it has been held further that, where the landlord in consideration of the payment of the rent agrees to carry the tenant, his customers, and guests, in a passenger elevator, he is a carrier for hire.* It has

II. WHO ARE

[ý 1037] A. In General. It is difficult to lay down a comprehensive definition of the word "passenger," or to exhaust in a single statement all the possible circumstances under which the relation of carrier and passenger may exist; and, although a definition often given is that a passenger is one who travels in some public conveyance by virtue of a contract expressed or implied, with the carrier, as to the payment of fare or that which is accepted as

574, 22 P 266, 13 AmSR 175, 5 LRA 498.

D. C.-Munsey v. Webb, 37 App. 185.

Ill. Beidler v. Branshaw, 200 I11. 425, 65 NE 1086; Chicago Exch. Bldg. Co. v. Nelson, 197 Ill. 334, 64 NE 369; Hartford Deposit Co. v. Sollitt, 172 Ill. 222, 50 NE 178, 64 AmSR 35; Swan v. Chicago Boston Store, 191 Ill. A. 84; Anderson Art Co. v. Greenburg, 118 Ill. A. 220; Springer v. Schultz, 105 Ill. A. 544 [aff 205 Ill. 144, 68 NE 753]; Western Union Tel. Co. v. Woods, 88 Ill. A. 375; Field v. French, 80 I11. A. 78.

Ind.-Tippecanoe L. & T. Co. v. Jester, 180 Ind. 357, 101 NE 915, LRA 1915E 721 and note; Ohio Valley Trust Co. v. Wernke, 42 Ind. A. 326, 84 NE 999.

Md.-Belvedere Bldg. Co. v. Bryan, 103 Md. 514, 64 A 44.

Mo.-Cooper v. Century Realty Co., 224 Mo. 709, 123 SW 848; Goldsmith v. Holland Bldg. Co., 182 Mo. 597, 81 SW 1112; Hensler v. Stix, 113 Mo. A. 162, 88 SW 108.

Nebr.-Grimmel v. Boyd, 94 Nebr. 246. 142 NW 893.

Or.-Putnam V. Pacific Monthly Co., 68 Or. 36, 130 P 986, 136 P 835, 45 LRANS 338, LRA1915F 782, Ann Cas1915C 256.

Wash.-Davis v. Burke, 90 Wash. 495, 156 P 525; Atkeson v. Jackson, 72 Wash. 233, 130 P 102; Perrault v. Emporium Dept. Store Co., 71 Wash. 523. 128 P 1049.

Wis. Dibbert v. Metropolitan Inv. Co.. 158 Wis. 69, 147 NW 3, 148 NW 1095. LRA1915D 305, 312, AnnCas 1916E 924; Ferguson v. Truax, 132 Wis. 478, 110 NW 395, 111 NW 657, 112 NW 513, 14 LRANS 350, 13 Ann Cas 1092.

[a] Illustrations.—(1) One who owns and controls a building used for business purposes and equipped with passenger elevators is a carrier in the transportation of passengers using the elevators by his invitation. Munsey v. Webb, 37 App. (D. C.) 185. (2) A company engaged in operating and managing an office building, and in connection therewith operating a passenger elevator for the use of tenants and others, is a common carrier of passengers. Cooper v. Century Realty Co., 224 Mo. 709, 123 SW 848. (3) The owner of an elevator in an office building is to all intents a common carrier, and his liability to those rightfully using it is that of common carrier to passengers. Ohio Valley Trust Co. v. Wernke, 42 Ind. A. 326, 84 NE 999; Dibbert v. Metropolitan Inv. Co., 158 Wis. 69, 147 NW 3, 148 NW 1095, LRA1915D 305, 312, AnnCas1916E 924.

4. Kelly v. Lewis Inv. Co., 66 Or. 1, 133 P 826, AnnCas1915B 568.

a

"A landlord who in leasing building or a room therein agrees, in consideration of the payment of the rent reserved, to carry in a passenger elevator to and from various floors the lessee and also the persons who deal with and visit him, is not

PASSENGERS

in the strict sense of the term a common carrier of passengers, because he does not engage to transport the public generally, but only a small part thereof. He is, however, a carrier of passengers for hire; the rent paid by the tenant being the compensation for which the landlord undertakes safely carry him and his visitors by the elevator." Kelly v. Lewis Inv. Co., 66 Or. 1, 7, 133 P 826, AnnCas1915B 568.

to

5. Springer v. Ford, 189 Ill. 430, 59 NE 953, 82 AmSR 464, 52 LRA 930 [aff 88 111. A. 529]; Orcutt v. Century Bldg. Co., 201 Mo. 424, 99 SW 1062, 8 LRANS 929.

[a] Illustration.-The owner of a building in which a freight elevator is operated who permits an employee of his tenant to ride thereon in the discharge of his duties occupies the relation of common carrier of passengers toward such employee. Springer v. Ford, 189 Ill. 430, 59 NE 953, 82 AmSR 464, 52 LRA 930 [aff 88 Ill. A. 529].

[b] The fact that occupants of a block were accustomed to ride on a freight elevator is not evidence that the owner and operator of the elevator intended it to be a carrier of passengers. Hall v. Murdock, 114 Mich. 233, 72 NW 150.

6. Georgia, etc., R. Co. v. Tapley, 144 Ga. 453, 87 SE 473, LRA1916C 1020.

to

"Efforts to lay down a comprehensive definition of the word 'passenger,' or, in a single statement, exhaust all possible circumstances under which the relation of carrier and passenger may exist, have not proved very successful. ing facts under which that relation may begin, continue, and terminate, render such a complete definition, applicable to all cases, difficult if not impossible. It is easy to declare that where one has purchased

a

The vary

railroad-ticket entitling him to transportation upon a train, and has at the proper time taken his seat in the proper car for that purpose, he is a passenger; but he may have entered the train without a ticket, yet with the means and intention to pay for transportation, or he may be in the act of boarding the train at a proper place for that purpose, and with a ticket or the necessary means of transportation, when injured; or he may have procured a ticket and be waiting in a waiting-room apart by the company for that purpose, while the train is being made ready for departure. These or other variations in circumstances enter into the question of whether or not the relation has begun at a given time." Georgia, etc., R. Co. v. Tapley, 144 Ga. 453, 454, 87 SE 473, LRA 1916C 1020.

set

may

1916C 1020; Travelers' Ins. Co. v. Austin, 116 Ga. 264, 42 SE 522, 94 AmSR 125, 59 LRA 107.

