2674. Duty of carrier to guard against injury to strangers who are not trespassers.

2672. Persons riding on hand cars. 2673. Passengers riding upon the 2675. Burden of proof to show that wrong train. person is not a passenger.

§ 2633. Relation of Carrier and Passenger, how Created.1-A carrier of passengers being one who holds himself out as engaged in the business of carrying persons from one place to another upon the performance by them of certain conditions and upon their submitting to certain reasonable regulations, it may be said, speaking generally, that the relation of carrier and passenger is created by the act of the carrier in so holding himself out to the public and by the act of the passenger in performing or tendering performance of such conditions, and in submitting himself to such regulations. Although the liability of the carrier to his passenger is not measured by contract, and does not in a strict sense depend upon contract, except in cases where it is limited by a valid contract between them, yet in the sense above stated, the relation may generally be said to have its origin in contract. This is equally so whether the passenger actually pays a fare for his passage, or whether he is accepted by the carrier upon his vehicle without the payment of fare. It has been therefore well said, speaking generally, that a passenger, in the legal sense, is one who travels in some public conveyance by virtue of a contract, express or implied, with the carrier, such as payment of fare, or that which is accepted as an equivalent thereof. It has been said that a passenger is one who has taken a place on a public conveyance for the purpose of being transported from one place to another.* He must be expressly or impliedly received as a passenger by the carrier, or his agent in charge of his means of conveyance, before he can be said to sustain that relation to the carrier. With respect to a person on a railway train, it is said that the knowledge or consent of the company, or of its agent in charge of the train, is essential, unless such person is rightfully on the train," as where he has purchased from the station agent of the company a ticket which entitles him to

1 This section is cited in § 2720. 2 Post, § 2646.

Bricker v. Philadelphia 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.

"Altemeier v. Cincinnati St. R. Co., 4 Ohio N. P. 224; s. c. 4 Ohio Leg. News 300. But this definition is too narrow. It will be seen hereafter

3

a passage on a particular train, and boards the train in right of his ticket. It is therefore better to say that the relation is created by the act of the passenger in boarding the carrier's vehicle, with the knowledge or consent of the carrier, manifested through his proper agent, which may be his agent at the station selling the ticket, or his agent in charge of the train. Nor is the boarding of the train necessary, in the view of the courts, to make one a passenger; but, according to one view, one who purchases a ticket at a railway station intending to become a passenger upon a train of the company thereafter to arrive, is a passenger while waiting in the station for the arrival of the train, so as to put upon the company the duty of exercising reasonable care for his safety. So, a person who, on arriving at a railway station intending to purchase a ticket to a particular destination, finds the ticket office closed, so that he can neither procure the ticket nor learn whether the next train stops at his destination until after he has boarded such train, and who, after boarding the train and learning that it does not stop at his destination, tenders the full fare to the next regular stopping place,-is entitled to be treated as a passenger while on the train, though not entitled to have the train stop at the place of his destination. Finally, it has been held. that every person travelling in a railroad car or other conveyance used for passenger carriage, if not connected with the carrier, is presumed to be there lawfully as a passenger, and the burden is on the carrier to prove that he is a trespasser."

2634. Who Deemed a Passenger.-At the outset, it is important to inquire who is to be deemed a passenger and entitled to the rights of such, and to the extraordinary care which the law demands of carriers of passengers; and especially, who is to be deemed a passenger in contradistinction to a trespasser upon the vehicle of the carrier. A passenger, to all intents and purposes, is one who, having paid. his fare or purchased his passage ticket, boards the proper train, vessel, or other vehicle of the carrier, with the bona fide intent of taking passage to his destination, and with the consent, express or implied, of the carrier's agents or servants having the authority to determine who shall and who shall not ride upon the train, vessel, or other vehicle.10 It is not necessary to the acquisition of the rights of

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.

8 Baltimore &c. R. Co. v. Norris, 17 Ind. App. 189; s. c. 60 Am. St. Rep. 166; 46 N. E. Rep. 554.

9 Iseman v. South Carolina &c. R.

Co., 52 S. C. 566; s. c. 30 S. E. Rep. 488; 11 Am. & Eng. R. Cas. (N. S.) 219.

