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§ 2673. Passengers Riding upon the Wrong Train. 243-The holder of a passage ticket who, by mistake, and in good faith, enters the wrong train, is held to be a passenger, so far as to entitle him to protection against the negligence of the servants of the company.244 Where, for instance, railroad companies permit passengers to be usually carried on some of their freight trains, if persons go aboard one of their trains supposing it, in good faith, to be one of those on which passengers are thus carried, and are not informed to the contrary before receiving injuries to their persons, caused by the mismanagement of the train, and there being nothing in the situation or condition of the train showing that passengers are not carried upon it as well as upon any other freight train,—such persons will have the rights of passengers in respect to such injuries, although they were not in the habit of carrying passengers on that train; and especially will this be so if they are directed to go aboard by the conductor of the train, although such conductor has in fact no authority from the company for that purpose. In such a case, the jury might properly find that such persons were aboard such freight train as passengers. And it would be competent for such persons, in a suit for damages for injuries received by them while on such train, to introduce in evidence conversations held by them at the time with the person who directed them to the train, tending to show that he was an employé of the company.245 Persons intending to travel by railway are held by the law to the exercise of ordinary intelligence and prudence to the end of ascertaining which train to take, and the time of its departure, and are expected to avail themselves of the information so obtained; and it is said that it is not the duty of the carrier to

Wis. 657. In this case the complaint averred that the defendant had negligently placed the planks, at a highway crossing of the defendant's railway, between rails, so that, instead of lying level with the grade they were loose, warped, and projected upward four or five inches above the proper level, with the result that the plaintiff was injured while riding on the hand car by his heels coming in contact with them. It was held that the court could not say, as matter of law, that this statement did not show a defect in the defendant's road, and an injury to the plaintiff therefrom constituting actionable negligence: Pool v. Chicago &c. R. Co., 53 Wis. 657.

112 Ind. 26; s. c. 11 West. Rep. 223; 13 N. E. Rep. 122; Gary v. Gulf &c. R. Co., 17 Tex. Civ. App. 129; s. c. 42 S. W. Rep. 576. Persons boarding wrong train or car by mistake are passengers: See Columbus &c. R. Co. v. Powell, 40 Ind. 37; International &c. R. Co. v. Gilbert, 64 Tex. 536; Schurr v. Houston &c. R. Co., 10 N. Y. St. Rep. 262. Especially after acceptance of ticket by conductor: Lewis v. Delaware &c. Canal Co., 145 N. Y. 508; s. c. 65 N. Y. St. Rep. 374; 40 N. E. Rep. 248; rev'g s. c. 80 Hun (N. Y.) 192; 61 N. Y. St. Rep. 773; 30 N. Y. Supp. 28.

245 Lucas v. Milwaukee &c. R. Co., 33 Wis. 41. See, also, Dunn V. Grand Trunk R. Co., 58 Me. 187;

243 This section is cited in §§ 2636, Creed v. Pennsylvania R. Co., 86 3304. Pa. St. 139; Houston &c. R. Co. v.

244 Cincinnati &c. R. Co. v. Carper, Moore, 49 Tex. 31.

volunteer this information except upon request.246 If, therefore, a mistake is made by the passenger as to the train which he should take, which mistake has not been induced by the company, no redress can be had against the company for the resulting damages, provided the passenger might have avoided the mistake by ordinary diligence in making inquiries.247

§ 2674. Duty of Carrier to Guard against Injury to Strangers who are not Trespassers.-The duty of a carrier to guard against injury to strangers, excluding the case of mere trespassers, upon its vehicles,248 is not the same as in the case of passengers, but is governed by the general principles of social duty which the law imposes upon men in relations not springing out of contract. In such a case the carrier is not held to the strict rule of diligence which must be exercised by a common carrier of passengers,249 but is held to the rule of observing ordinary or reasonable care to avoid inflicting injury upon such strangers, after their presence becomes known.250 A carrier may, it seems, become liable after receiving an infant on board its vehicle without the consent of its parents, if the child is killed or injured while so riding, although, in strictness, the relation of carrier and passenger may not subsist.251