Ill. Chicago, etc., R. Co. v. Moran, 117 Ill. A. 42; De la Vergne Refrigerating Mach. Co. v. McLeroth, 60 Ill. A. 529.

Iowa. Weber v. Chicago, etc., R. Co., 151 NW 852.

N. C.-McNeill v. Durham, etc., R. Co., 135 N. C. 682, 47 SE 765, 67 LRA 227.

Pa.-Bricker v. Philadelphia, etc.. R. Co., 132 Pa. 1, 18 A 983, 19 AmSR 585 [quot Stalcup v. Louisville, etc., R. Co., 16 Ind. A. 584, 45 NE 802. 803]; Pennsylvania R. Co. v. Price, 96 Pa. 256 [quot Rowdin v. Pennsylvania R. Co., 208 Pa. 623, 628, 57 A 1125].

[a] Other definitions.-(1) "A person who undertakes with consent of the carrier to travel in the conveyance provided by the latter, otherwise than in the service of the carrier as such." Shearman & R. on Negl. 305 § 262 [quot Higley v. Gilmer, 3 Mont. 90, 99, 35 AmR 450; and cit Alabama City, etc., R. Co. v. Bates, 149 Ala. 487, 490, 43 S 98]. (2) "One who undertakes, with the carrier's consent, to travel in the carriage of the latter, otherwise than in its service." Indianapolis Tract., etc., Co. v. Lawson, 143 Fed. 834, 837, 74 CCA 630, 5 LRANS 721, 6 AnnCas 666. (3) "A person whom a railway company, in the performance of its duty as a common carrier, has contracted to carry from one place to another, for a valuable consideration, and whom the company, in the performance of the contract, has received at its station, or in its car, or under its care." Simmon's v. Oregon R. Co., 41 Or. 151, 155, 69 P 440, 1022. To same effect Stalcup v. Louisville, etc., R. Co., 16 Ind. A. 584, 45 NE 802. (4) "One who enters the vehicle of the carrier with the intention of paying, in money, the usual fare for his transportation, or who is supplied with a ticket or pass entitling him to ride to a given point." Powell v. St. Louis, etc., R. Co., 229 Mo. 246, 280, 129 SW 963.

[b] "The general rule is that any person whom a common carrier has contracted, expressly or impliedly, to convey from one place to another, in consideration of the payment of fare, or its equivalent, and who, in the course of the performance of such contract has been received by the carrier under its care, either upon the means of conveyance, or at the point of departure of that conveyance, is a passenger." Moore Carriers 541-543 [quot Blair v. Philadelphia Rapid Transit Co., 36 Pa. Super. 319, 322].

as

Persons riding gratuitously passengers see infra §§ 1055, 1056. 8. Georgia, etc., R. Co. v. Tapley, 144 Ga. 453, 87 SE 473, LRA1916C 1020.

Presumption as to the relation of carrier and passenger generally see infra § 1436.

the car is attached; but this does not apply to one riding in a private car which is moved under a contract by which the employees of the railway company become special employees and act under the orders and directions of the person owning the car.10 [1038] B. Necessity of Contract. The relation of carrier and passenger is dependent on the existence of a contract of carriage, express or implied, between the carrier and the passenger, made either by themselves11 or by their respective agents.12 It is the existence of such a contract which distinguishes a passenger from a licensee,13 a trespasser,' an employee of the carrier,15 an employee of a sleep

9. Lackawanna, etc., R. Co. V. Chenewith, 52 Pa. 382, 91 AmD 168. [a] Illustration.-One is a passenger who, as the owner of a private car, arranges to have his car attached to a regular passenger train, stipulating that he will tend the brakes on his own car; at least he is a passenger as far as his right of recovery for personal injury occasioned by negligence of the company is concerned. Lackawanna, etc., R. Co. v. Chenewith, 52 Pa. 382, 91 AmD 168.

10. Clough v. Grand Trunk Western R. Co., 155 Fed. 81, 85 CCA 1, 11 LRANS 446. See also infra § 1053. 11. U. S.-Farley V. Cincinnati, | etc., R. Co., 108 Fed. 14, 47 CCA 156. Ala.-Waldorp v. Nashville, etc., R. Co., 183 Ala. 226, 62 S 769; Southern R. Co. v. Bunnell, 138 Ala. 247, 36 S 380; Orr v. Boockholdt, 10 Ala. A. 331, 65 S 430.

Conn.-Gardner V. New Haven, etc., Co., 51 Conn. 143, 50 AmR 12.

Ill.-Gemmill v. Illinois Cent. R. Co., 186 Ill. A. 124; Spannagle v. Chicago, etc., R. Co., 31 Ill. A. 460. Ind. Mishler v. Chicago, etc., R. Co.. (A.) 111 NE 460.

Me.- -Cuozzo v. Maine Cent. R. Co., 112 Me. 560, 91 A 1006; Hoar v. Maine Cent. R. Co., 70 Me. 65, 35 AmR 299.

V.

Md.-Baltimore, etc., R. Co. Breinig, 25 Md. 378, 90 AmD 49 and note.

Mo.. -O'Donnell V. Kansas City, etc., R. Co., 197 Mo. 110, 95 SW 196, 114 AmSR 753; Schaefer v. St. Louis, etc., R. Co., 128 Mo. 64, 30 SW 331; Schepers v. Union Depot R. Co., 126 Mo. 665. 29 SW 712; Canaday v. United R. Cos., 134 Mo. A. 282, 114 SW 88; McCarty v. St. Louis, etc., St. R. Co., 105 Mo. A. 596, 80 SW 7; O'Mara v. St. Louis Transit Co., 102 Mo. A. 202, 76 SW 680.

Mont-Higley v. Gilmer, 3 Mont. 90, 35 Am R 450.

Nebr.-Fremont, etc., R. Co. V. French, 48 Nebr. 638, 67 NW 472.

Pa.-Pennsylvania R. Co. v. Price,

96 Pa. 256; Blair v. Philadelphia Rapid Transit Co., 36 Pa. Super. 319. Utah.-Schuyler v. Southern Pac. Co., 37 Utah 581, 109 P 458 [reh den 37 Utah 612, 109 P 1025].

[a] The essential ingredients of a contract of carriage on a street car are that the person, either by words or conduct, must signify his intention to take passage and that the car man must assent, by words or conduct, to his becoming a passenger. O'Mara V. St. Louis Transit Co., 102 Mo. A. 202, 76 SW 680.

