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So, in the case of a young child travelling free with its parent, under a statute or a rule of the company, which permits such a child to travel without the payment of fare, the agreement in this case, if any, is made by the person with whom the child is travelling; but the child occupies towards the carrier the position of a passenger from the time it is received with the adult passenger. 12 And so a servant whose fare is paid by his master is a passenger. 13 In short, the relation of passenger and carrier does not arise, necessarily out of a payment of fare or a contract or obligation to pay it. The relation comes into existence whenever a person is rightfully carried by a carrier as passengers are carried.

8151. Riding by mistake.

In the same way one who takes a train intending to pay his fare with a ticket which he bona fide believes to be a good one is a passenger, though in fact the ticket is not good for a passage in that train, because the train is a limited one,14 or because it is a freight train which the passenger bona fide but wrongfully believed, would carry passengers. 15

One who through mistake gets into the wrong train is to be regarded as a passenger until he learns his mistake and has a chance to leave the train, or decides to stay on the train and pay his fare. 16

12 Austin v. Great W. Ry., L. R. 2 Q. B. 442 (1867); Littlejohn v. Fitchburg R. R., 148 Mass. 478, 20 N. E. 103 (1889); Whitney v. Pere Marquette R. R. (Mich.), 1 L. R. A. (N. S.) 352 (1906).

13 Marshall v. York N. & B. Ry., 11 C. B. 655 (1851); Mims v. Seaboard Air Line Ry., 69 S. C. 338, 48 S. E. 269 (1904).

14 Lake S. & M. S. R. R. v. Rosenzweig, 113 Pa. 519, 6 Atl. 545, 4 Cent. 712 (1886).

15 Boggess v. Chesapeake & O. Ry., 37 W. Va. 297, 16 S. E. 525 (1892). 16 Columbus, C. & I. C. Ry. v. Powell, 40 Ind. 37 (1872); Cincinnati, H. & I. R. R. v. Carper, 112 Ind. 26, 14 N. E. 352 (1887); Arnold v. Pennsylvania R. R., 115 Pa. 135, 8 Atl. 213, 6 Cent. 630 (1887).

TOPIC C-SPECIAL CLASSES OF PERSONS.

§ 152. Mail clerks and express messengers.

Mail agents or postal clerks and express messengers require to be carried in a special car, under special circumstances; and they are not strictly travellers, since they desire merely to do business on the railroad train. The carrier is therefore not bound to receive them as passengers, and it may make such arrangement as it pleases with regard to terms of carriage and liability for injury.1

If, however, mail clerks and express messengers are received and allowed to ride in baggage cars without special release of liability, they are entitled to the rights of passengers. They are, to be sure, carried in a different car from ordinary passengers, and to the extent to which it is dangerous to travel in such a car instead of the ordinary passenger car, the mail agent takes the risk of injury, but in all other respects the agent has the rights of an ordinary passenger. The same thing is true of an express messenger. If he is being carried by the railroad in a special car, under the contract with the express company, he is

1 Baltimore & O. v. Voight, 176 U. S. 498, 44 L. Ed. 560, 20 Sup. Ct. 385 (1900); Northern Pac. Ry. v. Adams, 192 U. S. 440, 48 L. Ed. 513, 24 Sup. Ct. 408 (1904); Bates v. Old Colony R. R., 147 Mass. 255, 17 N. E. 633 (1888); Hosmer v. Old Colony R. R., 156 Mass. 506, 31 N. E. 652 (1892); Louisville, N. A. & C. Ry. v. Keefer, 146 Ind. 21, 58 Am. St. Rep. 348, 38 L. R. A. 93, 44 N. E. 796 (1896). But see Pennsylvania R. R. v. Woodworth, 26 Ohio St. 585 (1875); Chamberlain v. Railroad, 11 Wis. 238 (1860).