§ 2675. Burden of Proof to Show that Person is not a Passenger.— Generally speaking, it may be said that, in conformity to the assumption of right-acting, every person riding upon the vehicle on which the carrier usually conveys passengers, is presumed, prima facie, to be there lawfully as a passenger, and to have either paid his fare or to be willing and able to pay it when called upon so to do,—a rule which casts the onus upon the carrier to prove affirmatively that such a person is a trespasser. 252 This is especially true in regard to passengers on street railway cars, where the practice is for the conductor to collect the fare after the passenger boards the car.253

246 Missouri &c. R. Co. v. Walden (Tex. Civ. App.), 46 S. W. Rep. 87 (no off. rep.).

247 Duling v. Philadelphia &c. R. Co., 66 Md. 120; s. c. 5 Cent. Rep. 571.

24 Post. § 3302.

249 Post, § 2722, et seq.

250 Snyder v. Natchez &c. R. Co., 42 La. An. 302; s. c. 7 South. Rep. 582; Chicago &c. R. Co. v. Mehlsack, 131 Ill. 61; s. c. 41 Am. & Eng. Rail.

Cas. 60; 7 Rail. & Corp. L. J. 117; 22 N. E. Rep. 812.

251 Cook V. Houston Direct Nav. Co., 76 Tex. 353; s. c. 13 S. W. Rep. 475.

262 Pennsylvania R. Co. v. Books, 57 Pa. St. 339; Creed v. Pennsylvania R. Co., 86 Pa. St. 139.

253 Bartlett v. New York &c. R. Co., 57 N. Y. Super. 348; s. c. 29 N. Y. St. Rep. 357; 8 N. Y. Supp. 309; s. c. aff'd 130 N. Y. 659.

CHAPTER XC.

SAFE AND CONVENIENT STATIONS AND
APPROACHES.

DUTY OF CARRIER AS TO

SECTION

2678. A general statement of this duty.

2679. Not an insurer, but liable for reasonable care only.

2680. Applications of this doctrine.
2681. Doctrine that carrier is bound
to use extraordinary care as
to the safety of stations,
grounds, etc.

2682. To what portions of the car-
rier's grounds this duty ex-
tends.
2683. Extends to providing safe
waiting-rooms for passen-

to providing

gers.

2684. Extends

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toilet rooms

waiting-rooms.

safe

annexed

to

2685. To whom this duty extends. 2686. Extends to all persons lawfully there on business with the carrier.

2687. Does not extend to mere idlers and spectators.

2688. Extends to providing safe platforms.

2689. Further of the duty of pro-
viding safe platforms.

2690. Still further of this duty.
2691. Duty to keep platforms, ap-
proaches thereto, and sta-
tions lighted at night.

2692. Instances of negligence in fail

SECTION

2695. Cases of defective platforms where the carrier was exonerated.

2696. Care of platform maintained jointly by two companies. 2697. Right of passenger to assume that the platform is safe.

2698. Other instances of negligence with respect to the carrier's premises.

2699. This duty extends to providing safe passage-ways.

2700. Illustrations of this duty. 2701. Extends to care in moving trains so as not to injure passengers.

2702. Extends to providing safe means of ingress to carrier's vehicle.

2703. Extends to providing passenger with safe means of alighting from carrier's vehicle.

2704. And safe means of egress therefrom.

2705. Duty to protect alighting passengers from being struck

by other trains. 2706. Duty to provide servants to guide and direct passengers. 2706a.Duty to provide guards to control crowds and prevent injury to passengers.

ing to keep premises 2707. Duty to provide safe passage

lighted.

2693. Other such instances.

2694. Further illustrations showing

the extent of this duty.

to and from mail cars.

2708. Duty to provide safe passage

to and from refreshment

rooms.

SECTION

2709. Duty to provide safe passageways to and from baggage

rooms.