[b] It is not necessary that there be an express contract in order to constitute the relation of carrier and passenger, nor that there should be a consummated contract. The contract may be implied from slight circumstances, and it need not be actually consummated by the payment of fare or by entry into the car or boat of the carrier, but the matter depends largely on the intention of the person at the time he enters the car

or

boat. North Chicago St. R. Co. v. Williams, 140 Ill. 275, 29 NE 672 [aff 40 Ill. A. 590]; Kane v. Cicero, etc.. R. Co., 100 Ill. A. 181; Schuyler V. Southern Pac. Co., 37 Utah 581, 109 P 458 [reh den 37 Utah 612, 109 P 10251.

14

[c] Distinguished from stranger. -The obligation of a company for the safe transportation of a passenger is one arising from contract, imposing duties growing out of the relation between the parties, involving trust and confidence, while toward a stranger no such relation exists, each party being in the lawful pursuit of his own business or the lawful exercise of his own rights. Baltimore, etc., R. Co. v. Breinig, 25 Md. 378, 90 AmD 49.

[d] Telephone conversations between a person and a railroad station agent as to furnishing transportation for a number of men, without stating the number, the kind of transportation to be provided, and whether by regular fare, mileage books, or passes, are too indefinite to constitute a contract. Cuozzo V. Maine Cent. R. Co., 112 Me. 560, 91 A 1006.

12. Orr v. Boockholdt, 10 Ala. A. 331, 65 S 430; Russ v. The War Eagle, 14 Iowa 363; Gulf, etc., R. Co. v. Wilson, 79 Tex. 371, 15 SW 280, 23 Am SR 345, 11 LRA 486.

[a] Guests at funeral.-Where a husband whose wife had died contracted with defendant for carriages and drivers to carry those in attendance at the funeral of the wife to a cemetery, persons who by the express or implied invitation of the husband occupied the carriages for the purpose were passengers, and defendant owed to them the duty of using reasonable care in the selection and furnishing of skillful and careful drivers. Orr v. Boockholdt, 10 Ala. A. 331, 65 S 430.

Tract.,

13. U. S.-Indianapolis etc., Co. v. Lawson, 143 Fed. 834, 74 CCA 630, 5 LRANS 721, 6 AnnCas 666.

Il-Lake Shore, etc., R. Co. V. Bodemer, 139 Ill. 596, 29 NE 692, 32 AmSR 218 [aff 33 Ill. A. 479].

Ky. Shelby v. Cincinnati, etc., R. Co., 85 Ky. 224, 3 SW 157, 8 KyL 928.

Md.-Benson V. Baltimore Tract. Co., 77 Md. 535, 26 A 973, 39 AmSR 436, 20 LRA 714.

Eng. Holmes v. North Eastern R. Co., L. R. 4 Exch. 254.

B. C.-Nightingale v. Union Colliery Co., 9 B. C. 453 [app dism 35 Can. S. C. 65].

Ont.-Blackmore v. Toronto St. R. Co., 38 U. C. Q. B. 172.

14. Indianapolis Tract., etc., Co. v. Lawson, 143 Fed. 834, 74 CCA 630, 5 LRANS 721, 6 AnnCas 666; Brown v. Missouri, etc., R. Co., 64 Mo. 536; Schurr v. Houston, 10 NYSt 262; Lygo v. Newbold, 9 Exch. 302, 156 Reprint 129.

[a] A tramp is not a passenger. Chicago, etc., R. Co. v. Michie, 83 I11. 427; Higley v. Gilmer, 3 Mont. 90, 35 AmR 450.

[b] Seeking employment.-A workman boarding a laborers' train without permission for the purpose of securing employment is not a passenger. Schifalacqua V. Atlantic City R. Co., 249 Pa. 602, 95 A 260.

15. Indianapolis Tract., etc., Co. v. Lawson, 143 Fed. 834, 74 CCA 630, 5 LRANS 721, 6 AnnCas 666; Yeomans V. Contra Costa Steam Nav. Co., 44 Cal. 71 (where the facts showed that plaintiff was the barkeeper on defendant's boat, under a

contract for a valuable consideration. having the privilege of running the bar, the use of a stateroom, and such meals as he might desire on the boat, receiving to himself all the profits accruing from the sales of liquors, etc., at the bar; that plaintiff was about to enter the cars, intending to make his usual trip over defendant's line; that the boiler of the engine in charge of defendant's engineer exploded, proximately causing personal injuries to plaintiff, and the contract between plaintiff and the navigation company was properly interpreted by the supreme court to have created the relation of passenger and carrier between the parties, so that plaintiff could not in any sense have been considered an employee or a member of defendant's establishment, in so far as his right to recover for his injuries was concerned). See also infra § 1054.

16. Hughson V. Richmond, etc., R. Co., 2 App. (D. C.) 98. See also infra 1053.

17. Gradin v. St. Paul, etc., R. Co., 30 Minn. 217, 14 NW 881.

18. Donovan v. Hartford St. R. Co., 65 Conn. 201, 32 A 350, 29 LRA 297.

19. U. S.-Chicago, etc., R. Co. v. Thurlow, 178 Fed. 894, 102 CCA 128, 30 LRANS 571; St. Louis Southwestern R. Co. v. Wainwright, 162 Fed. 624, 82 CCA 16.

Ala. Alabama City, etc., R. Co. v. Bates, 149 Ala. 487, 43 S 98. Cal.-Walther V. Southern Pac. Co., 159 Cal. 769, 116 P 51, 37 LRA NS 235.

Ill-Chicago, etc., R. Co. v. Jennings, 190 I11. 478, 60 NE 818, 54 LRA 827 [rev 89 Ill. A. 335]; Illinois Cent. R. Co. v. O'Keefe, 168 Ill. 115, 48 NE 294, 61 AmSR 68 and note, 39 LRA 148 [rev 63 Ill. A. 102]; Davidson V. Illinois Cent. R. Co., 164 Ill. A. 47; Deatrick v. Lake Erie, etc., R. Co., 164 Ill. A. 34; Devine v. Chicago City R. Co., 162 Ill. A. 243; Strong v. North Chicago St. R. Co., 116 III. A. 246; O'Donnell v. Chicago, etc., R. Co., 106 Ill. A. 287; Chicago, etc., R. Co. v. Weeks, 99 Ill. A. 518 [aff 198 Ill. 551, 64 NE 1039]; Pennington v. Illinois Cent. R. Co., 69 Ill. A. 628; Spannagle v. Chicago, etc., R. Co., 31 III. A. 460.

