§ 2655. When such Employés Deemed Passengers.-But other cases hold the contrary, placing their conclusion upon the ground that the laborer pays a consideration for his carriage in a reduction of his wages, and is hence to be deemed a passenger for hire.145 This is especially true where the contract of the employé with the railway company entitles him to a free transportation, and he is not under any obligation to ride, or engage in any service for the company while so riding.146 This conclusion rests on the ground that the servants of the carrier, through whose negligence he is injured, are not engaged with him in the same general employment, within the meaning of the rule which exonerates the master in the case of an injury inflicted upon one servant through the negligence of another.147 Outside of these cases, it has been held that a railway company is not liable for an injury inflicted upon one of its employés received while off duty, through the negligence of another of its employés in charge of a car which had been loaned by the company for their use.148 And, clearly, if the employé is travelling upon. the employer's vehicle upon his own business and not upon the business of his employer, for a fee paid or to be paid, and the employer is a common carrier, he will stand toward the employé in the relation of a carrier toward his passenger.149 A street railway employé who,

145 O'Donnell v. Allegheny &c. R. Co., 59 Pa. St. 239; s. c. 50 Pa. St. 490. See also Cumberland &c. R. Co. v. Myers, 55 Pa. St. 288; Kansas Pacific R. Co. v. Salmon, 11 Kan. 83; s. c. 14 Kan. 512. For cases of contractors' workmen being carried on train, see Torpy v. Grand Trunk R. Co., 20 Upper Canada Q. B. 446; Sheerman v. Toronto &c. R. Co., 34 Upper Canada Q. B. 451; and Graham v. Toronto &c. R. Co., 23 Upper Canada C. P. 541.

146 McNulty v. Pennsylvania R. Co., 182 Pa. St. 479; s. c. 38 L. R. A. 376; 41 W. N. C. (Pa.) 105; 28 Pitts. L. J. (N. S.) 149; 38 Atl. Rep. 524; Dobson v. New Orleans &c. R. Co., 52 La. An. 1127; s. c. 27 South. Rep. 670 (foreman of a gang of laborers returning late at night after all the members of the gang save himself had quit the cars); Williams v. Oregon &c. R. Co., 18 Utah 210; s. c. 12 Am. & Eng. Rail. Cas. (N. S.) 61; 54 Pac. Rep. 991 (employé travelling on carrier's train at a point where he is to prosecute his work. See also note on this subject in 21 L. R. A. 321.

147 Gillenwater v. Madison &c. R. Co., 5 Ind. 339. See this and the

foregoing case disapproved in Columbus &c. R. Co. v. Arnold, 31 Ind. 182. See also Fitzpatrick v. New Albany &c. R. Co., 7 Ind. 436.

148 Davis v. Chicago &c. R. Co., 45 Fed. Rep. 543.

149 Ohio &c. R. Co. v. Muhling, 30 Ill. 9. But see Higgins v. Hannibal &c. R. Co., 36 Mo. 418. In the days of slavery, it was held that railroad companies were legally responsible for injuries to slaves hired to aid in running trains, where the injury was the result of carelessness of their agents: Louisville &c. R. Co. v. Yandell, 17 B. Mon. (Ky.) 586. That a common carrier employing a servant to work at a terminal point, and contracting to transport him to and from work, can not, through its train officials, lawfully require him to vacate a seat which he is occupying in the car to which he has been duly assigned.-see New York &c. R. Co. v. Burns, 51 N. J. L. 340; s. c. 17 Atl. Rep. 630. Where the question becomes material whether the plaintiff, suing a railroad company for damages for an injury, was a servant or a passenger, the defendant has the right to put in evidence

after his day's work had been finished, was, with others, directed by the foreman of the work, to go home upon the company's street cars because of the absence of a hand car by which they were usually taken home, was not deemed a trespasser, although he rode upon the motor instead of the car for the reason that the latter was filled with passengers.150

§ 2656. Employés of Sleeping Car Companies.-An employé of a sleeping car company whose car is attached to the train of a railway company, under the usual contract between such companies, is not a passenger of the railway company in such a sense as to require of the railway company the highest degree of skill and care in the construction and maintenance of its roadway and machinery, nor so as to render applicable the principle that negligence is presumed prima facie from the mere fact of the occurrence of an accident and the infliction of an injury.151

