stevens, 95 U. S. 655.

104 Ulrich v. New York &c. R. Co., 108 N. Y. 80; rev'g on this point s. c. 13 Daly (N. Y.) 129.

105 Griswold v. New York &c. R. Co., 53 Conn. 371; s. c. 2 N. E. Rep. 315.

10 Delaware &c. R. Co. v. Ashley, 67 Fed. Rep. 209.

107 This section is cited in §§ 2633, 2963, 3006.

10 Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357; Smith v. New York &c. R. Co., 24 N. Y. 222; s. c. 29 Barb. (N. Y.) 132; Cleveland &c. R.

Co. v. Curran, 19 Ohio St. 1; Ohio &c. R. Co. v. Selby, 47 Ind. 471; Flinn v. Philadelphia &c. R. Co., 1 Houst. (Del.) 469; Graham v. Pacific R. Co., 66 Mo. 536; Indianapolis &c. R. Co. v. Beaver, 41 Ind. 493; Pennsylvania R. Co. v. Henderson, 51 Pa. St. 315; New York &c. R. Co. v. Blumenthal, 160 Ill. 40; Receivers &c. R. Co. v. Armstrong. 4 Tex. Civ. App. 146; Orcutt v. Northern &c. R. Co., 45 Minn. 368; s. c. 47 N. W. Rep. 1068; Ohio &c. R. Co. v. Nickless, 71 Ind. 271; Missouri &c. R. Co. v. Ivy, 71 Tex. 409; s. c. 1 L. R. A. 500; 9 S. W. Rep. 346; Little Rock &c. R. Co. v. Miles, 40 Ark. 298; s. c. 48 Am. Rep. 10; Pitcher v. Lake Shore &c. R. Co.. 28 N. Y. St. Rep. 647; s. c. 8 N. Y. Supp. 389; Carroll v. Missouri &c. R. Co., 88 Mo. 239; s. c. 3 West. Rep. 839; Union &c. R. Co. v. Shacklet,

care on the part of the carrier, to promote his safety, which the law puts upon common carriers of passengers for hire, as hereafter stated.109 If, therefore, under the contract of a shipper of stock⚫ with a railroad company, the shipper is bound to take charge of the caring for and feeding of the stock, and if he is injured, through the negligence of the carrier, when in the car with the stock, at a time. when prudent attention to their wants requires him to be there,—he may recover damages.110 Being a passenger for hire, a stipulation in his pass, exempting the carrier from liability for any injury sustained by him while in charge of his cattle, is void, in so far as it attempts to release the carrier from liability for his negligence,111-just as such a stipulation would be void in case of an ordinary passenger.112 112 For stronger reasons, such a stipulation by a shipper of cattle, releasing the carrier from responsibility for the consequences of his own negligence or that of his servants, resulting in an injury to a servant of the shipper, not assented to by a servant of the shipper, is void as to him, and does not prevent him from recovering damages for injury received through the negligence of the carrier or his servant.113 A shipper of cattle riding on a drover's pass is a passenger for hire, and is entitled, at the hands of the carrier, to the high measure of care which is due to a passenger, notwithstanding a provision of the contract that he shall be deemed an employé of the railroad company, and shall assume all risks incident to his employment.114 The status of such a person as a passenger is not interrupted during the time

119 Ill. 232; s. c. 8 West. Rep. 63; Illinois &c. R. Co. v. Beebe, 174 Ill. 13; s. c. 50 N. E. Rep. 1019; 11 Am. & Eng. Rail. Cas. (N. S.) 163; aff'g 69 Ill. App. 363; Chicago City &c. R. Co. v. Rood, 163 Ill. 477; Lawson v. Chicago &c. R. Co., 64 Wis. 447; s. c. 54 Am. Rep. 634; Indianapolis &c. R. Co. v. Horst, 93 U. S. 291; s. c. 23 L. ed. 898. See, however, Omaha &c. R. Co. v. Crow, 47 Neb. 84. See also, Muldoon v. Seattle City R. Co., 7 Wash. 529; and note, 22 L. R. A. 794.

109 Post, 2722, et seq.; Indianapolis &c. R. Co. v. Horst, 93 U. S. 291; New York &c. R. Co. v. Lockwood, 17 Wall. (U. S.) 357; St. Louis &c. R. Co. v. Nelson (Tex. Civ. App.), 44 S. W. Rep. 179 (no off. rep.); Chicago &c. R. Co. v. Winters, 175 Ill. 293; s. c. 51 N. E. Rep. 901; aff'g s. c. 61 Ill. App. 465; Louisville &c. R. Co. v. Bell, 100 Ky. 203; s. c. 18 Ky. L. Rep. 735; 38 S. W. Rep. 3; 8 Am. & Eng. Rail. Cas. (N. S.) 413; Fitchburg R. Co. v. Nichols, 85

VOL. 3 THOMP. NEG.-8

Fed. Rep. 945; s. c. 50 U. S. App. 297; 29 C. C. A. 500.