2710. Duty to provide safe passage

SECTION

2713. In the case of passengers on elevated railways.

2714. In case of passengers on
freight trains.

to and from its telegraph 2715. Duty of providing safe
office.
wharves by carriers by

2711. Passengers injured by throw

water.

ing mail sacks from moving 2716. Injuries to waiting passengers through carelessness of the carrier's servants.

trains.

2712. Application of these principles

to street railways.

§ 2678. A General Statement of this Duty.1-Many cases affirm the principle that it is the duty of a common carrier of passengers to keep his station house, waiting-rooms, platforms, and passage-ways to and from his vehicles, and all other portions of his grounds to which passengers will naturally resort, in going upon or leaving his vehicles, in a reasonably safe condition for the purposes intended, and that for any violation of the duty in this respect which entails injury upon a passenger without his own fault, the carrier will be answerable in damages."

3

§ 2679. Not an Insurer, but Liable for Reasonable Care Only.3This does not mean that the carrier is an insurer or warrantor of

1 This section is cited in §§ 2670, 3059.

2

Pennsylvania Co. v. Marion, 123 Ind. 415; s. c. 7 L. R. A. 687; 23 N. E. Rep. 973; Merwin v. Manhattan R. Co., 48 Hun (N. Y.) 608; s. c. 16 N. Y. St. Rep. 20; s. c. aff'd 113 N. Y. 659; Delaware &c. R. Co. v. Trautwein, 52 N. J. L. 169; s. c. 7 L. R. A. 435; 19 Atl. Rep. 178; 7 Rail. & Corp. L. J. 316; 41 Am. & Eng. Rail. Cas. 187; Philadelphia &c. R. Co. v. Anderson, 72 Md. 519; s. c. 8 L. R. A. 673; 20 Atl. Rep. 2; Wallace v. Wilmington &c. R. Co., 8 Houst. (Del.) 529; s. c. 18 Atl. Rep. 818; Bateman v. New York &c. R. Co., 47 Hun (N. Y.) 429; s. c. 14 N. Y. St. Rep. 454; Christie v. Chicago &c. R. Co., 60 Minn. 161; s. c. 63 N. W. Rep. 482; Union &c. R. Co. v. Evans, 52 Neb. 50; s. c. 71 N. W. Rep. 1062; Buenemann v. St. Paul &c. R. Co., 32 Minn. 390; Skottowe v. Oregon &c. R. Co., 22 Ore. 430; s. c. 16 L. R. A. 593; Collins v. Toledo &c. R. Co., 80 Mich. 390; Union &c. R. Co. v. Sue, 25 Neb. 772; s. c. 41 N. W. Rep. 801; Reed v. Axtell, 84 Va. 231; Central R. Co.

v. Thompson, 76 Ga. 770; Green v. Pennsylvania R. Co., 36 Fed. Rep. 66; Longmore v. Great Western R. Co., 19 C. B. (N. S.) 183; s. c. Thomp. Carr. Pass. 81; Nicholson v. Lancashire &c. R. Co., 3 Hurl. & Colt. 534; s. c. Thomp. Carr. Pass. 85; McDonald &c. R. Co. v. Chicago &c. R. Co. 26 Iowa 124; s. c. Thomp. Carr. Pass. 93; s. c. on second appeal 29 Iowa 170, 175; Texas &c. Co. v. Mays, 4 Wills. (Tex. Civ. App.) 125; s. c. 15 S. W. Rep. 43; Moses v. Louisville &c. R. Co., 39 La. An. 649; s. c. 2 South. Rep. 567; Gulf &c. R. Co. v. Hodges (Tex. Civ. App.), 24 S. W. Rep. 563; Chewning v. Ensley R. Co., 100 Ala. 493; s. c. 14 South. Rep. 204; Gilmore v. Philadelphia &c. R. Co., 154 Pa. St. 375; s. c. 25 Atl. Rep. 774; Archer v. New York &c. R. Co., 106 N. Y. 589; s. c. 13 N. E. Rep. 318; Dodge v. Boston &c. S. S. Co., 148 Mass. 207; s. c. 19 N. E. Rep. 373; New York &c. R. Co. v. Doane, 115 Ind. 435; s. c. 1 L. R. A. 157.