§ 2657. Persons Engaged in Business on the Carrier's Vehicle.For the same reasons, a person who, under a contract with the carrier, is lawfully upon his vehicle for the purpose of carrying on a business of his own, for which privilege he pays a consideration to the carrier, occupies the position of a passenger for hire, although he does not pay anything specifically as passage money, and is entitled to the same measure of care as the law exacts in favor of a passenger for hire.152 It has been so held, in case of a person leasing a bar on a steamboat for the purpose of selling liquors, cigars, etc., and paying for the privilege a certain sum per month.153 So, where a railroad company, in consideration of the payment to them by a person of a certain sum of money per year in quarterly installments, and of his agreement to supply the passengers on one of their trains with iced water, issued season tickets to him quarterly for his passage on any of their regular trains, and permitted him to sell popped corn

a pass describing the plaintiff as the "route agent, an employé" of the company, and to have the effect of it go to the jury: Pennsylvania R. Co. v. Books, 57 Pa. St. 339. A railroad employé having a monthly ticket given him, which is good for more rides than are necessary in attending to his work, with the express privilege of using them for his own private interest or pleasure, is not, when passing over the road entirely for his own business or pleasure, an employé, but is a passenger. within Mass. Pub. Stat., chap. 112,

§ 212, creating a liability for injury to a passenger: Doyle v. Fitchburg R. Co., 161 Mass. 533; s. c. 25 L. R. A. 157; 37 N. E. Rep. 770.

150 Denver &c. Transit Co. v. Dwyer, 20 Colo. 132; s. c. 36 Pac. Rep. 1106; rev'g s. c. 3 Colo. App. 408; 33 Pac. Rep. 815.

151 Hughson v. Richmond &c. R. Co., 2 App. (D. C.) 98; s. c. 22 Wash. L. Rep. 55.

152 Yeomans v. Contra Costa Steam Nav. Co., 44 Cal. 71.

153 Yeomans v. Contra Costa Steam Nav. Co., 44 Cal. 71.

on all their trains, it was held that his relation to them while travelling on their road under this contract was that of a passenger, and not that of a servant.154 But a boy selling newspapers on the street, and accustomed to board street cars, with the acquiescence of the servants of the company, for the purpose of supplying the passengers with papers, is not a passenger, and the company is not charged with the duty of looking after his safety, or of seeing that he does not run into danger, or of stopping or slackening the speed of the car for him to leave it, whether requested so to do or not.155 Nor is a newsboy deemed to be employed on or by the carrier, within the meaning of a statute of Pennsylvania,156 limiting the right of action for personal injuries to persons so employed, to the right which an employé would have,-in other words, giving him no right of action for an injury sustained through the negligence of another employé.157

§ 2658. Persons Attending Passengers Arriving or Departing.— A person going upon a railway train to assist another person on or off, is clearly not a passenger,158 and is therefore not entitled to the high and exact degree of care for his safety which the law imposes upon a common carrier in respect of his passenger. He is either a licensee or a trespasser, depending upon the known rules of the company or the circumstances of the particular case. If, for instance, he is there in conformity with a practice approved or acquiesced in by the carrier, he is to be deemed lawfully there; his position is that of a licensee; and, under a principle hereafter considered,159 the carrier, if he have notice of his presence on his vehicle, owes him the duty of ordinary or reasonable care. In such a case he is entitled to a reasonable time for rendering the necessary assistance to the passenger to leave the vehicle of the carrier, provided the servants of the carrier have notice of his purpose to leave; and if he is injured without negligence on his own part, in consequence of not being

154 Com. v. Vermont &c. R. Co., 108 Mass. 7.

155 Fleming v. Brooklyn City R. Co., 1 Abb. N. C. (N. Y.) 433.

156 Pa. Act of April 4, 1868. 157 Philadelphia Traction Co. V. Orbann, 119 Pa. St. 37; s. c. 11 Cent. Rep. 628; 12 Atl. Rep. 816; 21 W. N. C. (Pa.) 76.