Ind.-Pere Marquette R. Co. V. Strange, 171 Ind. 160, 164, 84 NE 819, 85 NE 1026, 20 LRANS 1041 [cit Cyc]; Citizens' St. R. Co. V. Jolly, 161 Ind. 80, 67 NE 935.

Iowa. Allender V. Chicago, etc., R. Co., 37 Iowa 264.

Mass.-Hogner v. Boston El. R. Co., 198 Mass. 260, 84 NE 464, 15 LRANS 960; Webster v. Fitchburg R. Co., 161 Mass. 298, 37 NE 165, 24 LRA 521 and note. Minn.-Barnett V. Minneapolis, etc., R. Co., 123 Minn. 153, 143 NW 263, 48 LRANS 262.

Mo.-Lindsay v. St. Louis, etc., R. Co., (A.) 178 SW 276.

Nebr.-Hicks v. Union Pac. R. Co., 76 Nebr. 496, 107 NW 798.

N. J.-Atlantic City v. Brown, 71 N. J. L. 81, 58 A 110 [aff 72 N. J. L. 207, 62 A 428].

N. Y.-Buffett v. Troy, etc., R. Co., 40 N. Y. 168 [aff 36 Barb. 420].

Or. Radley v. Columbia R. Co., 44 Or. 332, 75 P 212, 1 AnnCas 447.

and presents himself at the proper place and in a proper manner to be transported,20 but not where he does not present himself in a proper way to become a passenger.21

Implied from circumstances. It is not required, however, that there be any formal act of delivery of the passenger's person into the care of the carrier, or of acceptance by the carrier of one who presents himself for transportation; but the existence of the relation is commonly to be implied from the attendant circumstances; and the rule is that these circumstances, either by the purchase of a ticket or otherwise, must be such as will warrant an implication that he intends to become a passenger

Pa-Geiger v. Pittsburgh R. Cos.. | 247 Pa. 287, 93 A 342.

S. C.-Creech v. Charleston, etc., R. Co., 66 S. C. 528, 45 SE 86.

Tex.-St. Louis Southwestern R. Co. v. Franklin, (Civ. A.) 44 SW 701. Utah. Schuyler v. Southern Pac. Co., 37 Utah 581, 109 P 458 [reh den 37 Utah 612, 109 P 1025].

"The relation of carrier and passenger commences when a person, with the good faith intention of taking passage, with the consent of the carrier, express or implied, assumes a situation to avail himself of the facilities for transportation which the carrier offers." Pere Marquette R. Co. v. Strange, 171 Ind. 160, 164, 84 NE 819, 85 NE 1026, 20 LRANS 1041 [eit Cycl.

[a] The test (1) in determining who are passengers, is whether the person desiring passage in good faith offers himself for the purpose of being carried as a passenger, and whether he is as such accepted and received by the carrier who undertakes to transport him. Schuyler v. Southern Pac. Co., 37 Utah 581, 109 P 458 [reh den 37 Utah 612, 109 P 1025]. To same effect Lindsay v. St. Louis, etc., R. Co., (Mo. A.) 178 SW 276. (2) Where the existence of the relation is in controversy, the question is whether the person has presented himself in readiness to be carried under such circumstances, in reference to time, place, manner, and condition, that the company must be deemed to have accepted him as a passenger. Hogner v. Boston El. R Co., 198 Mass. 260, 84 NE 464, 15 LRA NS 960. (3) One who has not presented himself at any place provided by a railroad company for the reception of passengers, who has not indicated to the company's employees that he intends to become a passenger, and who has not committed himself to the care or control of the company cannot be regarded as a passenger being transported and under the protection of the statutes of the state. Illinois Cent. R. Co. v. McMillion, 129 Ill. A. 37; Illinois Cent. R. Co. v. McMillion, 129 Ill. A. 27; Hicks V. Union Pac. R. Co., 76 Nebr. 496, 107 NW 798.

[b] Terms of carriage. On whatever terms a common carrier of persons voluntarily receives and carries a person, the relation of common carrier and passenger exists. Walther v. Southern Pac. Co., 159 Cal. 769, 116 P 51, 37 LRANS 235.

runs

а

[c] Riding to station in company's stage. Where a railroad company stage for the purpose of carrying passengers to and from its depot, a person who is riding in the stage to the station for the purpose of taking passage on a train is a passenger and is entitled to recover damages for an injury received through the negligence of the stage driver, although he has not bought a ticket or made any declaration of his intention to do so. Buffett v. Troy, etc.. R. Co.. 40 N. Y. 168 [aff 36 Barb. 420].

[d] One who solicits the services of a licensed hackman is a passenger, within the meaning of an ordinance

.26

106 NW 1041, 4 LRANS 254, 9 Ann Cas 1096 and note.

Necessity of acceptance by carrier see infra § 1045. R., etc.,

20. Ala.-Birmingham Co. v. Wise. 149 Ala. 492, 42 S 821. Ga.-Central R., etc., Co. v. Perry, 58 Ga. 461.

Ill-Wabash, etc., R. Co. v. Rector, 104 III. 296; Hannibal, etc., R. Co. v. Martin, 11 Ill. A. 386 [aff 111 I11. 219].

Mass.-Dodge v. Boston, etc.. SS. Co., 148 Mass. 207, 19 NE 373, 12 Am SR 541, 2 LRA 83; Warren v. Fitchburg R. Co., 8 Allen 227, 85 AmD 700. Minn.-Smith v. St. Paul City R. Co., 32 Minn. 1, 18 NW 827. N. Y.-Davis v. Cayuga, etc., R. Co., 10 How Pr 330.

21. Southern R. Co. v. Smith, 86 Fed. 292, 30 CCA 58, 40 LRA 746; Chicago, etc., R. Co. v. Weeks, 99 Ill. A. 518 [aff 198 Ill. 551, 64 NE 1039]; Youngerman v. New York, etc., R. Co., 223 Mass. 29, 111 NE 607.

[a] Illustrations.—(1) One who is crossing the track with a railroad ticket in his pocket to board a train, but who has not been to the depot and has not notified the officers or agents of the company that he is a prospective passenger, is not a person to whom the company owes extraordinary care and diligence as a passenger. Southern R. Co. v. Smith, 86 Fed. 292, 30 CCA 58, 40 LRA 746. (2) A person who is intending to take passage on a railroad train, and who is proceeding, without precaution for his safety, toward a point directly in front of an incoming train, does not present himself in a proper way to become a passenger. Chicago, etc., R. Co. v. Weeks, 99 Ill. A. 518 [aff 198 Ill. 551, 64 NE 1039]. 22. U. S.-St. Louis Southwestern R. Co. v. Wainwright, 152 Fed. 624, 82 CCA 16.