This section is cited in §§ 2697, 2749, 3191.

the safety of his station houses, premises, passage-ways, etc.; nor does it mean that, in this regard, he is held to the exact degree of care to promote the safety of his passengers which the law puts upon him after they have boarded his vehicle for the purpose of transit and committed their personal safety entirely to him; but it means that his duty is to take reasonable care to keep his premises in such a state that those whom he invites to go there shall not be unnecessarily exposed to danger. It has been distinctly ruled that a less degree of care is required of a railroad company in regard to the condition of the approaches to its cars, such as platforms, halls, stairways, etc.-than to that of the roadbed, machinery, passenger trains, etc., the rule being that in regard to the former, the company is bound simply to exercise ordinary care in view of the dangers to be apprehended; its duty in this respect being to provide a reasonably safe place for the accommodation of those awaiting the arrival and departure of trains, and to take such precautions for their safety as would naturally occur to ordinarily prudent and cautious men, and to guard against such accidents as are likely to occur or are reasonably to be apprehended by prudent men. And accordingly, an instruction that such a company is bound to take every possible precaution against injuries to passengers while crossing the station grounds, and is liable for such injuries, if human foresight could have prevented them, was held erroneous.9

§ 2680. Applications of this Doctrine.-Accordingly, it has been held that a railroad company is not liable for injuries occasioned by its buildings or structures being blown down by a storm, where it

'Welfare v. London &c. R. Co., L. R. 4 Q. B. 693; s. c. 38 L. J. (Q. B.) 241; 17 Week. Rep. 1065; 20 L. T. (N. S.) 743.

As to this degree of care, see post. § 2722, et seq.

Blackburn, J., in Welfare v. London &c. R. Co., supra: Johnson v. Manhattan R. Co., 52 Hun (N. Y.) 111; s. c. 23 N. Y. St. Rep. 388; McDonald v. Chicago &c. R. Co., 26 Iowa 124; s. c. 29 Iowa 170; Thomp. Carr. Pass. 93; Liscomb v. New Jersey &c. R. Co., 6 Lans. (N. Y.) 75; Hulbert v. New York &c. R. Co., 40 N. Y. 145; Knight v. Portland &c. R. Co., 56 Me. 234; Martin v. Great Northern R. Co., 16 C. B. 129; Moreland v. Boston &c. R. Corp., 141 Mass. 31; s. c. 1 N. E. Rep. 909; O'Rielly v. Long Island R. Co., 15 App. Div. (N. Y.) 79; s. c. 44 N. Y. Supp. 264; Robertson v. Wabash &c.

R. Co., 152 Mo. 382; s. c. 53 S. W. Rep. 1082; Trinity &c. R. Co. v. O'Brien, 18 Tex. Civ. App. 690; s. c. 46 S. W. Rep. 389; Pennsylvania R. Co. v. Hammill, 56 N. J. L. 370; s. c. 24 L. R. A. 531; 29 Atl. Rep. 151 (footway along railroad bridge leading to passenger station); Chicago &c. R. Co. v. Scates, 90 III. 586; Clark v. Howard. 88 Fed. Rep. 199; s. c. 60 U. S. App. 32; Ainley v. Manhattan R. Co., 47 Hun (N. Y.) 206; s. c. 13 N. Y. St. Rep. 557.

Kelly v. Manhattan R. Co., 112 N. Y. 443; s. c. 3 L. R. A. 74; 21 N. Y. St. Rep. 507; 20 N. E. Rep. 383.

8 Kirby v. Delaware &c. Canal Co., 20 App. Div. (N. Y.) 473; s. c. 46 N. Y. Supp. 777; Trinity &c. R. Co. v. O'Brien, 18 Tex. Civ. App. 690; s. c. 46 S. W. Rep. 389.

"Moreland v. Boston &c. R. Co., 141 Mass. 31.

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