10 Choate v. Missouri &c. R. Co., 67 Mo. App. 105; Martin v. Southern R. Co., 51 S. C. 150; s. c. 28 S. E. Rep. 303.

a passenger that the person boarding the carrier's vehicle should have. previously purchased a ticket or paid his fare. This is especially true in respect of railway passengers where the ticket office is not kept open for a sufficient time before the arrival of the train which the passenger intends to take, to give him an opportunity to purchase a ticket. It is true where the statute law permits passengers to board the train without the payment of fare and to pay the fare to the conductor.12 It is true in respect of a person who boards a train on which passengers are allowed to be carried, without the permission or knowledge of the conductor, but where the conductor, after becoming aware of his presence on the train, suffers him to remain without the payment of fare.18 It is true with reference to a person who goes to a flag station on a railroad, at which there is no ticket office, for the purpose of boarding a train: he is, upon properly signifying an intention to get upon a passenger train which has actually stopped, entitled to the rights of a passenger.14 It is true where a person boards a train at a place where the company does not receive passengers, and rides several miles with the knowledge of the conductor, who does not eject him as a trespasser, but finally demands fare for his transportation,-with the conclusion that if he produces money and offers to pay his fare before the conductor has taken steps to eject him, he can not be lawfully ejected, for the reason that the conductor has elected to treat him as a passenger.15 With regard to the train on which the rights of a passenger may be ascribed to one taking passage, it is not necessary that it should be what is known as a regular train running on a regular schedule of time; but the relation may arise upon a chartered excursion train, passing over a railroad.16 It may be a mixed train or an accommodation train, and those taking passage on it will be entitled to the utmost degree of care and caution which is practicable upon such trains;17 and it may be a freight train, provided it is the custom of the company to transport passengers upon such trains. 18 With regard to the persons who may acquire the status of passengers, it has been held that a child nine years of age in

11 Ante, § 2610; post, § 2643.

12 Missouri &c. R. Co. v. Simmons, 12 Tex. Civ. App. 500; s. c. 33 S. W. Rep. 1096.

13 Muehlhausen v. St. Louis R. Co., 91 Mo. 332; s. c. 6 West. Rep. 857; post. § 3221.

14 Western &c. R. Co. v. Voils, 98 Ga. 446; s. c. 35 L. R. A. 655; 26 S. E. Rep. 483.

15 Kansas City &c. R. Co. v. Holden, 66 Ark. 602; s. c. 53 S. W. Rep. 45.

VOL. 3 THOMP. NEG.-7

16 Texarkana &c. R. Co. v. Anderson, 67 Ark. 123; s. c. 53 S. W. Rep. 673. See Little Rock &c. R. Co. v. Nelson, 66 Ark. 494; Jackson v. St. Paul &c. R. Co., 74 Minn. 48; Exton v. Central Co., 62 N. J. L. 7; Williams v. Oregon &c. R. Co., 18 Utah 210; Louisville &c. R. Co. v. Bell, 100 Ky. 203.

17 Dillingham v. Wood (Tex. Civ. App.), 27 S. W. Rep. 1074 (no off. rep.).

18 Post, 2666.

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the care of its mother, may, after the mother has provided herself with a passage ticket and become a passenger,-with the conclusion that fare may be demanded for the carriage of the child.19 In contradistinction from trespassers to whom the carrier owes no special care,20 a child too young to be imputable with negligence, who is invited by the servants of the carrier, albeit in violation of their instructions, to ride upon a car,-for example a push car,-acquires the right to have at least ordinary care exercised to promote his safety.21

§ 2635. Persons on Board Carrier's Vehicle Presumed to be Passengers. Generally speaking, every person on board the vehicle of a common carrier of passengers, other than the servants of the carrier, is presumed to be there lawfully as a passenger.22 For example, one who is upon a passenger train, and while there meets his death in an accident to the train, will be presumed to have taken the train with lawful intent and to have been entitled to the rights of a passenger, when nothing in his manner of boarding the train, or in the facts in evidence, raises a doubt upon the question.23 In the absence of all evidence speaking upon the question, a person not a servant of the carrier, riding upon a railway passenger train, is presumed to be lawfully there, and to have paid his fare as a passenger."

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2636. Who not Deemed a Passenger. 25-The following persons have been held not to be passengers:-One who boards a special excursion train, knowing that it does not stop at regular stations, while standing at a place which does not imply a general invitation to the public to go on board of it;26 a person who, having a passage ticket,

19 Beckwith v. Cheshire R. Co., 143 Mass. 68; s. c. 3 N. E. Rep. 186.

20 Post. §§ 3310, 3311, 3312.

21 Missouri &c. R. Co. v. Rodgers (Tex. Civ. App.), 1 Am. Neg. Rep. 708; s. c. 39 S. W. Rep. 383 (no off. rep.). Compare post. § 3303.