Ill. Chudnovski v. Eckels, 232 Ill. 312, 83 NE 846; Hickey v. Chicago City R. Co., 148 Ill. A. 197; Strong v. North Chicago St. R. Co., 116 III. A. 246; Spannagle v. Chicago, etc., R. Co., 31 III. A. 460.

Iowa.-Dieckmann v. Chicago, etc., R. Co., 145 Iowa 250, 121 NW 676, 139 AmSR 420, 31 LRANS 338; Dieckmann v. Chicago, etc., R. Co., 105 NW 526.

Mass.-Lauchtamacher V. Boston El. R. Co., 214 Mass. 103, 100 NE 1068; Hogner v. Boston El. R. Co., 198 Mass. 260, 84 NE 464, 15 LRANS 960 and note; Webster v. Fitchburg R. Co., 161 Mass. 298, 37 NE 165, 24 LRA 521 and note.

Mich. Buman v. Michigan Cent. R. Co., 168 Mich. 651, 134 NW 972, AnnCas1913D 107 (relation of passenger held not to have arisen). Minn.-Barnett V. Minneapolis, etc., R. Co.. 123 Minn. 153, 143 NW 263, 48 LRANS 262.

Mo.-Nolan v. Metropolitan St. R. Co., 250 Mo. 602, 157 SW 637. Mont.-Higley v. Gilmer, 3 Mont. 90, 35 AmR 450. Nebr.-Fremont,

etc., R. Co. V.

Or. Zurcher v. Portland R., etc., Co., 64 Or. 217, 129 P 126. Tex.-Galveston, etc., R. Co. V.

Fink, 44 Tex. Civ. A. 544, 99 SW 204. W. Va.-Kidwell V. Chesapeake, etc., R. Co., 71 W. Va. 664, 77 SE 285, 43 LRANS 999.

[a] A, manifestation by some outward act of an intention to become a passenger has been held not to be essential. Warner v. Baltimore, etc., R. Co., 168 U. S. 339, 18 SCt 68, 42 L. ed. 491.

[b] In the case of a street railroad, the relation of carrier and passenger is seldom created by express contract, and whether it has begun is generally to be shown by the circumstances; but it must at least appear that the passenger has offered himself and that the offer has been accepted, and, while the carrier ought to consent where there is no reasonable objection, it does not necessarily follow that it has consented or will consent in any particular case, for it may decline to accept an offered passenger without a good reason, and in such case one cannot become a passenger by forcing his way on the car against the carrier's will, but his remedy is for damages for the unwarrantable exclusion. Hogner v. Boston El. R. Co., 198 Mass. 260, 84 NE 464, 15 LRANS 960 and note. 23. See infra § 1045 24. U. S.-Southern R. Co. V. Smith, 86 Fed. 292, 30 CCA 58, 40 LRA 746.

Ill-Chicago, etc.. R. Co. V. Jennings, 190 Ill. 478, 60 NE 817; Chicago, etc., R. Co. v. Stewart, 77 Ill. A. 66; Spannagle v. Chicago, etc., R. Co., 31 Ill. A. 460.

Ind. Indiana Cent. R. Co. v. Hudelson, 13 Ind. 325, 74 AmD 254.

Mass.-Jones v. Boston, etc., R., 163 Mass. 245, 39 NE 1019; Webster v. Fitchburg R. Co., 161 Mass. 298, 37 NE 165, 24 LRA 521; June v. Boston, etc.; R. Co., 153 Mass. 79, 26 NE 238. Miss.-Georgia Pac. R. Co. v. Robinson, 68 Miss. 643, 10 S 60. Mo.-Schepers v. Union Depot R. Co., 126 Mo. 665, 29 SW 712.

25. Gemmill V. Illinois Cent. R. Co., 186 Ill. A. 124; June v. Boston, etc., R. Co., 153 Mass. 79, 26 ME 238; Tingley v. Long Island R. Co., 109 App. Div. 793, 96 NYS 865, 17 NYAnnCas 440.

26. Du Bose v. Atlantic Coast Line R. Co., 81 S. C. 271, 62 SE 255.

[a] Leaving premises after purchase of ticket. It is not the law, without qualification, that, when one becomes a passenger by the purchase of a ticket, he remains a passenger until he reaches his destination; but, if he leaves the station premises after his purchase, he ceases to have the full rights of a passenger during his absence and until he again presents himself for transportation at the proper time and place, according to the reasonable rules of the carrier. Du Bose V. Atlantic Coast Line R. Co., 81 S. C. 271, 62 SE 255.

27. Jaquette v. Capital Tract. Co.,

boarding it, but without the conductor's knowledge. 28

[§ 1040] b. Going to or Awaiting Train or Car. Actual entry into the carrier's vehicle of carriage is not necessary to create the relation of carrier and passenger, and one may become a passenger before entering such vehicle29 or before transportation has

34 App. (D. C.) 41, 25 LRANS 407.

28. Welsh v. Concord, etc., R. Co., 223 Mass. 184, 111 NE 693; Duchemin v. Boston El. R. Co., 186 Mass. 353, 71 NE 780, 104 AmSR 580, 66 LRA 980, 1 AnnCas 603; Dunn v. Puget Sound Tract, etc., Co., 89 Wash. 36, 153 P 1059; Foster v. Seattle Electric Co., 35 Wash. 177, 76 P 995. [a] Illustration.-One intending to board a street car who approaches it from the rear, and is in a position where the conductor, in looking out for intending passengers, will ordinarily have seen her, and who is not seen by the conductor who does look out toward the rear before giving the signal to start, is not a passenger. Foster V. Seattle Electric Co., 35 Wash. 177, 76 P 995.

not

29. Del.-MacLeat V. Philadelphia, etc., R. Co., 22 Del. 513, 69 A 744.

Iowa. Allender v. Chicago, etc., R. Co., 37 Iowa 264.

Me.-Rogers v. Kennebec Steamboat Co., 36 Me. 261, 29 A 1069, 25 LRA 491.

Md.-Baltimore, State, 63 Md. 135.

Mass.-Warren

etc., R. Co.

V.

V. Fitchburg R. Co., 8 Allen 227, 85 AmD 700. Mo.-Murphy v. St. Louis, etc., R. Co., 43 Mo. A. 342.

N. Y.-Gordon v. Grand St., etc., R. Co., 40 Barb. 546.

Va. Norfolk, etc., R. Co. v. Galliher, 89 Va. 639, 16 SE 935.