110 Orcutt v. Northern &c. R. Co., 45 Minn. 368; s. c. 47 N. W. Rep. 1068.

111 Saunders v. Southern &c. Co., 13 Utah 275; s. c. 44 Pac. Rep. 932; 4 Am. & Eng. Rail. Cas. (N. S.) 13; International &c. R. Co. v. Armstrong, 4 Tex. Civ. App. 146; s. c. 23 S. W. Rep. 236; Illinois &c. R. Co. v. Anderson, 184 Ill. 294; s. c. 56 N. E. Rep. 331; aff'g s. c. 81 Ill. App. 137; Louisville &c. R. Co. v. Faylor, 126 Ind. 126; s. c. 25 Ohio L. J. 55; 25 N. E. Rep. 869; Carroll v. Missouri &c. R. Co., 88 Mo. 239.

112 Post, § 3326.

113 Porter v. New York &c. R. Co., 59 Hun (N. Y.) 177; s. c. 36 N. Y. St. Rep. 315; 13 N. Y. Supp. 491; s. c. aff'd 129 N. Y. 627.

114 St. Louis &c. R. Co. v. Nelson (Tex. Civ. App.), 44 S. W. Rep. 179 (no off. rep.); Railroad Co. v. Lockwood, 17 Wall. (U. S.) 357, 359.

113

when he is making a necessary change at the end of a division of the road, from the caboose of the train in which he has been riding, to that of an outgoing train which is to take his stock for the purpose of continuing the transit.115

§ 2649. Mail Agents-Postal Clerks.116-There are decisions to the effect that where a railway company transports a mail agent upon its train, in pursuance of a contract made between the company and the Government, the relation of carrier and passenger does not, in a strict sense, subsist between the company and the mail agent; and that the carrier is not under that high degree of care117 toward the mail agent which springs out of a contract of carriage, but is under a duty imposed by law to transport him safely, which duty is violated when the mail agent is injured through the gross negligence of the carrier or his servant. One court, in so laying down the rule, concedes that gross negligence is here a relative term, depending upon the circumstances of each particular case.118 In like manner, another court has held that an agent in the employ of the United States Post-Office Department, travelling on a railway train, under the circumstances above stated, is not a "passenger," within the meaning of a statute.119 These decisions are contrary to sound principle and to the great weight of authority. A postal agent of the United States is lawfully upon the railway train, with the consent of the railway company, under a contract between the railway company and the Government, under which the railway company receives a consideration for carrying him, in order that he may discharge his duties upon the train. Such being his situation, the company is morally bound to exercise the same care to avoid injuring him that

115 Chicago &c. R. Co. v. Winters, 175 Ill. 293; s. c. 51 N. E. Rep. 901; aff'g s. c. 61 Ill. App. 465.

116 This section is cited in § 2651. 117 Post, 2722, et seq.

118 Nolton v. Western Rail. Corp., 15 N. Y. 444; s. c. Thomp. Carr. Pass. 37; 69 Am. Dec. 623. There is no propriety in the proposition that, in such a case, it requires gross negligence to charge the carrier; since, in such a case, any negligence is gross: Post, § 2722, et seq.

119 The idea implied in the word passenger was said to be that of a person who travels from place to place. Mere locomotion was not regarded as travel in the ordinary sense of the term. Thus, the conductors on lines of railroad pass over more miles in the course of

their employment, as the Pennsylvania court reasons, than any traveller of ancient or modern times, and yet, the court reasons, they would hardly be called "travelled men." It is noticeable that the court resorted to strained reasoning in order to exempt a railroad company from liability in this case, and it is creditable that one judge at least dissented: Pennsylvania R. Co. v. Price, 96 Pa. St. 256; s. c. aff'd 113 U. S. 219; s. c. 1 Am. & Eng. Rail. Cas. 234; opinion by Paxson, J., Trunkey, J., dissenting. Compare Foreman v. Pennsylvania R. Co., 195 Pa. St. 499; s. c. 46 Atl. Rep. 109 (holding that a postal clerk is not a passenger, and is entitled only to the care due to an employé).

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