158 Dillingham v. Pierce (Tex. Civ. App.), 31 S. W. Rep. 203 (no off. rep.) (company owes ordinary care, but no more); Louisville &c. R. .Co. v. Espenscheid, 17 Ind. App. 558; s. c. 47 N. E. Rep. 186; Griswold v. Chicago &c. R. Co., 64 Wis. 652; Lucas v. New Bedford &c. R. Co., 6

Gray (Mass.) 70; Missouri &c. R. Co. v. Miller, 8 Tex. Civ. App. 241; s. c. 27 S. W. Rep. 955. There is a decision to the effect that the relation of carrier and passenger exists between a railway company and a father who goes upon its train, under a distinct agreement with the company, to secure a seat for his invalid daughter: Evansville &c. R. Co. v. Athon, 6 Ind. App. 295; s. c. 33 N. E. Rep. 469. To the same effect, see Louisville &c. R. Co. v. Crunk, 119 Ind. 542.

15 Post, § 3309. Compare Vol. II, § 1705, et seq.

allowed such reasonable time to alight, he may recover damages from the carrier. 160 It is a part of this doctrine that the company must be notified, through its servants, of an intention of the person so entering its vehicle to assist a passenger to get off the train, if the usual time for stopping is not sufficient to enable him to render such assistance and get off in safety.161 It must be kept in mind that the conductor and trainmen will not ordinarily know who, among those who get upon the train, are passengers, and who are there merely to assist passengers; hence it is a sound and just conclusion that, in the absence of notice of his intention to leave the train after assisting a passenger into the car, the company will not be chargeable with negligence because of not stopping the train for more than the usual and reasonable time, to enable passengers exercising ordinary care to get on and off in safety;162 but where such person gives notice to a trainman of his purpose to get off, those in charge of the train are bound so to regulate its movements as to afford him a reasonable

100 Whitley v. Southern &c. R. Co., 122 N. C. 987; s. c. 29 S. E. Rep. 783; Missouri &c. R. Co. v. Miller, 15 Tex. Civ. App. 428; s. c. 39 S. W. Rep. 583; s. c., on former appeal, 8 Tex. Civ. App. 241; Dillingham v. Pierce (Tex. Civ. App.), 31 S. W. Rep. 203 (no off. rep.); Cherokee Packet Co. v. Hilson, 95 Tenn. 1; s. c. 31 S. W. Rep. 737. But he can not recover unless the company have notice: Little Rock &c. R. Co. v. Lawton, 55 Ark. 428; s. c. 18 S. W. Rep. 543; and note in 15 L. R. A. 434; Johnston v. Southern R. Co., 53 S. C. 203; s. c. 12 Am. & Eng. Rail. Cas. (N. S.) 272; 31 S. E. Rep. 212 (husband entering a train to render assistance not afforded by trainmen to his wife, encumbered with heavy baggage); International &c. R. Co. v. Satterwhite, 19 Tex. Civ. App. 170; s. c. 47 S. W. Rep. 41; 12 Am. & Eng. Rail. Cas. 214 (person escorting his sister to a seat not precluded from recovering damages because he failed to request a brakeman to stop, the train to enable him to alight). See also Griswold v. Chicago &c. R. Co., 64 Wis. 652; Coleman v. Georgia R. &c. Co., 84 Ga. 1; Keokuk Packet Co. v. Henry, 50 Ill. 268; Texas &c. R. Co. v. McGilvary (Tex. Civ. App.), 29 S. W. Rep. 67; Louisville &c. R. Co. v. Espenscheid, 17 Ind. App. 558; Andrews v. Ft. Worth &c. R. Co. (Tex. Civ. App.), 25 S. W. Rep. 1040 (no

off. rep.); Doss v. Missouri &c. R. Co., 59 Mo. 27; s. c. 31 Am. Rep. 371. There is a regrettable decision in Massachusetts, holding that a lady who had gone upon a railway car to conduct and assist her aunt, who was aged and infirm, and who was injured in getting off in consequence of the failure of the servants of the company to give the notice required by its rules before starting the train, could not recover; since, as she was not a passenger, they owed her no duty except that of refraining from injuring her through misfeasance or gross negligence: Lucas v. New Bedford &c. R. Co., 6 Gray (Mass.) 64; s. c. 6 Am. Dec. 406.