30. Rogers V. Kennebec Steamboat Co., 86 Me. 261, 29 A 1069, 25 LRA 491.

31. U. S.-Kansas City Southern R. Co. v. Willsie, 224 Fed. 908, 910. 140 CCA 352 [cit Cyc]; Riley v. Vallejo Ferry Co.. 173 Fed. 331; Chicago, etc., R. Co. v. Stepp, 164 Fed. 785, 90 CCA 431, 22 LRANS 350 [aff 151 Fed. 908].

Ala.-Nashville, etc., R. Co. V. Crosby, 70 S 7; Widener V. Alabama Great Southern R. Co., 69 S 558.

Conn.-Baril v. New York, etc., R. Co., 90 Conn. 74, 96 A 164; Donovan v. Hartford St. R. Co., 65 Conn. 201, 32 A 350, 29 LRA 297.

D. C.-Dixon v. Great Falls, etc., R. Co., 38 App. 591, AnnCas1913C 571. Ga.-Smith v. Seaboard Air Line R. Co., 10 Ga. A. 227, 73 SE 523.

Ill-Lake Shore, etc., R. Co. v. Ward, 135 Ill. 511, 26 NE 520; Sorensen v. Illinois Cent. R. Co., 155 Ill. A. 606.

Ind.-Jeffersonville, etc., R. Co. v. Riley, 39 Ind. 568; Evansville R. Co. v. Miller, (A.) 111 NE 1031.

Iowa.-Dieckmann v. Chicago, etc., R. Co., 145 Iowa 250, 121 NW 676, 139 AmSR 420, 31 LRANS 338; Dieckmann v. Chicago, etc., R. Co., 105 NW 526.

V.

Kan.-Atchison, etc., R. Co. Holloway, 71 Kan. 1, 80 P 31, 114 AmSR 462.

V.

Ky.-Louisville, etc., R. Co. Daugherty, 108 SW 336, 337, 32 KyL 1392, 15 LRANS 740 [quot Cyc].

La. Strain v. Vicksburg, etc.. R. Co., 123 La. 407, 49 S 2.

Md.-Philadelphia, etc., R. Co. v. Green, 110 Md. 32, 71 A 986.

Mass.-Horgan v. Boston El. R. Co., 208 Mass. 287, 94 NE 386.

Minn. Barnett v. Minneapolis, etc., R. Co., 123 Minn. 153, 143 NW 263, 48 LRANS 262.

Miss. Metcalf v. Yazoo, etc., R. Co., 97 Miss. 455, 52 S 355, 28 LRANS 311.

Mo.-Barth v. Kansas City El. R. Co., 142 Mo. 535, 44 SW 778; Choate v. Missouri Pac. R. Co., 67 Mo. A. 105.

N. J.-Exton v. Central R. Co., 63 N. J. L. 356, 46 A 1099, 56 LRA 508.

N. Y.-Wells v. New York Cent.. etc., R. Co., 25 App. Div. 365, 49 NYS 510; Gordon v. Grand St., etc., R. Co.,

40 Barb. 546.

N. C.-Leggett v. Atlantic Coast Line R. Co., 168 N. C. 366, 84 SE 357; Hansley v. Jamesville, etc., R. Co., 115 N. C. 602, 20 SE 528, 44 AmSR 474, 32 LRA 543.

Pa.-Powell v. Philadelphia, etc., R. Co., 220 Pa. 638, 70 A 268, 20 LRANS 1019; Rhoads v. Cornwall, etc., R. Co., 48 Pa. Super. 310.

Porto Rico.-Wood v. Valdes, 4 Porto Rico Fed. 165.

S. C.-Mitchell v. Augusta, etc., R. Co., 87 S. C. 375, 69 SE 664, 31 LRA NS 442.

Tex.-Texas Midland R. Co. V. Griggs, (Civ. A.) 106 SW 411.

Va.-Norfolk, etc., R. Co. v. Galliher, 89 Va. 639, 16 SE 935.

W. Va.-Kidwell V. Chesapeake, etc., R. Co., 71 W. Va. 664, 77 SE 285, 43 LRANS 999; Barker v. Ohio River R. Co., 51 W. Va. 423, 41 SE 148. 90 AmSR 808.

Wis. Tarczek v. Chicago, etc., R. Co., 162 Wis. 438, 156 NW 473; Lugner V. Milwaukee Electric R. etc., Co., 146 Wis. 175, 131 NW 342.

[a] One becomes a passenger: (1) Where he has purchased a ticket for his transportation and is at the station awaiting the arrival of his train. Warner v. Baltimore, etc., R. Co., 168 U. S. 339, 18 SCt 68, 42 L. ed. 491; Nashville, etc., R. Co. V. Crosby, (Ala.) 70 S 7; Sorenson v. Illinois Cent. R. Co., 155 Ill. A. 606; Chicago Terminal Transfer R. Co. v. Young, 118 Ill. A. 226; Kiefner v. Pittsburg, etc., R. Co., 223 Pa. 50, 72 A 253; St. Louis Southwestern R. Co. v. Padgett, (Tex. Civ. A.) 181 SW 718. (2) Where he holds the return coupon of a ticket purchased from a railroad company and goes to the depot to take a train. Chicago. etc., R. Co. v. Walker, 217 Ill. 605, 75 NE 520. (3) Where he enters the office or waiting room at a depot and informs the depot agent of his desire to become a passenger, and is directed as to the manner in which he should get on a caboose car. Allender v. Chicago, etc., R. Co., 37 Iowa 264. (4) Where he enters the subway station of an elevated railway company and pays his fare with the intention of becoming a passenger. Horgan v. Boston El. R. Co., 208 Mass. 287, 94 NE 386.

(holding that, in view of St. [1896] c 516, creating the Boston Terminal Company and requiring railroads to use its union station, one who has purchased a ticket and expects to board a train leaving the union station is not a passenger until about to step on the train).

[e] An intending passenger may lawfully use the rooms (1) in the depot for any necessary or convenient purpose in furtherance of his intention to become a passenger; and an intending passenger who avails himself of a waiting room within a reasonable time before the arrival of the train is a passenger, although his purpose is merely to place his hand baggage in the waiting room as a matter of convenience to himself and in furtherance of his ultimate object, and although he has a purpose to leave again before the arrival of the train on a matter of convenience, pleasure, or business. Metcalf v. Yazoo, etc., R. Co., 97 Miss. 455, 52 S 355, 28 LRANS 311 and note (holding that, where a person intending to take passage on a train went to the depot fifteen minutes before the arrival of the train to deposit his satchel in the waiting room, his resort to the depot was for a lawful purpose and in furtherance of his intention to become a passenger, and that the relation of carrier and passenger was created, although he intended to leave the depot to see a person on business). (2) A person with a bona fide intention to take passage on a train, and going to the carrier's station a reasonable time before train time, is a passenger from the moment that he enters the carrier's premises. Central of Georgia R. Co. v. Bell, 187 Ala. 541, 65 S 835.