22 Louisville &c. R. Co. v. Thompson, 107 Ind. 442; s. c. 5 West. Rep. 838.

23 Inness v. Boston &c. R. Co., 168 Mass. 433; s. c. 47 N. E. Rep. 193.

24 Dunn v. Grand Trunk R. Co., 58 Me. 187; Hanson v. Mansfield R. Co., 38 La. An. 111.

25 This section is cited in § 3304. 20 Fitzgibbon v. Chicago &c. R. Co., 108 Iowa 614; s. c. 79 N. W. Rep. 477; 14 Am. & Eng. Rail. Cas. (N. S.) 270. If a train is not designed for the use of passengers in general,

but nevertheless a person boards it as a passenger without right, there is no implied acceptance of him by the carrier as a passenger: Pennsylvania R. Co. v. Price, 96 Pa. St. 267; Wagner v. Missouri &c. R. Co., 97 Mo. 512; s. c. 3 L. R. A. 156; Atchison &c. R. Co. v. Headland, 18 Colo. 477; s. c. 20 L. R. A. 822; Eaton v. Delaware &c. R. Co., 57 N. Y. 382; s. c. 15 Am. Rep. 513; Texas &c. R. Co. v. Black, 87 Tex. 160; s. c. 27 S. W. Rep. 118; Southwestern R. Co. v. Singleton, 66 Ga. 252; Rosenbaum v. St. Paul &c. R. Co., 38 Minn. 173; Keating v. Michigan &c. R. Co., 97 Mich. 154; Haase v. Oregon R. &c. Co., 19 Or. 354. But it does not follow from this that he can be subjected to the treatment of a trespasser, especially where he has

attempts to get on board a train at a station at which it has stopped only to let off passengers, where the train starts just as he steps on the platform of a car, and none of the trainmen knew of his presence, or of his intention to board the train, and are not negligent in not knowing;27 a person who gets upon a railway train after it has started, and falls off before he gets to a place of safety inside;28 a person who boards a construction train to ride upon switch tracks constructed in the ordinary manner, with the conclusion that he accepts the risks incident to the train and track, except those arising from the negligence of the company;29 one who travels on a construction train with the assent of the conductor over a newly built portion of the road, and who remains on the train and receives an injury half an hour after the train has reached its destination,-with the conclusion that his status as a passenger does not continue so long after the transit has ended.30

$2637. Who not Deemed a Trespasser. 31-The following persons have been held not to be trespassers:-The wife and child of an employé of the railway company, travelling to the point where the husband and father is at work, without a ticket and without a pass, though entitled to a pass,-with the conclusion that a recovery might be had for an injury to the child caused by a derailment of the train;32 a person who, through a mistake and misapprehension as to the rules of the road, attempted to ride on a limited ticket, which had in fact expired, and was ejected from the train,—with the conclusion that he

made an honest mistake in boarding the train: Post, §§ 2637, 2673; Arnold v. Pennsylvania R. Co., 115 Pa. St. 135; s. c. 6 Cent. Rep. 630.

27 Jones v. Boston &c. R. Co., 163 Mass. 245; s. c. 39 N. E. 1019.

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

2 Rosenbaum v. St. Paul &c. R. Co., 38 Minn. 173; s. c. 36 N. W. Rep. 447. But one who is received on a construction train as a passenger, by the conductor of the train, is entitled to the rights of a passenger, although the conductor has no authority to receive him as such, unless he knows that he is there in violation of the rules of the company: Chicago &c. R. Co. v. Frazer, 55 Kan. 582; s. c. 40 Pac. Rep. 923.

Chicago &c. R. Co. v. Frazer, 55 Kan. 582; s. c. 40 Pac. Rep. 923. Circumstances under which the foreman of a gang of men, employed to build stone walls for the company, was not deemed to have been wrongfully upon a car while preparing a

stone for unloading, and while the car was being moved in the operation of switching: Illinois &c. R. Co. v. McCowan, 70 Ill. App. 345. The status of a passenger was denied to a boy eleven years old, who, without any ticket or means of paying his fare, got upon a pay car om which passengers were not allowed! to ride, after being notified of that fact: Chicago &c. R. Co. v. Hoffman, 82 Ill. App. 453; s. c. 4 Chic. L. J. Wkly. 238. The mere fact that, on the body of a man killed in a railway accident, a pass is found, issued to another person, does not create a presumption that the possession of it by the deceased person was fraudulent: Louisville &c. R. Co. v. Thompson, 107 Ind. 442; s. c. 5 West. Rep. 833.

31 This section is cited in §§ 2636, 3304.

32 Galveston &c. R. Co. v. Snead, 4 Tex. Civ. App. 31; s. c. 23 S. W. Rep. 277.