2 Collett v. London & N. W. Ry., 16 Q. B. 984 (1851); Arrowsmith v. Nashville & D. R. R., 57 Fed. 165 (1893); Cleveland, C. C. & S. L. Ry. v. Ketcham, 133 Ind. 346, 33 N. E. 116, 36 Am. St. Rep. 550, 19 L. R. A. 339 (1893); Mellor v. Missouri Pac. Ry., 105 Mo. 455, 14 S. W. 758, 10 L. R. A. 36 (1890); Nolton v. Western R. R., 15 N. Y. 444, 69 Am. Dec. 623 (1857); Seybolt v. New York, L. E. & St. R. R., 95 N. Y. 562, 47 Am. Rep. 75n (1884); Hammond v. North Eastern R. R., 6 S. C. 130, 24 Am. Rep. 467 (1874); Norfolk & W. R. R. v. Shott, 92 Va. 34, 22 S. E. 811 (1895).

a passenger, and is entitled to all the rights of a passenger, except so far as he accepts a risk of being carried in an express car.3

As in the preceding cases, the carrier, in making arrangements to have sleeping-car facilities for the public, may obtain an indemnity contract from the sleeping-car company and an exemption contract from the employes of the sleeper company.1

153. Employes of the carrier.

The question has been much discussed whether a servant of the company who is being carried gratuitously is entitled to be regarded as a passenger. If the carriage is directly in connection with his work he is really, while being carried, engaged in his employment and his relation to the carrier is that of servant and certainly not that of a passenger; as where a workman on a construction or a gravel train is taken from place to place on the road, as his services are needed. If he is not actually working at his employment, but is being carried to or from the place of employment, by agreement with the company, as an assistance

3 Fordyce v. Jackson, 56 Ark. 594 (1891); Yeomans v. Contra C. S. Nav. Co., 44 Cal. 71 (1872); Union Pac. Ry. v. Nichols, 8 Kan. 505, 12 Am. Rep. 475 (1871) (semble); Ky. Cen. Railroad v. Thomas, 79 Ky. 160 (1880); Blair v. Erie Ry., 66 N. Y. 313, 23 Am. Rep. 55 (1876); Pennsylvania R. R. v. Woodworth, 26 Ohio St. 585 (1875); Chamberlain v. P. R. R., 11 Wis. 238 (1860).

4 McDermon v. Railroad, 122 Fed. 669 (1893); Russell v. Railroad, 157 Ind. 305, 61 N. E. 678, 87 Am. St. Rep. 214 (1901); Chicago, R. I. & P. Railroad v. Hamlin, 114 Ill. App. 141, 215 Ill. 525, 55 N. E. 332 (1904); Blank v. Railroad, 182 Ill. 332, 55 N. E. 332 (1899).

5 Travelers' Ins. Co. v. Austin, 116 Ga. 264, 42 S. E. 522 (1902); Evansville & R. R. R. v. Barnes, 137 Ind. 306, 36 N. E. 1092 (1894); Gilshannon v. Stony Brook R. R., 10 Cush. (Mass.) 228 (1852); Ryan v. Cumberland V. R. R., 23 Pa. St. 384 (1854); Benignia v. Pennsylvania R. R., 197 Pa. 384, 47 Atl. 359 (1900).

to his work, he would seem equally to be engaged in his employment, and not to be a passenger.

If, however, he receives as a gratuity or in part compensation for his services the right to travel free in the conveyance of the carrier upon his own business then in so travelling he is to be regarded as in all respects a passenger.7

TOPIC D-CARRIAGE OBTAINED BY MISREPRESENTATION.

§ 154. Persons never accepted in a proper place not pas

sengers.

If, however, a passenger is received by a servant of the carrier in a vehicle in which he knows that he has no right to ride, and that the conductor has no authority to permit him to ride,

6 Holmes v. Great Northern Ry. (1900) 2 Q. B. 409; Tunney v. Midland Ry., L. R. 1 C. P. 291 (1866); Southern Ind. Ry. v. Mesick (Ind. App.) 74 N. E. 1097 (1905); Gilman v. Eastern R. R., 10 Allen (Mass.), 233, 87 Am. Dec. 635 (1865); O'Brien v. Boston & A. R. R., 138 Mass. 387, 52 Am. Rep. 279n (1885); Manville v. Cleveland & T. R. R., 11 Ohio St. 417 (1860). Though not a passenger, yet being rightfully on the train, he may recover compensation for an injury caused by actual negligence imputable to the carrier, unless he is barred by the fact that the negligence was that of a fellow servant. Evansville & R. R. R. v. Maddux, 134 Ind. 571, 33 N. E. 345 (1893); Dobson v. New Orleans & W. R. R., 52 La. Ann. 1127, 27 So. 670 (1900); Texas & P. Ry. v. Scott, 64 Tex. 549 (1885).