[f] One on a railroad station platform regarding his baggage is not a mere licensee, when injured by falling through a hole in the platform. Cleveland, etc., R. Co. v. Jones, 51 Ind. A. 245, 99 NE 503.

[g] At station on amusement grounds.-The duty of a railroad company owning amusement grounds on which a station building and platform are located, and where passengers are invited by the company to assemble for the purpose of boarding its cars, is that of a common carrier, charged with the highest care for the safety of its passengers; and persons assembling in the building, on the grounds, or on the

[c] On elevated platform.-(1) Where a person boards a shuttle car on a city street, which car connects with an elevated railroad, and is carried to a platform station erected between two elevated tracks, and there waits for the elevated train on which she intends to continue the journey, such person is a passenger. Lake St. El. R. Co. v. Burgess, 200 111. 628, 66 NE 215 [aff 99 Ill. A. 499]. (2) A person on the platform of an elevated railroad station with the knowledge of the company that he intends to take a train, is a passenger when approaching the train to board it. Lapin v. Northwestern El. R. Co., 162 Ill. A. 296.

company for receiving passengers, are at the company's station and are passengers within the meaning of the law. Dixon v. Great Falls, etc.. R. Co., 38 App. (D. C.) 598; Dixon v. Great Falls, etc., R. Co., 38 App. (D. C.) 591.

[h] At flag station.-Where a person at a flag station does not make any of the customary signals to attract the attention of the motorman of an approaching car to the fact that he is waiting for carriage and desires to get on board, it is insufficient to show that he is at such station for the purpose of offering himself as a passenger. Alabama City, etc., R. Co. v. Bessiere, 190 Ala. 59. 66 S 805.

32. Baril v. New York, etc., R. Co., 90 Conn. 74, 96 A 164; Merrill v. Michigan Cent. R. Co., 158 Ill. A. 38; Metcalf v. Yazoo, etc.. R. Co., 97 Miss. 455, 52 S 355, 28 LRANS 311; Mitchell v. Augusta, etc., R. Co., 87 S. C. 375, 69 SE 664, 31 LRANS 442. [a] Illustration.-Where a railroad has opened its waiting room in a depot for the reception of passengers, and a person intending to take

passage on a train shortly to arrive resorts to the depot for that purpose, the relation of carrier and passenger arises as a matter of law. Metcalf

v. Yazoo, etc., R. Co., 97 Miss. 455, 52 S 355, 28 LRANS 311.

33. Chicago, etc., R. Co. v. Walker, 217 Ill. 605, 75 NE 520 [aff 118 Ill. A. 397].

34. U. S.-Atlantic City R. Co. v. Clegg, 183 Fed. 216, 105 CCA 478.

Ark. St. Louis, etc., R. Co. V. Hutchinson, 101 Ark. 424, 142 SW

527.

Ill-Illinois Cent. R. Co. v. Treat, 75 Ill. A. 327 [aff 179 Ill. 576, 54 NE 290].

Ind.-Pere Marquette R. Co. V. Strange, 171 Ind. 160, 164, 84 NE 819, 85 NE 1026, 20 LRANS 1041 [cit Cyc]; Indianapolis Southern R. Co. v. Wall, 54 Ind. A. 43, 101 NE 680.

Ky. Illinois Cent. R. Co. v. Proctor, 122 Ky. 92, 89 SW 714, 28 KyL 598.

Md.-Baltimore, etc., R. Co. V. State, 63 Md. 135.

Mass.-Warren V. Fitchburg Co., 8 Allen 227, 85 AmD 700.

R.

Mo.-Albin v. Chicago, etc., R. Co., 103 Mo. A. 308, 77 SW 153.

N. C.-Roberts v. Atlantic Coast Line R. Co., 155 N. C. 79, 70 SE 1080; Pineus v. Atlantic Coast Line R. Co., 140 N. C. 450, 53 SE 297, 111 AmSR 856.

[a] One who has purchased a ticket and is passing from the office where the purchase was made to the train to take the seat given to him as a passenger in the cars on the premises belonging to the company, connected with the railroad, and under the direction of the company's agent, is a passenger and entitled to the rights of a passenger while so passing. Chicago, etc., R. Co. v. Weeks, 99 I11. A. 518 [aff 198 Ill. 551. 64 NE 1039]; Warren Fitchburg R. Co., 8 Allen (Mass.) 227, 85 AmD 700.

V.

[b] A person attempting to cross intermediate tracks, in order to take an approaching train, is a passenger. Chicago, etc., R. Co. v. Chancellor, 60 I11. A. 525 [rev on other grounds 165 Ill. 438, 46 NE 269]; Young v. New York, etc.. R. Co., 171 Mass. 33, 50 NE 455, 41 LRA 193; Warren v. Fitchburg R. Co., 8 Allen (Mass.) 227, 85 AmD 700; Albin v. Chicago. etc., R. Co., 103 Mo. A. 308, 77 SW 153. But see Indiana Cent. R. Co. v. Hudelson, 13 Ind. 325, 74 AmD 254 (where a contrary view seems to have been adopted, and it was held that where plaintiff, without having procured a ticket. was crossing a sidetrack of a railroad to get on a passenger train at its usual place of stopping on the main track, but by the negligence of the employees of the company a switch had been left open, and the train was thrown on the sidetrack, and plaintiff was run over, he was not a passenger at the time of the injury, and that his right to cross the sidetrack was only the right that persons have to cross a railroad track at a public street or highway).

a

[c] On freight platform.-One having a mileage book good on railroad and undertaking to board a train by passing along the platform of a freight warehouse where, by the invitation of the railroad, he has been to check his trunks, is a passenger. Pineus v. Atlantic Coast Line R. Co., 140 N. C. 450, 53 SE 297, 111 AmSR 856.

Iowa. Allender v. Chicago, etc., R. Co., 37 Iowa 264. Mo.-Albin V. Chicago, etc., R. Co., 103 Mo. A. 308, 77 SW 153.

N. C.-Phillips v. Southern R. Co., 124 N. C. 123, 32 SE 388, 45 LRA 163.

Tex.-Texas Midland R. Co. V. Griggs, (Civ. A.) 106 SW 411.