161 Dillingham v. Pierce (Tex. Civ. App.), 31 S. W. Rep. 203 (no off. rep.); Louisville &c. R. Co. v. Espenscheid, 17 Ind. App. 558; s. c. 57 N. E. Rep. 186; Missouri &c. R. Co. v. Miller, 8 Tex. Civ. App. 241; s. c. 27 S. W. Rep. 905; Griswold v. Chicago &c. R. Co., 64 Wis. 652; Bullock v. Houston &c. R. Co. (Tex. Civ. App.), 55 S. W. Rep. 184 (denying rehearing). It was so held where the usual time of stoppage of the train at the particular station was about three minutes: Louisville &c. R. Co. v. Espenscheid, 17 Ind. App. 558; s. c. 57 N. E. Rep. 186.

162 International &c. R. Co. v. Satterwhite, 15 Tex. Civ. App. 102; s. c. 38 S. W. Rep. 401.

time to alight in safety.163 If, on the other hand, the servants of the carrier, in the exercise of their duty, tender their assistance to the passenger,-e. g., a lady and child, and offer to care for her hand baggage, another person has no right, it has been held, to enter the car to assist them; and if he does so, his position is that of a trespasser, so that the carrier owes him no duty except to refrain from willfully or wantonly injuring him.164 But if the carrier's servants have no notice of his purpose to get off, he can not, in case he is hurt in getting off, in consequence of the starting of the carrier's vehicle, recover damages from the carrier, unless there are other circumstances of negligence on the part of the carrier's servants.165 So, it has been held that one who, having business to transact with a passenger on a fast mail train, goes on board the train at a station where it does not stop long enough to enable him to transact his business and get off,-has no right to notice, by signal or otherwise, that the train is about to start, so as to enable him to alight in safety, in the absence of evidence that the conductor or other proper agent of the company knows that he has got on board with the purpose of getting off, or that there is a usage or custom to give notice or make signals for the benefit of such visitors.166

§ 2659. Passenger Temporarily Absent from Carrier's Vehicle.As we have seen,107 it is not necessary that a person should be actually on the conveyance of the carrier before the relation of carrier and passenger begins. By parity of reasoning, it may be concluded that the relation may exist, so as to entitle the person to the protection due to a passenger, at a time when the person who has been a passenger on the conveyance is temporarily absent from it,168-as where

163 Missouri &c. R. Co. v. Miller, 15 Tex. Civ. App. 428; s. c. 39 S. W. Rep. 583.

164 Little Rock &c. R. Co. v. Lawton, 55 Ark. 428; s. c. 15 L. R. A. 434; 18 S. W. Rep. 543.

165 Yarnell v. Kansas City &c. R. Co.. 113 Mo. 570; s. c. 18 L. R. A. 599; 21 S. W. Rep. 1.

160 Coleman v. Georgia R. &c. Co., 84 Ga. 1; s. c. 40 Am. & Eng. Rail. Cas. 690; 10 S. E. Rep. 498.

167 Ante, §§ 2638, 2640.

168 Keokuk &c. Packet Co. v. True, 88 Ill. 608; Clussman v. Long Island R. Co., 9 Hun (N. Y.) 618; s. c. affirmed, 73 N. Y. 606; Conroy v. Chicago &c. R. Co., 96 Wis. 243; s. c. 38 L. R. A. 419; 70 N. W. Rep. 486; 8 Am. & Eng. Rail. Cas. (N. S.) 714; Alabama &c. R. Co. v. Coggins, 88

Fed. Rep. 455; s. c. 60 U. S. App. 140; Dodge v. Boston &c. S. Co., 148 Mass. 207; s. c. 2 L. R. A. 83; McKimble v. Boston &c. R. Co., 141 Mass. 463; Parsons v. New York &c. R. Co., 113 N. Y. 362; s. c. 3 L. R. A. 683; Dice v. Willamette Transp. &c. Co., 8 Or. 60; s. c. 34 Am. Rep. 575; Jeffersonville &c. R. Co. v. Riley, 39 Ind. 568; Atchison &c. R. Co. v. Shean, 18 Colo. 368; s. c. 20 L. R. A. 729; Missouri &c. R. Co. v. Overfield, 19 Tex. Civ. App. 440; s. c. 47 S. W. Rep. 684; 1 J. A. 57; 5 Am. Neg. Rep. 102; 12 Am. & Eng. Rail. Cas. (N. S.) 207. Contra, as seen in next paragraph: State v. Grand Trunk R. Co., 58 Me. 176: s. c. 4 Am. Rep. 258; De Kay v. Chicago &c. R. Co., 41 Minn. 178; s. c. 4 L. R. A. 632. In these cases a contrary view is