7 State v. Western M. R. R., 63 Md. 433 (1884); Doyle v. Fitchburg R. R., 162 Mass. 66, 37 N. E. 770, 44 Am. St. Rep. 335, 25 L. R. A. 157 (1894); Dickinson v. West End St. Ry., 177 Mass. 365, 59 N. E. 60, 83 Am. St. Rep. 284, 52 L. R. A. 326 (1901); O'Donnell v. Allegheny V. R. R., 59 Pa. 239, 98 Am. Dec. 336 (1868); McNulty v. Pennsylvania R. R., 182 Pa. 479, 38 Atl. 524, 61 Am. St. Rep. 721, 38 L. R. A. 376 (1897); Peterson v. Seattle Traction Co., 23 Wash. 615, 43 Pac. 539 (1900). Pennsylvania R. R. v. Books, 57 Pa. 339, 98 Am. Dec. 229 (1868) which seem to hold that a servant riding on an employer's pass is not to be regarded as a passenger under any circumstances, must be considered overruled on that point; Higgins v. Hannibal & S. J. R. R., 36 Mo. 418 (1865), which holds that an employe riding free in a baggage car on his own business was not to be regarded as a passenger in the language of a statute giving damages for death, seems opposed to the others cited, and cannot be approved.

he does not become a passenger whether he pays fare or not; and so where the conductor informs him that passengers are forbidden to ride on a freight train, but he persuades the conductor to let him ride nevertheless, he is not a passenger.1

§ 155. Carriage of goods secured by fraud.

When the carriage of goods is secure by some fraud upon the carrier practiced by the shipper, the carrier does not occupy the position of a common carrier with regard to the goods. Thus, when one shipped a bag of money concealed in a bundle of hay and the money was lost, the carrier was held to be not responsible for the loss.2 And in similar cases a carrier has been held not responsible for money hidden in package of tea ;3 or in boxes with household goods. Perhaps another ground for resting the decision in cases of the kind just cited is that possession of the money hidden in the package was never taken by the carrier.

1 Indiana Stalcup v. Louisville, N. A. & C. Ry., 16 Ind. App. 584, 45 N. E. Rep. 802 (1897).

Kentucky-Ohio V. Ry. v. Watson, 93 Ky. 654, 21 S. W. 244, 40 Am. St. Rep. 211, 19 L. R. A. 310 (1893).

Maine-Dunn v. Grand Trunk Ry., 58 Me. 187, 4 Am. Rep. 267 (1870). Massachusetts-Powers v. Boston & M. R. R., 153 Mass. 188, 26 N. E.

446 (1891).

New York-Eaton v. Delaware, L. & W. R. R., 57, N. Y. 382, 15 Am. Rep. 513 (1874).

Tennessee-Washburn v. Nashville & C. R. R., 3 Head (Tenn.) 638, 75 Am. Dec. 784 (1859); Louisville & N. R. R. v. Hailey, 94 Tenn. 383, 29 S. W. 367, 27 L. R. A. 549 (1895).

Texas-Houston & T. C. R. R. v. Moore, 49 Tex. 31, 30 Am. Rep. 98 (1878); Gulf, C. & S. F. Ry. v. Campbell, 76 Tex. 174, 13 S. W. 19 (1890). Utah-Everett v. Oregon, S. L. & U. N. Ry., 9 Utah, 340, 34 Pac. 289

(1893).

Wisconsin-Lucas v. Milwaukee & St. Paul Ry., 33 Wis. 41, 14 Am. Rep. 735 (1873).

2 Gibbon v. Paynton, 4 Burr. 2298 (1769).

3 Bradley v. Waterhouse, 3 C. & P. 318 (1828).

4 Chicago & A. R. R. v. Thompson. 19 Ill. 578 (1858).

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