[a] On freight train.-Even before purchasing a ticket one who in good faith applies to an agent for a ticket for a passage on the caboose of a freight car, and who is referred by the agent to the conductor, is a passenger and may recover for an injury received before getting on the train. Allender v. Chicago, etc., R. Co., 37 Iowa 264. Purchase of ticket generally see infra 1042.

V.

36. McKernan Manhattan R. Co., 54 N. Y. Super. 354; Norfolk, etc., R. Co. v. Galliher, 89 Va. 639, 16 SE 935.

[a] Illustration.-Where plaintiff came to a station intending to buy a ticket and become a passenger, but the ticket agent refused to sell him a ticket, claiming that he was drunk, which seems, however, not to have been the fact, after he failed to buy the ticket he was still lawfully at the station, with the duty of leaving it with ordinary promptness, and of not loitering there or using it for any other purpose. McKernan v. Manhattan R. Co., 54 N. Y. Super. 354.

37. Ala.-Louisville, etc., R. Co. v. Glascow, 179 Ala. 251, 60 S 103. Ill. Spannagle v. Chicago, etc.. R. Co., 31 Ill. A. 460.

Me. Shannon v. Boston, etc., Co., 78 Me. 52, 2 A 678.

R.

R.

Pa. Comly V. Pennsylvania Co.. 9 Pa. Cas. 369, 12 A 496. Eng.-Wilby v. Midland R. Co., 35 L. T. Rep. N. S. 244.

Ont.-Walker v. Great Western R. Co., 8 U. C. C. P. 161.

[a] Waiting in vacant car.Where a woman while waiting for a train left the waiting room which was being cleaned and by direction of the station agent entered a vacant car standing by the station platform, she was a passenger while in the car. Shannon v. Boston, etc., R. Co., 78 Me. 52, 2 A 678.

[b] Entering by improper route. -Attempting to enter a station by a route not meant for passengers, and which is in fact shut off by a barbed wire fence, makes an intending passenger a trespasser. Comly v. Pennsylvania R. Co., 9 Pa. Cas. 369, 12 A 496; Wilby v. Midland R. Co., 35 L. T. Rep. N. S. 244; Walker v. Great Western R. Co., 8 U. C. C. P. 161.

a

39

38

[a] Going to train by other than regular way, (1) in disregard of warnings, does not constitute one a passenger. Raymond v. Chicago, etc., R. Co., 126 Ill. A. 240. (2) Where a person on arriving late at the station finds that, if he takes the time necessary to approach the train which he desires to take in the ways openly and obviously provided by the company for safe passage, he will not be able to reach it before it starts, and he takes a short cut by crossing the tracks and is injured in consequence, he cannot rightfully be considered to have become a passenger. Chicago, etc., R. Co. v. Weeks, 99 Ill. A. 518 [aff 198 Ill. 551, 64 NE 10391.

39. Ala.-Widener V. Alabama Great Southern R. Co., 69 S 558; Louisville, etc., R. Co. v. Kay, 8 Ala. A. 562, 62 S 1014.

Ark. St. Louis, etc., R. Co. V. Laurence, 106 Ark. 544, 153 SW 799, Conn.-Baril v. New York, etc., R. Co., 90 Conn. 74, 96 A 164.

Ga. Smith v. Seaboard Air Line R. Co., 10 Ga. A. 227, 73 SE 523.

Iowa.-Dieckmann v. Chicago, etc., R. Co., 145 Iowa 250, 121 NW 676, 139 AmSR 420, 31 LRANS 338, 105 NW 526.

Ky.-Illinois Cent. R. Co. v. Laloge, 69 SW 1118, 24 KyL 696; Illinois Cent. R. Co. v. Laloge, 113 Ky. 896, 69 SW 795, 24 KyL 693, 62 LRA 405.

Minn.-Barnett V. Minneapolis, etc., R. Co., 123 Minn. 153, 143 NW 263, 48 LRANS 262.

Miss. Metcalf v. Yazoo, etc., R. Co., 97 Miss. 455, 52 S 355, 28 LRA NS 311; Andrews v. Yazoo, etc., R. Co., 86 Miss. 129, 38 S 773.

Nebr.-Fremont, etc.. R. Co. V. Hagblad, 72 Nebr. 773, 101 NW 1033, 106 NW 1041, 4 LRANS 254, 9 Ann Cas 1096, and note.

N. C.-Phillips v. Southern R. Co., 124 N. C. 123, 32 SE 388, 45 LRA 163.

S. C.-Mitchell v. Augusta, etc., R. Co., 87 S. C. 375, 69 SE 664, 31 LRA NS 442.

Tex.-Texas Midland R. Co. V. Geraldon, 103 Tex. 402, 128 SW 611, 29 LRANS 799, AnnCas1913A 45 [aff 54 Tex. Civ. Á. 71, 117 SW 1004]; Texas Midland R. Co. v. Griggs, (Civ. A.) 106 SW 411.

Vt.-Harris v. Stevens, 31 Vt. 79, 73 AmD 337.

Wash.-Gregg v. Northern Pac. R. Co., 49, Wash. 183, 94 P 911.

W. Va.-Kidwell V. Chesapeake, etc., R. Co., 71 W. Va. 664, 77 SE 285, 43 LRANS 999 and note. [a] Indefinite time.-(1) It is not enough that the person has come to the carrier's station with the intention of taking passage at some indefinite time in the future; he must come to the station a reasonable time before the departure of the train by which he is to travel. Har

the

[d] At boarding house.-Where a person, instead of waiting in station for a train, remained at a boarding house some two or three hundred feet from the depot until the arrival of the train, and endeavored to get on the train after it was in motion and was injured, such person was not a passenger. Spannagle v. Chicago, etc., R. Co., 31 Ill. A. 460.

38. Chicago, etc., R. Co. v. Weeks, 99 Ill. A. 518 [aff 198 Ill. 551, 64 NE 1039].

(2) A person is not entitled to the privileges of a passenger during the whole night before an early morning train which he intends to take. Barnett v. Minneapolis, etc., R. Co., 123 Minn. 153, 143 NW 263, 48 LRANS 262. (3) Where a person went to a station at eleven o'clock in the evening to purchase a ticket and board a train which left at four o'clock in the morning, and was told by the agent to wait until he could sell him a ticket, the right to remain in the station did not depend on whether he went there a reasonable time before the train left. Louisville, etc., R. Co. v. Kay, 8 Ala. A. 562, 62 S 1014. (4) One on the prem